Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court No. DL016905 of Orange County, Gregory W. Jones, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Arthur J. LaCilento, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
Jonathan M. was originally declared a ward of the juvenile court after he admitted that he committed a residential burglary in December 2003. (See Pen. Code, §§ 459-460.) He violated a condition of the probation granted to him after this admission by committing petty theft, a charge which he again admitted in October 2004. (See Pen. Code, §§ 484, 488.) In January 2005, he admitted to a new charge, felony animal cruelty, after he killed the family dog. (See Pen. Code, § 597, subd. (a).) In July 2005, while serving a term of incarceration for the cruelty-to-animals charge, he was found in violation of his probation and ordered to serve an additional term in a juvenile educational institution. Less than a year later, he was again found in violation of his probation because he failed to abide by the rules of the juvenile facility and was terminated from it. Three months after this violation, an amended subsequent petition was filed against him, charging misdemeanor vandalism based on his misconduct while at juvenile hall. (See Pen. Code, § 594, subds. (a)-(b).) He admitted this violation, and the juvenile court committed him to the California Youth Authority (CYA).
In the dispositional order, the court determined the maximum period of confinement was five years, two months: the midterm of four years for the residential burglary, two months for the petty theft, eight months (one-third the midterm) for the animal-cruelty felony, and four months for the misdemeanor vandalism, to be served consecutively.
Jonathan now contends the juvenile court’s dispositional order must be reversed. He argues the evidence was insufficient to support the court’s findings. He also maintains that the court abused its discretion in its dispositional order when it failed to conform to the procedures laid out in Welfare and Institutions Code sections 602, subdivision (b), 711, 712 and 713. We affirm the dispositional order.
All further section references are to the Welfare and Institutions Code unless otherwise stated.
FACTS
First Offense
According to the probation officer’s report, Jonathan broke into the home of one of his friends by smashing the front living room window while the owner was away. He then stole a Sony PlayStation II game console and several games and gaming books for the device.
Second Offense
According to the Detention Report prepared by a probation officer using a police report, Jonathan discharged a flare gun on the grounds of Capistrano Valley High School during school hours. He admitted that he had stolen the flare gun and flares a few days before from a store. He also revealed that he fired the flare gun to impress his friends and then hid the extra flares in a trashcan.
Third Offense
Jonathan, in meeting with his probation officer, informed the officer that he had killed the family dog because he wanted to get even with his sister for hitting him with an umbrella. Jonathan’s older brother witnessed the event, and reported that Jonathan had wrapped a leash around the dog’s neck, placed a rubber band around its nose and then began smashing its head against the pavement. The brother indicated that he tried to stop Jonathan but that he was “out of control.”
Fourth Offense
While incarcerated at Juvenile Hall, Jonathan and his roommate were ordered to have their dinner in their room as punishment for failing room inspection. When the food was delivered to their room, the two minors began vandalizing the room, throwing food, furniture and personal items around and eventually damaging the door so badly that it had to be replaced.
Dispositional Hearing
The dispositional hearing commenced on November 29, 2006 and concluded on December 4, 2006. The juvenile court commissioner stated at the commencement of the hearing that he had already read and considered a report prepared by the assigned deputy probation officer early in the proceedings, as well as an updated report by that same officer, in which a CYA commitment was recommended for Jonathan. The court also received and read a report by privately retained Dr. Michael Perrotti, and a study by a consulting firm, Bodin & Associates, also privately hired by Jonathan’s parents. Additionally, the court noted he had read “a significant amount of information that was provided by and generated from the Cinnamon Hills Residential educational facility . . . [as well as] both volumes . . . of the court file . . . .”
It should be noted that Jonathan informed the probation officer that he did not want any further placements, as the treatment facility “did not work” and—in his estimation—no other placement would work either. He wanted to be returned to his parents under house arrest: He just wanted to get out as he was tired of being locked up.
The probation report noted that each of Jonathan’s offenses had resulted in increasingly restricted placement and probation control. The last placement was at Cinnamon Hills Youth Crisis Center at which Jonathan was found “uncooperative”—as were his parents—“aggressive and violent towards peers/staff and . . . a danger to himself and others.” In the last eight months of his residency at the facility, Jonathan had failed to make any progress, having almost daily discipline or behavioral problems. Jonathan acknowledged his failure at Cinnamon Hills but excused it, blaming that failure on his having “too many issues,” and his desire to be returned home under house arrest. He questioned the probation officer, insisting that he saw “other kids coming in and leaving—how come I can’t leave?” The officer also learned that, of the nine different “residential placements” contacted for Jonathan, all nine of them refused to accept him.
