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In re Derrick B.

California Court of Appeals, First District, Second Division
Mar 25, 2008
No. A117505 (Cal. Ct. App. Mar. 25, 2008)

Opinion


In re DERRICK B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. DERRICK B., Defendant and Appellant. A117505 California Court of Appeal, First District, Second Division March 25, 2008

NOT TO BE PUBLISHED

Solano County Super. Ct. No. J33574

Haerle, Acting P.J.

I. INTRODUCTION

Derrick B. appeals a dispositional order of April 12, 2007, committing him, at age 17 years and 4 months, to Fouts Springs Youth Facility (Fouts), following a long history of wardship and a recent absconding from a residential program at New Foundations. Despite many tries at less restrictive placements over more than four years of wardship, and a ceaseless history of offending and failed dispositions in Solano and San Francisco Counties, Derrick urges that his placement at Fouts was an abuse of discretion. Specifically, he claims a lack of “reasonable efforts” over the years to eliminate the need for his removal from home (Welf. & Inst. Code, § 727.2, subd. (e)(2)), particularly assistance to relative caretakers. We affirm the order.

Unspecified statutory references are to the Welfare and Institutions Code.

II. FACTUAL AND PROCEDURAL BACKGROUND

The record is voluminous, but a good summary, stressing more recent events, is found in the last probation officer report, which is unchallenged. We quote it at length, making some changes in brackets, and note first that Derrick was removed from his biological mother at birth due to drug exposure, his biological father being unknown, and that his maternal aunt and uncle, who also cared for one of his four half-siblings, became his adoptive mother and father. The death of the adoptive father in 2002 was traumatic for Derrick and marked the start of a pattern of disobedience and defiance.

The report recounts poor performance on probation this way: “At the age of 13 [after the death of the adoptive father], [Derrick] was granted Wardship and referred to an intensive supervision caseload as a result of vandalism and an assault [injuring someone by throwing a rock through a hotel window]. His behavior continued to decline as he re-offended in the community and he violated EMP (Electronic Monitoring Program.) He was then placed at New Foundations from 05-12-04 through 09-30-04. He was released from New Foundations and was placed on the aftercare program. He performed poorly in the aftercare program resulting in him again being placed on EMP. Due to excessive violations and his failure to follow directives he was terminated from the aftercare program as well as EMP then transferred to a general supervision caseload. He continued to perform poorly and failed to attend school.

“[He] continued to have contact with law enforcement, which resulted in (aside from the present offenses) 9 additional charges/citations. He has been cited for theft of personal property, false information to an officer, trespassing, minor in possession of alcohol, minor in possession of tobacco (2), and three city ordinances related to curfew violations. During this period, the minor’s mother/grandmother had demonstrated difficulty in supervising the minor and lack[ed] control over him. It is also suspected that she may have been intimidated by him at times. His mother/grandmother was elderly and often had difficulty supervising him. She also failed to accurately and consistently report his poor behavior to Probation. She died in September 2005 as a result of a heart attack; the minor was ordered into foster care in November 2005. He was placed in a foster home on 11-10-05, left the same day without returning, and a bench warrant was ordered.

“He returned on the bench warrant and was allowed to reside with his sister, Lorainne D[.] Initially, the minor responded well to her rules and structure, however, his behavior soon declined by not attending school and having curfew issues. He left her home and failed to return and a bench warrant was ordered on 02-21-06.

“The minor returned on the bench warrant on 07-20-06 as a result of coming to the attention of BART police having suspected that he did not pay a fare (the DA did not file on this charge). [He] was in custody and was later transported back to San Francisco to resolve the outstanding matter regarding the present offenses. He was released from custody in San Francisco to his biological aunt/adoptive sister Peggy G[.] on 08-22-06. He and Mrs. G[.] appeared for an in-office appointment on 09-07-06.

“After his release from custody to Peggy G[.], he failed to report to a scheduled appointment and he failed to drug test . . . . Mrs. G[.] explained that the minor is not a behavior problem in the home; but also admitted that he does not spend much time at the home. She is concerned that he refuses to attend school and he is ‘in the streets most of the day.’ She . . . is equally concerned that the minor spends much of his time with older women that purchase material items for him; she added that the minor reported that one of his ‘girlfriends’ rented a car for him. She believes that the minor is in need of a higher level of intervention as she does not believe she will have an impact on him changing his behavior.

