Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 505145. Nan Cohan Jacobs, Judge.
Candice L. Christensen, 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, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Kane, J.
Appellant, J.S., a minor, admitted allegations set forth in a juvenile wardship petition (Welf. & Inst. Code, § 602), that she committed assault likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), and that in doing so, she personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)). Following the subsequent disposition hearing, the juvenile court ordered appellant committed to the Department of Corrections and Rehabilitation, Juvenile Justice (DCRJJ), and declared appellant’s maximum period of physical confinement to be seven years.
On appeal, appellant argues that (1) the court erred in that it identified appellant as a child with “special educational needs, ” but failed to inquire as to whether an individualized education program (IEP) had been prepared for appellant; and (2) the matter must be remanded to determine if an IEP for appellant exists. Appellant argues further that if on remand it is determined an IEP exists, the court must forward it to DCRJJ, and if there is no IEP extant, the court must determine whether an evaluation of appellant’s educational needs should be conducted.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural Background
Near the close of the disposition hearing, after ordering appellant committed to DCRJJ, the court made various other findings and orders, including the following: “Court finds that [appellant] is an individual with special, educational needs.”
In its written order of commitment to DCRJJ, a form in which the court indicates its findings and orders by placing marks in boxes, the court indicated: “The youth is an individual with exceptional needs.” There is no mark in the box by the statement: “The youth has an individualized education program....”
Our discussion of the relevant factual background is taken from the Dispositional Social Study (DSS), filed January 6, 2010, and reviewed by the court in advance of the disposition hearing.
The Instant Offense
The victim, the cashier at a convenience store, reported the following: Appellant attempted to leave the store without paying for a candy bar, and when the victim tried to stop appellant from leaving, appellant “turned and punched [her] in the face several times and bit her in the abdomen.” The victim suffered pain, swelling and bruising to her face, and a two-inch bleeding wound on her abdomen.
Educational Background
In the section entitled “Minor’s Statement and Social History” (emphasis and unnecessary capitalization omitted), the DSS states: “... the minor has not attended or been enrolled in school in two years. She stated she last attended school while in a group home in Mariposa County while in out-of-home-placement through the Court. She is a special education student. She expressed a capability to achieve B and C grades. While incarcerated in the Stanislaus County Juvenile Hall [SCJH], the minor stated she is pursuing her General Education Degree....”
According to a SCJH incident report, appellant, while confined in SCJH, “refused to participate in school” on four occasions between November 12, 2009, and December 18, 2009.
Next to the heading “Special Education Status, ” the DSS states: “The minor is a Special Education student.”
Additional Factual Background
At the time the DSS was prepared, appellant was 18 years old. She ran away from home following her release from SCJH on March 27, 2009, and since then “she has been transient.”
Appellant was initially adjudged a ward of the court in December 2007, for trespassing (Pen. Code, § 602, subd. (m)), a misdemeanor. She has been found in violation of probation six times “for repeatedly absconding from Court ordered placements and disobeying the placement program rules.” In addition, since June 2007, she has received 11 citations for offenses that “predominantly involve trespassing at motels and participating in prostitution and drug activity, ” which were “closed at intake, indicating a lack of desire to modify her behavior.”
“[A]ccording to Juvenile Justice Behavioral Health, [appellant] was previously diagnosed as having an Adjustment Disorder and an addiction to controlled substances and alcohol.” Appellant reported “current, frequent usage” of controlled substances. She uses crystal methamphetamine “once every three days” and drinks alcohol “every day.” She used crystal methamphetamine and drank alcohol on the day of her arrest for the instant offense.
DISCUSSION
As indicated above, appellant first argues that the juvenile court erred in that it identified appellant as a child with “exceptional needs, ” but failed to inquire as to whether an IEP has been prepared for appellant. The People counter that the court’s statement at the disposition hearing that it “finds [appellant] is an individual with special, educational needs” was an “offhand comment” that was “clearly not intended in any way to suggest that there had been a finding of ‘exceptional needs’ within the meaning of Education Code section 56026.” (Footnote omitted.)
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, “[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 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 by subdivision (a), requires instruction and services which cannot be provided with modification of the regular school program in order to ensure that the individual is provided a free appropriate public education pursuant to section 1401(9) of Title 20 of the United States Code” (§ 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 “[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 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).)
When a child has an IEP and the court orders the child committed to the DCRJJ, the child cannot be conveyed to the DCRJJ until the IEP has been furnished to the DCRJJ. (Welf. & Inst. Code, § 1742.)