The probation officer noted that, according to Jonathan’s mother, he had never been hospitalized and only took medication for thyroid imbalance. She denied any alcohol or drug problems in the family, and added that Jonathan had never run away and only stolen a “pistol” once. She emphasized that he had been diagnosed in the third grade as having attention deficit and hyperactivity disorder (ADHD) and took Ritalin for this condition for two years. Jonathan’s father insisted he stop the medication, and the minor had not taken anything for this condition for over four years at the time of the report. However, the mother agreed to abide by whatever medication prescription would be ordered.
The officer noted that Jonathan was in a special education program at Capistrano High School. The public school had attempted to find an educational placement for Jonathan, but the parents had refused to cooperate. When placed with Orange County Mental Health, the mother refused to allow him to continue. In 2003, Jonathan threatened his teacher and tried to hurt himself. Due to Jonathan’s discharging a flare gun at the school, he was barred from attending the school, and another placement was being investigated. Dr. Walter Ernsdorf of the school reported that Jonathan had engaged in “disruptive behavior, willfully def[ying] the valid authority of supervisors, teachers, administrators, school officials, and other school personnel. Overall, the minor’s performance in high school ha[d] been poor.” The parents refused to comply with outpatient mental health services by missing appointments with psychiatrists and staff, failing to provide the medication ordered for Jonathan, and refusing the required consent for a residential facility placement.
According to Juvenile Hall staff, Jonathan consistently refused to comply with the rules and regulations, and they had compiled six pages of incident reports, such as his banging on his door, yelling and screaming at all hours, filling a cup with urine to throw on staff, damaging the facility, spitting on windows, threatening staff, yelling obscenities at other minors and staff, throwing temper tantrums, stealing other minors’ property, and fighting with other minors, particularly over gang issues. Every method of discipline had been employed and failed. In summation, the probation officer opined that the “underlying theme in this case appears to be the parents undermining of treatment for the minor since he was placed in special education in the third grade, their refusal to cooperate with any treatment plan and the minor’s own willful defiance [of] authority.” Because the probation officer concluded Jonathan needed “a more tightly controlled program than is available at the local level[, the officer believed Jonathan would] . . . personally benefit from the programs offered by the DJJ/CYAand aftercare. Additionally, such a commitment must be considered, in view of the minor’s prior record and [the] obvious threat he is to himself and to the community.”
CYA is now the Division of Juvenile Justice. (See Govt. Code, §§ 12838, 12838.5; see In re Geneva C. (2006) 141 Cal.App.4th 754, 756, fn.2.)
The report emphasized that Jonathan had already spent 357 out of a potential maximum confinement time for any local commitment of 365 days. Moreover, the local facilities were not “secure” as well as being designed for younger members. The only one available for his age group involved a six-week program for gang involvement and substance abuse, but Jonathan had only eight days left on any local commitment and had “made little to no progress. Due to his continued negative mentality and behavior” the local program was rejected as not in “the minor’s best interest.” Moreover, none of the local facilities had programs or staff to address Jonathan’s “serious psychological problems” and all nine residential programs had refused to accept him.
CYA, on the other hand, was shown to have 10 institutions, six conservation camps and three reception department centers with a variety of “treatment alternative programs” for a full range of age groups. Each minor would receive a full panoply of tests before a diagnosis or treatment program was developed, including medical and dental evaluations. Furthermore, upon release, each minor would receive supervision through parole agents to “readjust[] to the community including residential placement, family counseling, job development and placement in school enrollment.” The duration of the programs at CYA would meet Jonathan’s needs, unlike the situation at the local level. Finally, the CYA intake staff would accept Jonathan, and had proposed a one-year custody period with parole supervision until he reached age 21. The updated report indicated that the probation officer continued to stand by her original recommendation although a few months had passed since her original report.
Counsel for Jonathan called two experts to testify at the hearing: Dr. Perrotti and Leli Sarsozo, a member of Bodin & Associates. Perrotti testified, consistent with his report, that his neuropsychiatric expertise led him to conclude that Jonathan suffered from organic brain dysfunction in the areas controlling cognition, emotion, and reasoning, possibly due to oxygen deprivation suffered from a near-drowning incident during Jonathan’s infancy. Perrotti also diagnosed Jonathan as having serotonin syndrome resulting from prolonged domestic violence, and noted another doctor’s discovery that Jonathan had been misdiagnosed with ADHD. The medication administered for this condition, Ritalin, probably worsened Jonathan’s condition. Perrotti concluded that Jonathan would not benefit from placement at CYA, based on his knowledge of CYA’s programs from the time he worked for them and CYA’s rejection of developmentally delayed patients. Perrotti actually hypothesized that a CYA placement would be detrimental to Jonathan because he could not get treatment for his organic brain problems and he would not receive the educational needs of a developmentally delayed minor. Finally, Perrotti opined that Jonathan did not seem to have any sociopathic tendencies, based on the explanations Jonathan provided for his misconduct.