“The minor failed to appear to his dispositional hearing in October 2006 and a bench warrant was ordered. He was returned on the bench warrant after coming in contact with law enforcement related to a citation regarding [Pen. Code, § 148.9, subd. (a) and Health & Saf. Code, § 11355]. It was ordered that he be placed in a suitable foster home or institution. It was determined that a group home setting would be the most appropriate placement to meet [his] treatment needs. [He] was placed in the EE’s Residential Group Homes in San Jose on 01-04-07 and he fled from the placement the [next morning]. [He] was returned to Solano County on 01-09-07. Since [he] was returned to our Juvenile Detention Facility, he had a myriad of disciplinary issues, which resulted in his being physically restrained on two occasions. The minor initially explained that he was not satisfied with the group home as he felt that it was too chaotic for him. He then admitted that he did not feel that he needed a group home and that when he left he was hoping to stay gone well after his 18th birthday . . . . [He] expressed that if given another opportunity to be place in a group home setting he would not flee and he would give himself a better chance at being successful.

“At the time of his 01-02-07 disposition hearing, he was ordered into a locked group home facility or New Foundations as well as a GPO. The minor was placed in New Foundations on 01-30-07. During a fire drill [three days later, he] pushed his way through the door, climbed over the locked gate, and fled the premises. Subsequently, a bench warrant was ordered[; he] returned on the warrant in San Francisco on 03-10-07 and transferred in to Solano County for disposition on the present charges.”

The “present charges” (Pen. Code, §§ 69 [felony resising an officer] and 148.9, subd. (a) [misdemeanor false identification to an officer]) are described this way, from a San Francisco police report summarized in the probation report: “[O]n 03-10-07, the minor ran into the police station claiming that he had been shot in the leg. He initially told officers that his name was Keith O’Neil Hayes with date of birth 03-27-85. Officers began to render aid and a Medic arrived; it was discovered that the minor had not been shot. Once he was stabilized officers began to question him about where the attack had occurred as he had marks on his face from where he had been struck and his mouth was bleeding. He told officers that he had been robbed of his wallet, jacket, and his identification near the Ping Yuen housing projects in San Francisco. As the officers continued to interview him he became very agitated, upset, and uncooperative. Officers had previously received a bulletin regarding three males and females looking for a black male that stated they were going to beat [] up. When officers confirmed that they were aware of his identity the minor became more upset.

“The minor was told that he would be arrested on the warrant. [He] told officers ‘I am going to spit in your face if you come near me nigga! You’re a faggot bitch and you ain’t nothing without that badge nigga!’ . . . [T]he . . . minor had already begun to spit. [He] continued to be aggressive as he called all of the officers ‘punks and bitches.’ He began to kick the office partitions and had to be physically restrained. [He] was subsequently booked and transported to the juvenile detention facility in San Francisco.

“VCO: [He] explained that he had not planned to leave the New Foundations program but there was a fire drill and he decided at that time to leave. He pushed through the line of other minors and ‘jumped’ the fence. He was able to contact a friend shortly after he returned to San Francisco.” In a disposition interview, Derrick said that he left New Foundations “because he thought that he would be in the program until he was 18 and he did not want to remain in the program that long.” He explained, for the criminal charges, that he went to the police station believing he had been shot, following an assault and robbery by three youths in Chinatown. He said his goal was to get his GED and vocational training [at New Foundations] and that he did not “plan to run from the program.”

On March 13, 2007, before transfer-in to Solano County, Derrick admitted in San Francisco to giving a false identity to a police officer (count 2), and the three factually-related other counts were dismissed. On March 28, 2007, after transfer-in, he admitted violating probation by leaving New Foundations, acknowledging a maximum confinement time of four years, seven months.

The probation report recommended placement at Fouts: “The minor is in need of a higher level of intervention and structure as evidenced by his ongoing criminality, prior failed interventions, and his inability or refusal to comply with . . . orders of the Court. [He] has had ample opportunity to improve his behavior and throughout the course of Wardship, the least restrictive alternatives to placement have been considered on numerous occasions. He has had intensive community supervision, he was placed in the New Foundations program on two separate occasions, he has been placed on EMP, and he has had two opportunities to comply while in the home of relatives. The minor has issues o[f] abandonment, he lacks impulse control, and he has escalated in criminality. Additionally, he revealed that his drug usage is escalating, which is a concern.

