Opinion
E052428
12-15-2011
In re C.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.R., Defendant and Appellant.
Michele Cella, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. INJ021531)
OPINION
APPEAL from the Superior Court of Riverside County. Charles Everett Stafford, Jr., Judge. Affirmed as modified.
Michele Cella, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Kevin Vienna, Deputy Attorney General, for Plaintiff and Respondent.
I. INTRODUCTION
In this juvenile delinquency proceeding, defendant, C.R., appeals from a dispositional order declaring him a ward of the court and placing him in the custody of the probation officer for placement in a relative's home, foster home, or group home. He contends: (1) the evidence was insufficient to support the trial court's finding that continuing in his mother's home was contrary to his welfare; and (2) the court erred by failing to order reunification services for his mother. We reject the first contention and agree with the second. We will modify the dispositional order to require the probation department to provide reunification services and affirm the order as modified.
II. SUMMARY OF FACTS AND PROCEDURAL HISTORY
On May 20, 2010, C.R.'s four-year-old niece (the victim) complained to her mother of pain and burning in her vaginal area. The victim told her mother that C.R. had "touched her and made her 'pee pee' hurt."
The victim was interviewed by an employee of the Riverside County Department of Public Social Services. The victim told the interviewer that she was being watched by her grandmother (C.R.'s mother) at the grandmother's residence. She said that she and C.R. were playing in C.R.'s room when C.R. reached into her pants and touched her vagina and she touched his penis. She said this happened on two occasions.
On July 28, 2010, C.R. was interviewed by detectives. He was 15 years old at the time. C.R. initially denied any wrongdoing. He subsequently admitted touching the victim's vagina on three occasions from January 2010 through May 2010. He said he also rubbed the victim's buttocks during the second encounter and, on the third encounter, kissed the victim's vagina, rubbed her vagina, and asked her to touch his penis. He exposed his penis to her and she touched it. According to the probation officer's report, C.R. repeatedly told the detectives "'it was a stupid thing to do,' and expressed regret. He stated he touched the victim because he was 'curious.'"
C.R. was detained and booked into juvenile hall. In a delinquency petition filed pursuant to Welfare and Institutions Code section 602, C.R. was initially charged with one count of violating Penal Code section 288, subdivision (a)—committing a lewd and lascivious act upon a child under the age of 14 years. The court found probable cause for detaining C.R. and that continuance in his parent's home was contrary to his welfare.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On August 20, 2010, the petition was dismissed because the investigating officer was on vacation and would not return until after the time within which the jurisdictional hearing must be held. C.R. was released to the custody of his mother. That same day, the district attorney filed a new petition alleging nine counts of violating Penal Code section 288, subdivision (a).
The district attorney subsequently amended the petition to add two additional counts: (1) felony false imprisonment (Pen. Code, § 236); and (2) misdemeanor lewd conduct with a minor (Pen. Code, § 647.6). C.R. then admitted these new counts and the court found them true. Upon the motion of the district attorney, the remaining counts were dismissed. The court declared C.R. to be within the court's jurisdiction under Welfare and Institutions Code section 602. The court referred the matter to the probation department for a dispositional report and recommendation.
According to the probation report, C.R.'s mother and her four children, including C.R., were the subjects of juvenile dependency proceedings in 2003 and 2004 arising from allegations that C.R.'s mother failed to protect her children from physical abuse by her boyfriend. The children were removed from the mother's custody and, six months later, the family was reunified. The report also refers to allegations made in 2000 of general neglect by the mother and sexual abuse by C.R.'s father against C.R.'s sister. The parents divorced and C.R.'s father moved away in 2000. The report also states that an "allegation of sexual abuse was substantiated as to [C.R.]," although it is not clear what this statement is based on.
C.R. was assessed for risk of committing sexual offenses in the future based upon the "JSORRAT-II" assessment tool. He received a score that placed him in the "moderate range of risk"—a category in which 24.3 percent of individuals sexually recidivate as juveniles. The probation officer stated that C.R. enjoyed attending school, but "was 'lazy' and missed school without permission."