Although Jonathan’s mother informed the probation officer that only once did Jonathan’s father strike the minor—and that was due to Jonathan’s malicious killing of the family dog—the probation officer had eight reports of domestic violence committed on the family by the father, several of which had been investigated and “substantiated.”
Sarsozo testified that, as an educational consultant and registered nurse, she researched possible treatment facilities specifically targeting Jonathan’s needs, as those needs were determined by Perrotti. She found 12 such facilities, of which three would accept Jonathan, although they were located outside the state of California. Of those three, she visited two of them, finding them both sufficiently custodial to insure Jonathan’s inability to leave, yet still providing the treatment he required. She conceded, however, that Jonathan’s parents would retain the power to withdraw Jonathan at any time and to limit the medication he would receive there. However, as stipulated to by the parties, Jonathan’s parents—if called to testify—would consent to any of the placements in which Jonathan was accepted.
DISCUSSION
Sufficiency of Evidence
Jonathan contends the evidence is insufficient to support the court’s findings and conclusion ordering him to CYA. Under section 734, a CYA commitment can only be ordered after the juvenile court is “fully satisfied that the mental and physical condition and qualifications of the [minor] are such as to render it probable that he will be benefitted from the reformatory educational discipline or other treatment provided” by CYA. Jonathan characterizes the probation department’s information as outdated and as failing to incorporate or even consider Perrotti’s expert conclusions. Thus, he argues, the information available to the court was deficient to support the decision to follow the probation officer’s recommendation of a CYA commitment.
On review of a CYA commitment, we must review the entire record in a light most favorable to the juvenile court’s disposition order and uphold it if substantial evidence is present. (See In re Jerry M. (1997) 59 Cal.App.4th 289, 298; see also § 1737.5 [CYA commitment is a judgment under Penal Code].) When less restrictive placements have been attempted but have been consistently unsuccessful and the minor continues to be unwilling to face up to responsibility for his crimes, a CYA commitment is not an abuse of the juvenile court’s discretion. (E.g., In re Samuel B. (1986) 184 Cal.App.3d 1100, 1103-1104.) Moreover, less restrictive placements need not be tried before a CYA commitment is ordered. The sole issue is whether the minor will “probably” benefit from the CYA commitment. (See In re James H. (1985) 165 Cal.App.3d 911, 922-923; In re Samuel B., supra, 184 Cal.App.3d at p. 1104.)
The record supports the court’s finding and commitment order. No other in-state placement was possible at all except the commitment to CYA. The two out-of-state placements found by the privately retained investigator were similar to the program already tried and proven unsuccessful by Jonathan’s abject refusal to comply and his ability to manipulate his parents into undermining the treatment. Moreover, the court could not order Jonathan to an out-of-state commitment as it would lose jurisdiction over him, resulting in his parents’ continued control—or lack of control—over him.
Another very important factor was that Jonathan had spent 357 of a possible 365 days in less-restrictive placements with no discernible improvement. Moreover, his continued recidivism was escalating in seriousness and violence: His killing of the family dog left his sister in fear of him, and several of his threats were to kill staff members once he got out.
Perrotti rested his conclusions on the characterization that Jonathan was not violent and had never been properly diagnosed and medically treated. However, as the court noted, Perrotti’s information was incomplete or at least colored by Jonathan’s explanations, which he accepted without verification. Lastly, killing the family dog in the cruel and malicious manner employed by Jonathan was quite violent, and such animal cruelty is quite often a precursor to violence towards other humans.Such a tendency in Jonathan was indicated by his repeated and aggressive behavior towards other minors and staff in his various placements.
The dog killing was not an isolated and aberrant incident: Reports indicated Jonathan had beaten the dog over a year before its actual death.
The court also emphasized that Perrotti’s information on CYA was outdated, having worked there over 24 years earlier. Finally, CYA was the only completely locked and secure facility, a factor essential for Jonathan as his parents could continue undermining his treatment by removing him from any of the private facilities.
