Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JW100725. Peter A. Warmerdam, Juvenile Court Referee.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Levy, J., Dawson, J.,
On March 21, 2007, appellant Darrell C., a minor, admitted an allegation, contained in a juvenile wardship petition (Welf. & Inst. Code, § 602), that he committed a lewd or lascivious act against a child under the age of 14. On May 9, 2007, at the disposition hearing, the court adjudged appellant a ward of the court; found that he did not have “exceptional educational needs”; ordered him committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ); declared appellant’s maximum period of physical confinement to be eight years; and awarded him 77 days of predisposition credit.
On appeal appellant contends the court abused its discretion in finding appellant did not have exceptional educational needs and erred in not ordering that an evaluation of appellant’s education needs be conducted and that an “Individual Education Program” be developed. We will affirm.
Because the facts of the instant offense are not relevant to the issues raised on appeal, we will forgo recitation of those facts.
Clinical psychologist R. Bruce Walker, Ed.D., in a report submitted to appellant’s counsel, stated he conducted a psychological evaluation of appellant for the purpose of providing counsel with information bearing on the questions of whether appellant was “competent to stand trial and whether he ha[d] a defense based on his emotional state.” The report indicates the following: appellant’s “thought process appeared to be logical” but “[h]is attention, concentration, and fund of knowledge appeared to be poor”; on the “TONI-III” test of “Non-Verbal Intelligence,” appellant’s score placed him in the “Below Average Range of intelligence when compared to his age group”; other tests indicated that appellant’s “attention, concentration, decision-making, cognitive flexibility, and executive functioning abilities are moderately to severely impaired at this time”; and Dr. Walker diagnosed appellant as suffering from, inter alia, “Conduct Disorder, Adolescent Onset, Severe,” “Adjustment Disorder, With Depressed Mood, Acute,” and “R/O Major Depressive Disorder, Single Episode, Severe Without Psychotic Features.”
The report of the probation officer (RPO) indicates the following: appellant is in the ninth grade; he admitted smoking marijuana 40 to 50 times and consum[ing] alcohol several times a week”; his school attendance is “[p]oor”; his grades consisted of five “F’s” and one “C”; the notation under the heading “Special Education/IEP” is “None”; he “has had referrals for non-suit at P.E., uncleared absences, not bringing a book to class, cuts, [and] not serving Saturday Work Program”; and he “appears to put forth little effort towards his education.”
As indicated above, the juvenile court found appellant “[did] not have exceptional educational needs”
DISCUSSION
Statutory and Regulatory Background
Education Code section 56000 declares that “[i]t is the … intent of the Legislature to ensure that all individuals with exceptional needs are provided their rights to appropriate programs and services which are designed to meet their unique needs under the federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.).” “Individuals with exceptional needs” means those persons who meet each of the several requirements enumerated in section 56026, including, as relevant here, that such persons be “[i]dentified by an individualized education program team as a child with a disability, as that phrase is defined in [the specified portion] of the United States Code” (§ 56026, subd. (a)) and that “[t]heir impairment, as described in subdivision (a), requires instruction, services, or both, which cannot be provided with modification of the regular school program” (§ 56026, subd. (b)).
Except as otherwise indicated, all statutory references are to the Education Code.
The relevant portion of the United States Code provides that “[i]n general[,] [¶] [t]he term ‘child with a disability’ means a child-- [¶] (i) with … serious emotional disturbance … [or] other health impairments … and [¶] who, by reason thereof, needs special education and related services.” (20 U.S.C. § 1401(3)(A).)
“[P]upils whose educational needs are due primarily to limited English proficiency; a lack of instruction in reading or mathematics; temporary physical disabilities; social maladjustment; or environmental, cultural, or economic factors are not individuals with exceptional needs.” (§ 56026 subd. (e).)
Section 56001 provides that “[i]t is the intent of the Legislature that special education programs provide [inter alia] … [¶] [that] (e) [e]ach individual with exceptional needs shall have his or her educational goals, objectives, and special education and related services specified in a written individualized education program.” An individualized education program (IEP) is a written statement for children with a disability that includes, among other information, (1) a statement of the child's present level of educational performance, including how the child’s disability affects the child’s participation and progress in the curriculum; (2) a statement of measurable annual goals, including benchmarks, or short-term objectives, for meeting the child’s educational needs; (3) a statement of the special educational and related services the child will receive; and (4) an explanation of the extent to which the child will not participate in regular education programs. (20 U.S.C. § 1414(d)(1)(A).)
Analysis
Citing information contained in Dr. Walker’s report and the RPO, appellant contends he meets the definition of “child with a disability” contained in title 20 United States Code section 1401(3)(A) and therefore, under Welfare and Institutions Code section 1742, the court erred in finding appellant was not a child with exceptional needs. There is no merit to this contention.
First, as indicated above, an “individual[] with exceptional needs” under Welfare and Institutions Code section 1742 does not include one whose educational needs are due primarily to “social maladjustment; or environmental, cultural, or economic factors .…” (§ 56026, subd. (e).) There is no evidence appellant’s behavior and apparent academic problems were not due to such factors.
Moreover, appellant’s argument ignores the critical language of section 56026, subdivision (a) that in order to qualify as an individual with exceptional educational needs, a minor must first be “[i]dentified by an individualized education program as a child with a disability.” (§ 56026, subd. (a), italics added.) The RPO indicates that no IEP has been prepared for appellant. Appellant does not suggest otherwise.
Indeed, appellant also argues that the court was required to refer appellant for an educational assessment and preparation of an IEP before appellant could be committed to the DCRJJ. However, we are unaware of any requirement that a minor who is not subject to an IEP be assessed, before being committed to the DCRJJ, to determine whether an IEP is needed. In fact, Welfare and Institutions Code section 1120, subdivision (b) states that the DCRJJ shall conduct an initial assessment of a ward to determine the appropriate dispositional education plan for the ward and annual assessments thereafter.
Welfare and Institutions Code section 1120, subdivision (b) provides: “The [DCRJJ] shall assess the educational needs of each ward upon commitment and at least annually thereafter until released on parole. The initial assessment shall include a projection of the academic, vocational, and psychological needs of the ward and shall be used both in making a determination as to the appropriate educational program for the ward and as a measure of progress in subsequent assessments of the educational development of the ward. [¶] The educational program of the department shall be responsive to the needs of all wards, including those who are educationally handicapped or limited-English-speaking wards.”
We conclude the juvenile court fulfilled its obligations concerning appellant’s educational needs and did not abuse its discretion in finding he did not have exceptional educational needs.
DISPOSITION
The judgment is affirmed.