C.R.'s mother reportedly said "she 'felt bad' for the victim and [C.R.]" and "was 'surprised' with [C.R.'s] actions." The mother told the probation officer she did not know why C.R. did it. Although she described her relationship with C.R. as "'close,'" she added that he is quiet and does not say a lot to her. She said she did not talk to C.R. about the offense because it was "hard" to do so and she did not know what to say to him.
The mother said that C.R. is well-behaved at home, assists with cleaning, follows her rules, and is respectful. Regarding C.R.'s truancy, the mother stated that C.R. was responsible for getting himself to school because of her work hours. She did not discipline him for the offense.
The case was screened by the "Desert Screening Committee." This committee was concerned about allegations of sexual abuse against C.R. and his sister, as well as "the mother's failure to address the instant offense after his release from Juvenile Hall." According to the probation officer, the committee recommended that C.R. be "placed" because of "the lack of community resources available to facilitate group counseling to address [C.R.'s] inappropriate sexual behavior, and the mother's failure to address [C.R.'s] actions after his release." The officer added: "The committee believed [C.R.] should be placed in a facility to provide counseling to address his inappropriate sexual behavior, as well as provide counseling to address the possibility of him being a victim of a sexual offense."
In assessing C.R.'s family, the probation officer noted the lack of serious behavioral issues regarding C.R. at school and satisfactory behavior while detained, as well as "his truancy" and poor school performance. The officer also noted the mother's failure to address C.R.'s delinquent behavior following his release from juvenile hall, her failure to address his educational needs, and "her history of child neglect."
The probation officer considered allowing C.R. to continue in his mother's custody as a ward or on a deferred entry of judgment program. However, the probation officer rejected these possibilities "due to the lack of community resources and the mother's history of not addressing the minor's sexually acting out, or academic deficiencies." The officer also considered whether to recommend commitment to the Division of Juvenile Justice, but stated such a disposition was inappropriate because of C.R.'s lack of previous delinquent behavior. The probation officer recommended that C.R. be adjudged a ward of the court and placed in a foster home, group home, or relative home. Such placement, the officer explained, "will provide [C.R.] counseling to address his negative sexual behavior, as well as providing him the necessary supervision and structure to ensure compliance."
C.R. filed a motion to dismiss the petition in the interest of justice, pursuant to section 782. In the alternative, C.R. requested that the court grant deferred entry of judgment, pursuant to section 790. C.R. objected to the probation officer's reliance on the JSORRAT-II assessment, denied the allegations of sexual conduct with his niece and of confessing to such conduct, and objected to facts recited in the probation report as misleading and false.
The court read and considered C.R.'s motion to dismiss and, following a hearing, denied the motion in its entirety. The court then declared C.R. a ward of the court, found that continuation in the mother's home was contrary to C.R.'s welfare, and directed he be placed in accordance with the probation officer's recommendation. The court did not order the probation department to provide reunification services to the mother. C.R. appealed from the dispositional order.
Additional facts will be discussed below where pertinent to the issues raised in this appeal.
III. ANALYSIS
A. Sufficiency of the Evidence to Support the Placement Order
C.R. contends the court erred in ordering him placed away from home because there was no evidence that remaining at home was contrary to his welfare. We disagree.