The court considered each of the appropriate factors: Jonathan’s age, psychiatric needs, medical limitations, educational requirements, past performance and offenses. It then reviewed each of the possible alternatives, concluding that it was most probable that the CYA commitment would benefit the 16-year-old. The record supports this, particularly in light of the parents’ continued unreliability and inconsistencies. The court’s decision was well supported and properly within its reasoned discretion.
We note that the mother told Perrotti that Jonathan had suffered a severe near-drowning as an infant, yet informed the probation officer that he had never been injured nor required hospitalization. It should also be noted that Jonathan’s father insisted he stop taking the Ritalin after two years of use, but that was at least four years before Perrotti was consulted, and Perrotti concluded that this medication was at least in part to blame for Jonathan’s escalating problems. However, Jonathan never committed an offense or came to the attention of the authorities until long after he discontinued the medication, thus contradicting this hypothesis. Finally, the parents insisted on keeping Jonathan at home with them in spite of all efforts to get specialized help for him until the probation officer informed them that a CYA commitment appeared imminent. It was at that point that the experts were retained, and the parents agreed to abide by the requirements of any alternative placement.
Compliance with Sections 710, 711, 712 and 713
Jonathan complains that the juvenile court failed to comply with the provisions of sections 711, 712 and 713 when it ordered him to CYA. Specifically, he contends the court should have invoked the various alternative procedures for mental health patients or developmentally disabled minors, leading to specialized local intensive treatment programs under the very recent statutes. These statutes provide discretionary special procedures and services whenever “it appears to the court” that a minor is mentally ill or is developmentally delayed. (See § 711, subd. (a); see also 10 Witkin, Summary of Cal. Law (2007 supp.) Parent and Child, § 834, p. 243.)
Section 711 provides, in subdivision (a) that, when “it appears to the court, or upon request . . ., that a minor who is alleged to come within the jurisdiction of the court under Section 602, may have a serious mental disorder, is seriously emotionally disturbed, or has a developmental disability, the court may order that the minor be referred for evaluation, as described in Section 712.” Subdivision (b) of that statute provides that a minor may waive any such referral for a mental health evaluation under section 712 (see fn. 9, post) or the multidisciplinary team review under section 713. (See fn. 10, post.)
Section 712 provides, in subdivision (a), that an “evaluation ordered by the court under Section 711 shall be made, in accordance with the provisions of Section 741, by an appropriate and licensed mental health professional who meets one or more of the following criteria: [¶] (1) The person is licensed to practice medicine in the State of California and is trained and actively engaged in the practice of psychiatry. [¶] (2) The person is licensed as a psychologist under . . . the Business and Professions Code.” Subdivision (b) of that section provides that the “evaluator selected by the court shall personally examine the minor, conduct appropriate psychological or mental health screening, assessment, or testing, according to a uniform protocol developed by the county mental health department and prepare and submit to the court a written report indicating his or her findings and recommendations to guide the court in determining whether the minor has a serious mental disorder or is seriously emotionally disturbed, as described in Section 5600.3, or has a developmental disability, as defined in Section 4512. . . .” Subdivision (c) provides that the disposition court “shall determine whether the minor has a serious mental disorder or is seriously emotionally disturbed, . . . or has a developmental disability . . . . If the court determines that the minor has a serious mental disorder, is seriously emotionally disturbed, or has a developmental disability, the case shall proceed as described in Section 713. If the court determines that the minor does not have a serious mental disorder, is not seriously emotionally disturbed, or does not have a developmental disability, the matter shall proceed without the application of Section 713 and in accordance with all other applicable provisions of law.” Subdivision (d) declares that the juvenile court retains the “legal authority . . . to refer a minor for mental health evaluation or treatment as provided in Section 370, 635.1, 704, 741, 5150, 5694.7, 5699.2, 5867.5, or 6551 of this code, or in Section 4011.6 of the Penal Code.”