“This treatment plan will focus on educating and treating the minor on substance use issues, stabilizing him in an academic setting that will allow him to escalate his high school credit accumulation or prepare him to take the GED, and the plan should focus on emancipation skills such as employment, budgeting, and independence while also providing structured services. The minor would be afforded access to a[n] Independent Living Program ([ILP)] upon his release from placement that will focus on helping [him] prepare for his future into adulthood. Upon completion of his placement program an ILP component will be important as the minor does not have willing or positive family ties in the community, so reunification resources are limited. It is also believed that the minor would be better served being away . . . while working on the recommended treatment plan.

“A recommendation to the New Foundations program was considered[;] however, the minor was deemed inappropriate for the program based on nearing adulthood, level of street sophistication, the importance of isolating him from his familiar communities, while focusing on emancipation. While it is possible for [him] to receive emancipation services through the [ILP] by an outside agency, this is not the focus of the New Foundations program; therefore, this could create an inability to properly serve the minor. Additionally, he has been previously placed in this program twice and he failed to effectively improve his behavior.

“Additional recommendations include drug testing, volunteer work, mandatory individual and substance abuse counseling, and participation in an [ILP] upon release from placement.”

At a dispositional hearing on April 12, 2007, the court followed the report’s recommendations over a defense argument for another assignment to New Foundations, and emphasis that Derrick said in a detention report that he absconded due to the birth of a child he fathered. The court found that reasonable efforts had been made to eliminate the need for removal from home, and to allow his return. Derrick timely appeals.

III. DISCUSSION

Derrick’s attack on the disposition, in an opening brief, is this: “The record shows [] little in the way of services provided to Derrick or to his mother or subsequently, his sisters, to enable them to adequately care for him. Rather, this grieving orphan has spent most of his teenage years locked up in juvenile hall and on the streets, before finally being consigned to a remote ‘camp’ facility, [Fouts]. Because substantial evidence does not support the juvenile court’s finding that reasonable efforts had been made to prevent the need for Derrick to be removed from his relatives’ home or to allow him to return home, the dispositional order must be reversed.” The only elaboration is this: “[T]he probation reports and case plans do not show reasonable efforts to provide services to Derrick’s sisters that might have helped them more effectively care for their orphaned brother. For example, neither Lorraine nor Peggy appear to have been provided family therapy, parenting training, or any other services; and Derrick himself does not seem to have received psychotherapy, as was recommended in the psychological evaluation, mentoring, or anything else that might have made his stay with his sisters more successful. Rather the probation officer and the court simply gave up on trying to keep Derrick with his family, in contravention of the statutory scheme requiring that ‘everything reasonably possible is done to facilitate the safe and early return of the minor to his or her home’ ” (quoting, apparently, § 727.2, 1st ¶).

This attack is both extraordinarily broad in its assault on four-plus years of efforts, and narrow in its stress on a single facet—services to recent relative caretakers. The statutory scheme makes disposition depend on all relevant factors, including “(1) the age of the minor, (2) the circumstances and gravity of the offense committed by the minor, and (3) the minor’s previous delinquent history” (§ 725.5), and Derrick’s brief pays little or no attention to those factors.

The Attorney General responds with a detailed analysis of all factors, plus Derrick’s family, social and mental health background, and the many prior attempts to rehabilitate him. Derrick apparently disputes none of this, having filed no reply brief and having offered no additional elaboration on his position.

We find this showing by Derrick to be woefully inadequate to show, as he must in order to gain reversal, abuse of discretion (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329-1330). First, much of what he raises is beyond our review at this stage, four and a half years into wardship, and after many appeal able dispositional and post-dispositional orders where such issues could have been raised (§ 800) but, as far as the record reveals, were not. Most recently, for example, the court had made reasonable-efforts findings on December 18, 2006, and January 24, 2007, when ordering commitments to (1) foster care or another suitable institution, and (2) New Foundations. We see no indication of appeal or objection to the recommendations, findings, or out-of-home placements made at those times, or anytime earlier.