Analysis
As indicated above, the court made a finding, in its written order, that appellant is an “individual with exceptional needs.” This explicit finding in a written order, in the statutory language, cannot be dismissed as an off-hand comment. On the other hand, it is difficult to discern a basis for this finding. We recognize that the DSS contains the statement that appellant is a “Special Education student, ” which implies that she has been found to be an “individual with exceptional needs” (§ 56026), and the statutory and regulatory framework summarized above indicates that an IEP should be prepared for a person so designated. However, the DSS makes no mention of an IEP. Moreover, the basis for the statement that appellant is a “Special Education student” is not clear. Insofar as the DSS reveals, that statement may be based solely on appellant’s statements to the probation officer. Nevertheless, the court’s finding that appellant is an individual with exceptional needs and the probation officer’s characterization of appellant as a “Special Education student, ” considered in conjunction with the statutory statement of legislative intent that an IEP be prepared for an individual with exceptional needs, are sufficient, in our view, to justify a remand to the juvenile court for the purpose of determining whether an IEP has been prepared for appellant. We will further direct that if an IEP exists, it be forwarded to DCRJJ.
The question remains as to the proper disposition if on remand it is determined that no IEP exists. Appellant argues that in that event, the juvenile court should be directed to determine whether an evaluation of appellant’s educational needs should be conducted. We disagree.
Appellant bases her argument on In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.). In that case, the minor (Angela) was adjudged a ward of the court for making criminal threats; she was placed on probation; she subsequently admitted violating probation; and the juvenile court ordered her committed to the California Youth Authority (CYA), the predecessor to DCRJJ.
However, a 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 he “believed she may also be experiencing symptoms associated with ADHD.” (Angela M., supra, 111 Cal.App.4th at pp. 1398-1399, fn. omitted.) He also stated Angela “‘must undergo an IEP... assessment.’” (Id. at p. 1395, italics added.) The appellate court stated that, based on this evidence, “[t]he juvenile court... was clearly on notice that Angela may have special educational needs.” (Id. at p. 1398.) And, noting that under former California Rules of Court, rule 1439(e)(5), a juvenile court, when declaring a child a ward of the court, has an obligation to “‘consider the educational needs of the child’” (Angela M., at p. 1398, fns. omitted), 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 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, fn. omitted.)
All rule references are to the California Rules of Court.
In 2004, former rule 1439.5 was amended to remove the requirement that the juvenile court consider the educational needs of the child in making a disposition order. The current renumbered version of this rule is found in rule 5.790(f)(5), which states, “The court must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. If the court limits this right, it must follow the procedures stated in rule 5.650.” This newer version of the rule was in effect at the time of appellant’s disposition hearing. The People, however, do not argue that the juvenile court was not required to consider appellant’s educational needs. And, the Standards of Judicial Administration Recommended by the Judicial Council provide that the juvenile court should “[t]ake responsibility, ... at every stage of the child’s case, to ensure that the child’s educational needs are met....” (Cal. Stds. Jud. Admin., § 5.40(h).) As at the time Angela M. was decided, in fashioning a disposition order, a juvenile court is required to consider a minor’s educational needs.
Angela M., however, is distinguishable because there, as indicated above, a report submitted to the juvenile court contained a psychologist’s unchallenged opinion that the minor “‘must undergo’” an IEP assessment. There is no such clear indication of the need for an IEP assessment in the instant case. Indeed, as discussed above, the only evidentiary support in the record for the claim that appellant may be in need of special educational services is the statement in the DSS, the support for which is unclear, that appellant is a “Special Education student.” Neither this factor, nor the evidence that appellant has been diagnosed with and has drug and alcohol abuse problems, compels the conclusion that if no IEP exists, an evaluation must be conducted to determine if one should be prepared. We note, in addition, 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).) We note further, that nothing in the record would preclude the juvenile court, on remand, from ordering such an evaluation, in the exercise of its duty to consider appellant’s educational needs.
DISPOSITION
The matter is remanded to the juvenile court. The juvenile court is directed to determine if an individualized education program has been prepared for appellant. If so, the court is directed to furnish the individualized education program to the Department of Corrections and Rehabilitation, Juvenile Justice. If no individualized education program is in existence, the court shall proceed in a manner consistent with the views expressed in this opinion. The judgment is otherwise affirmed.