"[J]uvenile proceedings are primarily 'rehabilitative' [citation], and punishment in the form of 'retribution' is disallowed [citation]. Within these bounds, the court has broad discretion to choose probation and/or various forms of custodial confinement in order to hold juveniles accountable for their behavior, and to protect the public. [Citation.]" (In re Eddie M. (2003) 31 Cal.4th 480, 507.) Among the alternatives available to the juvenile court for placing its wards are unsupervised probation, supervised probation and placement in the home of a relative, a community care facility or foster home, and commitment to a "juvenile home, ranch, camp, . . . forestry camp," "county juvenile hall," or the Department of Corrections and Rehabilitation, Division of Juvenile Facilities. (§§ 727, subds. (a), (b), 730, subd. (a), 731, subd. (a)(4).). The placement need not follow any particular order or proceed from a less restrictive to a more restrictive placement. (In re Eddie M., supra, at p. 507; see also In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1088 [a "lockstep escalation of dispositions 'falls short of the particularized consideration which underlies the entire juvenile court system.'"].)
Under section 726, before ordering the removal of the ward from the physical custody of a parent or guardian, the court must find "one of the following facts: [¶] (1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian." (§ 726, subd. (a); see also Cal. Rules of Court, rule 5.790(d).) Although the court must find at least one of these facts, it is enough to recite the language of the statute or to mark a check-box on a form indicating which of the statutorily required facts the court found. (In re Kenneth H. (1983) 33 Cal.3d 616, 620-621.) In this case, the court referred to the third fact specified in section 726 by expressly finding that continuance in his mother's home "is contrary to the welfare of [C.R.]."
We review juvenile placement decisions in wardship proceedings for abuse of discretion. (In re Asean D. (1993) 14 Cal.App.4th 467, 473 [Fourth Dist., Div. Two].) We "will not lightly substitute [our] decision for that rendered by the juvenile court" and must indulge all reasonable inferences to support the juvenile court's decision. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) There is no abuse of discretion when the record contains substantial evidence supporting the findings and the decision. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186; In re Tyrone O. (1989) 209 Cal.App.3d 145, 151.) Substantial evidence is evidence that is "reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]" (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) "We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding." (In re Cole C. (2009) 174 Cal.App.4th 900, 916.)
Applying these standards here, we conclude there is sufficient evidence in our record to support the court's findings. The evidence includes the probation report, which describes the sexual conduct between C.R. and his four-year-old niece, which C.R. admitted. After C.R. was detained for this conduct, his mother stated she did not discipline him for the offense. Indeed, she did not talk to C.R. about the offense because she believed it was hard and she did not know what to say. The probation officer noted that the mother did not appear to be concerned about C.R.'s behavior and did not attempt to enroll him in any counseling. The officer further stated that the mother has done nothing to address C.R.'s truancy.
The Desert Screening Committee recommended that C.R. be placed outside his home because of the mother's failure to address C.R.'s actions. A placement outside the home, the committee believed, would benefit C.R. by providing him with counseling to address his inappropriate sexual behavior and the possibility that he was sexually abused. The probation officer pointed to these concerns in arriving at her recommendation.
The evidence regarding C.R.'s offending conduct, together with evidence of the mother's apparent lack of concern, her apparent inability or unwillingness to address the problems, and her history of prior neglect, taken together, provide sufficient evidence for the court's finding that remaining in his mother's home is contrary to C.R.'s welfare.
C.R. argues that it was inappropriate for the court to conclude that he could not have been effectively separated from younger children. The argument is a red herring. It is based upon a statement in the detention hearing report prepared at the outset of the case that "[C.R.'s] access to younger children is unknown." C.R. asserts that this implied "that there was no way [C.R.] could have been supervised at home as long as there were deficiencies on the mother's part," and then argues that the "implication is inaccurate." The detention report was not introduced as evidence at the dispositional hearing and there is nothing to indicate that the court agreed with the statement, drew the inference C.R. suggests, or that it had any bearing on the court's dispositional order.
C.R. next asserts a series of arguments under the heading, "there was no indication that the mother was unable or unwilling to 'address' [C.R.'s] offense." (Capitalization and bolding omitted.) He contends, first, that there was no evidence that his mother was unable or unwilling to obtain counseling for him. Second, the mother's failure to discuss the event with C.R. is not evidence that she was unable or unwilling to address the issue. Third, there is no evidence that C.R. was at risk for abuse in the home because the earlier dependency proceedings were too remote in time. Fourth, C.R.'s absences from school did not render him a truant and his educational deficiencies did not justify his removal from the home.