Next, Derrick’s complaint of no reasonable efforts to assist removal from earlier home placements is beyond remedy. His adoptive parents, for example, died long before the order we review here. Similarly, the complaint of not receiving “psychotherapy, as was recommended in the psychological evaluation,” evidently refers to an evaluation done in early April of 2004, when he was 14, over three years before the order we review here, and when the adoptive mother was still alive. He cites no authority suggesting how we could review any shortcomings now, or meaningfully remedy them, and that report reflected circumstances existing many years earlier.

Turning to reasonable efforts toward in-home retention or return at the time of the April 2007 disposition here, the only apparent option was Peggy Gaines. We see nothing indicating that Lorraine D[.], the sister who had taken him before then, before he ran away from her Pittsburgh home in early 2006 to live on the streets of San Francisco, his whereabouts unknown for months, was still available as a placement. In fact, Derrick ignores a December 2006 report that states: “Contact was made with the minor’s sister, Lorainne D[.]. Based on the minor’s past behavior and the fact that she has other children in the home, she is not allowing the minor to return to her residence.” Derrick cites nothing suggesting that Dacanay’s position could have been altered by offering “services,” or even that she would have been receptive to services should he have been “returned” to her.

As for Peggy G[.], the record might be clearer had Derrick’s counsel raised some objection to lack of return, which she did not, but what we do have in the record strongly suggests that Peggy G[.] was unavailable as well. Indeed, counsel’s only argument to the court at the dispositional hearing was that Derrick should have another placement out-of-home, at New Foundations, and we may presume that counsel knew her client’s options. Peggy G[.] never appeared at the hearings leading to the current placement, and a report from December 2006 reveals, under “relative placement report”: “[T]he minor was released from custody on 08-22-06 to his biological aunt [sic], Peggy G[.]. Probation has concerns about the minor being released to her care as the minor needs a lot of structure and it was not hopeful that he would respond to her efforts. However, the primary concern is that the minor’s uncle, Andrew G[.] (husband) also resides in the home and he has a lengthy criminal history . . . of theft, drug, corporal injury to spouse, person ate to make other liable [sic], and battery related offenses. He has been on probation and parole. . . . [¶] On 09-07-06, these concerns were explained [and] it was also explained to both the minor and Mrs. G[.] that Probation most likely would be making a placement recommendation to either foster care or a group home. On 10-17-06, contact was made with Mrs. G[.] and the recommendation was discussed. She agrees with the recommendation and stated that ‘he can’t expect people to do for him the rest of his life.’ ” (Italics added.) Derrick’s briefing does not even mention these facts, which indicate both that Peggy G[.] was not an appropriate placement and that she was not in favor of him returning to her home.

A related, telling aspect of Derrick’s brief is that it urges that lack of supported reasonable efforts requires that the dispositional order be “reversed” yet offers no idea what should be done on remand. It also offers no analysis of how a placement back with Peggy G[.] would be in Derrick’s best interests, given the apparently undisputed evidence that he needs a highly structured and secure environment if there is any chance of him reforming, finishing his high school education, and learning the emancipation skills he needs now that he is 18 years old.

Abuse of discretion, or error in the reasonable-efforts finding, is not shown.

IV. DISPOSITION

The order of April 12, 2007, is affirmed.

We concur: Lambden, J., Richman, J.

Section 727.4, subdivision (d) provides in part: “(5) ‘Reasonable efforts’ means: [¶] (A) Efforts made to prevent or eliminate the need for removing the minor from the minor’s home. [¶] (B) Efforts to make it possible for the minor to return home, including, but not limited to, case management, counseling, parenting training, mentoring programs, vocational training, educational services, substance abuse treatment, transportation, and therapeutic day services. [¶] (C) Efforts to complete whatever steps are necessary to finalize a permanent plan for the minor.”


Summaries of

In re Derrick B.

California Court of Appeals, First District, Second Division
Mar 25, 2008
No. A117505 (Cal. Ct. App. Mar. 25, 2008)
Case details for

In re Derrick B.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DERRICK B., Defendant and…

Court:California Court of Appeals, First District, Second Division

Date published: Mar 25, 2008

Citations

No. A117505 (Cal. Ct. App. Mar. 25, 2008)