Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Fresno County. Jon N. Kapetan, Judge, Super. Ct. No. 01CEJ601195.
Before Vartabedian, Acting P.J., Cornell, J. and Kane, J.
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 and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Appellant Jesse M., a minor, admitted allegations contained in a juvenile wardship petition (Welf. & Inst. Code, § 602) that he threatened to commit a crime that would result in the death or great bodily injury of another person (Pen. Code, § 422), and that in committing that offense he acted for the benefit of, at the direction of, or in association with a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). Following the subsequent disposition hearing, the juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), formerly known as the California Youth Authority (CYA); declared a maximum period of physical confinement of six years; and found that appellant was not an “individual with exceptional [educational] needs.”
On appeal, appellant challenges the juvenile court’s finding that appellant was not an individual with exceptional needs and the juvenile court’s failure to order an exceptional needs assessment. Appellant also argues that if these claims are deemed waived, his counsel’s failure to raise them below constituted ineffective assistance of counsel. We will affirm the judgment.
We assume without deciding appellant’s claims are properly before us. Therefore, we need not address his claim of ineffective assistance of counsel.
BACKGROUND
A “DETENTION HEARING MEMO” prepared by the probation officer in January 2007 states, “Records indicated that the minor has been diagnosed with ADHD [attention deficit hyperactivity disorder] and has been prescribe[d] [medication].” The report of the probation officer (RPO), prepared February 15, 2007, states that “[a] violation of probation report . . . reflects that on June 6, 2003, the minor failed a boot camp screening due to taking prescribed psychotropic medication for Attention Deficit Disorder.”
The RPO, under the heading “SCHOOL,” indicates the following: Appellant is in the 10th grade; he is in the “Mainstream” program; school records indicate that during the 2002-2003 school year appellant had 148 unexcused absences; in the fall 2006-2007 semester, appellant earned six C’s; previously, at the Forward Bound Academy he earned one C and seven D’s and was dropped from Forward Bound Academy in March 2005 for not attending school; appellant reported that he had not attended school since May 2005 and that he was expelled from school for having a gun in his possession; and between February 1996 and May 2000 appellant was suspended from school eight times for various transgressions, including fighting, attempting to steal school supplies, and committing an unprovoked assault on another student.
At the disposition hearing on February 20, 2007, the probation officer stated, “I am not sure if this is a minor with exceptional educational needs. We would have to investigate that.” Later in the hearing, the juvenile court stated, “The Court upon reading the probation report at this time finds that educational records indicate that [appellant] is not an individual with exceptional needs.”
DISCUSSION
Appellant argues as follows: He has “exceptional needs,” as evidenced by indications in the record that he suffers from attention deficit hyperactivity disorder (ADHD) and has exhibited severe behavior and attendance problems in school, and therefore the juvenile court abused its discretion in finding that appellant did not have exceptional needs. This matter, appellant argues further, “must be remanded for a declaration that appellant is an individual with exceptional needs and for the development of an Individualized Educational Program before [he] is committed to the [DCRJJ].”
Statutory and Regulatory Background
Education Code section 56000 declares that “all individuals with exceptional needs have a right to participate in free appropriate public education,” and states, “It 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 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 “Identified 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 “Their impairment, as described in [section 56026,] subdivision (a), requires instruction, services, or both, which cannot be provided with modification of the regular school program” (§ 56026, subd. (b)). “[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).)
Except as otherwise indicated, all further statutory references are to the Education Code.
Section 56001 provides that “It is the intent of the Legislature that special education programs provide [inter alia]: [¶] … [¶] (e) Each 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 levels 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)(i).) When a child has an IEP and the juvenile court orders the child committed to DCRJJ, the child cannot be conveyed to DCRJJ until the IEP has been furnished to DCRJJ. (Welf. & Inst. Code, § 1742.)
Analysis
Appellant argues that the juvenile court erred in finding that he was not an individual with exceptional needs within the meaning of section 56026. There is no merit to this contention. As indicated above, under section 56026, a child, in order to qualify as an individual with exceptional needs, must first be assessed by an IEP team and found to have a disability. There is no record evidence that appellant ever was assessed and determined to be an individual with exceptional educational needs.
Indeed, appellant appears to assume that no IEP was prepared for him in that he also argues that the juvenile court erred in failing to order an assessment to determine if appellant qualified as an individual with exceptional needs. Appellant bases this argument on In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.).