Section 713 provides in subdivision (a) that for “any minor described in Section 711 who is determined by the court under Section 712 to be seriously emotionally disturbed, have a serious mental disorder, or have a developmental disability, and who is adjudicated a ward of the court . . . the dispositional procedures set forth in this section shall apply.” Subdivision (b) of the same statute provides for the procedures in which a multidisciplinary team will be formed to “evaluate the minor’s full range of treatment needs and may include representatives from local probation, mental health, regional centers, regional resource development projects, child welfare, education, community-based youth services, and other agencies or service providers. The multidisciplinary team shall include at least one licensed mental health professional as described in . . . Section 712. If the minor has been determined to have both a mental disorder and a developmental disorder, the multidisciplinary team may include both an appropriate mental health agency and a regional center.” Subdivision (c) establishes the duty of the multidisciplinary team to “review the nature and circumstances of the case, including the minor’s family circumstances, as well as the minor’s relevant tests, evaluations, records, medical and psychiatric history, and any existing individual education plan or individual program plans. The multidisciplinary team shall provide for the involvement of the minor’s available parent, . . . in its review, including any direct participation in multidisciplinary team proceedings as may be helpful or appropriate for development of a treatment plan in the case. The team shall identify the mental health or other treatment services, including in-home and community-based services that are available and appropriate for the minor, including services that may be available to the minor under federal and state programs and initiatives, . . . At the conclusion of its review, the team shall then produce a recommended disposition and written treatment plan for the minor, to be appended to, or incorporated into, the probation social study presented to the court.” Subdivision (d) of that statute provides that the “court shall review the treatment plan and the dispositional recommendations prepared by the multidisciplinary team and shall take them into account when making the dispositional order in the case. The dispositional order in the case shall be consistent with the protection of the public and the primary treatment needs of the minor as identified in the report of the multidisciplinary team. [Italics added.] The minor’s disposition order shall incorporate, to the extent feasible, the treatment plan submitted by the multidisciplinary team, with any adjustments deemed appropriate by the court.” Subdivision (e) of the statute provides that the “dispositional order in the case shall authorize placement of the minor in the least restrictive setting that is consistent with the protection of the public and the minor’s treatment needs, and with the treatment plan approved by the court. The court shall, in making the dispositional order, give preferential consideration to the return of the minor to the home of his or her family, . . . with appropriate in-home, outpatient, or wraparound service, unless that action would be, in the reasonable judgment of the court, inconsistent with the need to protect the public or the minor, or with the minor’s treatment needs.”
These procedures and services are not mandatory (see § 711) and only apply if “approved by a resolution adopted by the Board of Supervisors. A county may establish a program under one, two, or all three of these statutes on a permanent basis or on a temporary basis for a specific number of years. Funds from the Mental Health Services Act used to fund a program may be used only for services related to mental health assessment, treatment, and evaluation.” (10 Witkin, Summary of Cal. Law, supra, Parent and Child, § 834, p. 243; see § 710.) There is no evidence as to its adoption by the Orange County Board of Supervisors.
Nonetheless, Jonathan characterizes Perrotti as a qualified expert who provided sufficient evidence for the court to believe Jonathan needed the specialized services and procedures. Moreover, he argues that had the court referred him to the multidisciplinary team for diagnosis under section 713, subdivision (e), the court would have been mandated to order the least restrictive setting and give preference to returning the minor to his family. Because the court failed to refer him to either the multidisciplinary team for evaluation under section 713 or the mental health examiner described in section 712, he concludes he was denied the opportunity for appropriate treatment, and the dispositional order violated his due process protections.
This statement is not entirely accurate. Under section 713, subdivision (e), the court must order a disposition that is the least restrictive setting but still “consistent with the protection of the public . . . .” (See fn. 10, ante.)
Jonathan concedes he never requested either type of referral. The Attorney General characterizes this failure as a waiver of the procedural provisions because a timely objection would have provided the juvenile court with the opportunity to correct the harm. (See People v. Daniels (1991) 52 Cal.3d 815, 891 [failure to object to prosecutor’s arguments constituted waiver].) The Attorney General, in its alternate argument, proposes that the court never found Jonathan had a serious mental disorder or developmental disability. Without such a finding, the provisions of sections 711, 712 and 713 do not apply at all.
The record supports both of the Attorney General’s arguments. Jonathan never requested consideration under any of these provisions, and the juvenile court never made a finding that he was either suffering from a serious mental illness or was developmentally disabled. To the contrary, the juvenile court found that Jonathan was “non-compliant and defiant” irrespective of the type of placement. This attitude led to behavioral problems wherever he went, except in the limited instances when he chose to comply with the rules, which strongly indicated that he had the ability to comply. The court rejected Perrotti’s diagnosis for many reasons, not the least of which was because Perrotti “totally accepted as truth, Jonathan’s version of [] events.” The court emphasized Jonathan’s in-custody “behavior was atrocious.” The court concluded that it had to consider the safety of society, and that Jonathan posed a “continued threat” to that safety.
Jonathan has failed to show that the provisions of sections 711-713 apply to Orange County dispositions or that the court was under a sua sponte duty in this case to order the different evaluations for such services. On the other hand, the record supports the juvenile court’s commitment to CYA, which we affirm.
WE CONCUR: RYLAARSDAM, J., BEDSWORTH, J.