These are arguments that are best addressed to the trial court. In essence, they call for us to draw inferences from the evidence favorable to him and to ignore or diminish the weight that could be given certain evidence. For example, C.R. asserts that his mother's failure to talk with him about the offense should be interpreted as merely the lack of knowing what to do, not an inability or unwillingness to address the issue; and the dependency proceedings, he contends, should be given no weight because the events took place seven years ago. We must, however, draw all inferences from the evidence favorable to the judgment, if reasonable, and leave determinations about the weight of the evidence to the trial court. (See, e.g., People v. Singh (2011) 198 Cal.App.4th 364, 368.) The arguments do not satisfy C.R.'s burden on appeal of showing there is no substantial evidence to support the court's findings or that the dispositional order constituted an abuse of discretion. (See In re Cole C., supra, 174 Cal.App.4th at p. 916.)
C.R.'s final argument is that the only reason the court removed him from his home was because of the lack of treatment in his community. He acknowledges that this argument depends upon the success of his earlier arguments that there is no substantial evidence to support the court's finding that remaining in his mother's home is contrary to his welfare. As discussed above, the earlier arguments fail; so this last argument fails as well. B. Failure to Provide Reunification Services
Defendant contends the court erred in failing to order reunification services for C.R.'s mother. The People did not respond to this argument. We agree with C.R.
Section 727.2, subdivision (a), provides: "If the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for placement pursuant to subdivision (a) of Section 727, the juvenile court shall order the probation department to ensure the provision of reunification services to facilitate the safe return of the minor to his or her home or the permanent placement of the minor, and to address the needs of the minor while in foster care . . . ." This is consistent with one of the primary objectives of the juvenile court law to provide for the "reunification of the minor with his or her family." (§ 202, subd. (a).)
There is no dispute that the court's order placing C.R. in the custody of the probation officer for placement in a foster home, group home, or relative home was made pursuant to subdivision (a) of section 727. Although subdivision (b) of section 727.2 provides certain exceptions to the requirement that reunification services be provided, none of them are applicable here. The court was therefore required to order reunification services for C.R.'s mother. It failed to do so. Indeed, although the Judicial Council form used by the court in making its order provides a checkbox to indicate that "[t]he probation officer will ensure provision of reunification services," the court left that box unchecked.
The exceptions are: (1) reunification services were previously terminated for the parent under certain juvenile dependency statutes; (2) the parent has been convicted of murder or voluntary manslaughter of a child of the parent, aiding and abetting, attempting, conspiring, or soliciting to commit a murder or manslaughter of a child of the parent, or felony assault that results in serious bodily injury to another child of the parent; or (3) the parental rights of the parent with respect to a sibling have been terminated involuntarily and it is not in the best interest of the minor to reunify with the parent. (§ 727.2, subd. (b).)
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C.R. argues that, because of this failure, the "trial court's decision in this case must be reversed." Although we agree the court erred in failing to order reunification services, reversal of an otherwise proper dispositional order is not necessary. We may "modify any judgment or order appealed from, and may direct the proper judgment or order to be entered . . . ." (Code Civ. Proc., § 43.) Accordingly, we will modify the court's dispositional order to provide for reunification services to C.R.'s mother pursuant to Welfare and Institutions Code section 727.2, subdivision (a).
IV. DISPOSITION
The dispositional order is modified as follows: The probation department shall ensure the provision of reunification services to C.R.'s mother to facilitate the safe return of C.R. to his home. The trial court is directed to enter a minute order reflecting the modification of the dispositional order and provide notice of the modified order to the probation department, C.R., the mother, and the People. The order is affirmed as modified. Following remand, the court shall conduct further proceedings as necessary and appropriate to implement the modified order.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
Codrington
J.