In Angela M., the minor, Angela, admitted violating probation granted in a prior wardship proceeding, and the juvenile court ordered her committed to DCRJJ. However, the court-appointed psychologist who examined Angela recommended placement and treatment in a psychiatric/treatment-based facility. He opined that Angela was suffering from bipolar disorder and appeared to exhibit symptoms of ADHD. He also “specifically recommended that Angela ‘undergo an IEP’—that is, that she be evaluated by education professionals to determine whether she had special educational needs.” (Angela M., supra, 111 Cal.App.4th at p. 1399.) The appellate court stated that, based on this evidence, “The juvenile court … was clearly on notice that Angela may have special educational needs.” (Id. at p. 1398.)
The court noted that the version of California Rules of Court, rule 1493(e)(5), in effect at that time, “implements [the] legislative mandate to provide free special education services to all eligible children by directing that the juvenile court, when declaring a child a ward of the court, ‘must consider the educational needs of the child....’” (Angela M., supra, 111 Cal.App.4th at p. 1398, fn. omitted.) The court noted further that “This mandate to California’s juvenile courts is also incorporated in Standards of Judicial Administration …, which provide that the juvenile court should ‘(1) Take responsibility, with other juvenile court participants at every stage of the child’s case, to ensure that the child’s educational needs are met .…’ (Cal. Stds. Jud. Admin. § 24(h).)” (Id. at p. 1398, fn. 5.) The court held: “Although the record indicates special attention to Angela’s education needs was appropriate, the juvenile court did not mention this issue when committing her to the CYA. Remand is necessary to permit the juvenile court to make proper findings, on a more fully developed record, regarding Angela’s educational needs.” (Id. at p. 1399.) Specifically, the court ordered that on remand the juvenile court was “to determine whether an evaluation of Angela’s special educational needs should be conducted.” (Ibid.)
Former California Rules of Court, rule 1493 was renumbered rule 5.790, effective January 1, 2007.
Effective January 1, 2004, the Judicial Council of California removed the requirement from former California Rules of Court, rule 1493(e)(5) that the juvenile court “‘must consider the educational needs of the child.’” The version of former rule 1493 in effect at the time of appellant’s disposition hearing did not contain this requirement. Respondent, however, does not argue that the juvenile court was not required to consider appellant’s educational needs. Effective January 1, 2007, former section 24(h) of the California Standards of Judicial Administration was redesignated Standard 5.40(h) of the California Standards of Judicial Administration and remains in effect. We assume without deciding that at all times relevant here, as at the time Angela M. was decided, in fashioning the disposition order the juvenile court was required to consider appellant’s educational needs.
Angela M. is inapposite. That case stands for the simple proposition that “prior to committing [a minor] to the CYA, the juvenile court ha[s] a duty to consider or determine whether [the minor] ha[s] special educational needs.” (Angela M., supra, 111 Cal.App.4th at p. 1398.) In Angela M., the court appeared completely unaware of this duty. Here, by contrast, the juvenile court made a specific finding on the exceptional needs question and stated that it had considered the RPO in arriving at its conclusion. Moreover, in Angela M. the examining psychologist specifically recommended that Angela “be evaluated by education professionals to determine whether she had special educational needs” (id. at p. 1399). In the instant case, there was no evidence of any similar recommendation by any mental health professional.
As appellant notes, the record indicates that appellant had been diagnosed with ADHD. However, the record also indicates appellant was taking medication for this condition. Moreover, the record indicates appellant was in the “Mainstream” program in school; there is no indication in the record he had ever been in special education classes; and appellant’s counsel made no claim at the disposition hearing that appellant needed an IEP or had any special educational needs. In our view, there is nothing in the record to compel the conclusion that the juvenile court failed to consider adequately appellant’s educational needs or was remiss in failing to order an assessment of such needs.
Finally we note that DCRJJ was required to conduct its own assessment of appellant’s educational needs upon commitment and at least annually thereafter. (Welf. & Inst. Code, § 1120, subd. (b).) Therefore, appellant did not suffer any prejudice from the juvenile court’s failure, if any, to consider his educational needs before committing him to DCRJJ, or the juvenile court’s failure to order an assessment of appellant’s educational needs.
DISPOSITION
The judgment is affirmed.