Opinion
A151999
08-15-2018
In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-01014)
D.M. (Minor) was a dependent of the court under Welfare and Institutions Code section 300 when the district attorney filed a wardship petition under section 602 alleging that Minor had committed vandalism and obstructed a police officer. Minor appeals from the juvenile court's subsequent determination under section 241.1 that he be treated as a ward under section 602, rather than a dependent under section 300. He argues that the court's failure to order a section 241.1 report and hold a section 241.1 hearing before holding the section 602 jurisdiction hearing is prejudicial error, and that the court's decision to treat him as a ward is an abuse of discretion because the court's findings are not supported by substantial evidence. We shall affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
We draw our summaries of Minor's dependency case and the offense that led to the section 602 petition from the section 241.1 report. A. Minor's Section 300 Case
In October 2016, when Minor was 16 years old, he "self-reported" being homeless and was put in an emergency placement. A section 300 petition was filed on his behalf, and jurisdiction was granted in November 2016, with Minor's mother (Mother) submitting on the allegations that she was unwilling and unable to provide adequate care and support for him, in that she refused to accept him into her home after he was taken to the emergency placement. Mother, who lived with her husband and five of Minor's half siblings, reported that she was not safe with Minor and could not prevent his out-of-control behaviors. She reported Minor would beat up his younger siblings, and that in April 2016 Minor and three others attacked her husband with a gun and beat him severely. She said she had tried to help Minor access mental health services, but he refused and ran away from home.
Minor's father (Father), who did not participate in the dependency proceedings, had been Minor's sole caregiver. He left Minor in the care of a paternal aunt, who then became homeless. The section 241.1 report states that Father's whereabouts were unknown, and he had not responded to attempts to reach him at his last known address.
Minor was placed in a foster home and then group homes. In the three months between the February 9, 2017 disposition of his dependency case and May 8, when he was detained on the offenses that resulted in the filing of the section 602 petition, Minor was absent without leave from his placements almost 30 times, was taken into custody under section 5150 three times, and was arrested three times. B. Underlying Offense
Section 5150 provides in part, "When a person, as a result of mental health disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer . . . may, upon probable cause, take or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation and crisis intervention . . . ." (§ 5150, subd. (a).) Minor's arrests were for vandalism (Pen. Code, § 594, subd. (b)(2)(A)), receiving stolen property (Pen. Code, § 496, subd. (a)), and fighting in a public place (Pen. Code, § 415, subd. (1).)
On May 8, 2017, Minor was at his section 300 group home placement discussing his housing plan with three adult female employees of Contra Costa County Children and Family Services (the Department). Minor verbally expressed his opposition to the plan, and then, without warning, grabbed a wooden table and forcibly flipped it over within inches of the employees. Minor then threw wooden chairs and a portable CD player. He told one of the employees that she needed to be slapped, while holding a clock and motioning as though he was going to throw it at her upper torso or face. He threw the clock several feet into the hallway, with enough force to cause permanent damage to the tile flooring. When a police officer arrived, Minor fled, but he did not get far and was arrested. C. Juvenile Court Proceedings
On May 10, 2017, the Contra Costa County District Attorney filed a wardship petition under section 602 alleging two misdemeanors: vandalism (Pen. Code, § 594, subd. (b)(2)(A), count 1) and resisting, delaying or obstructing a police officer (Pen. Code, § 148, subd. (a)(1), count 2.)
At the detention hearing on May 11, 2017, Minor appeared in custody, represented by counsel. Minor submitted on the issue of detention and denied the allegations in the petition. The court ordered Minor detained in juvenile hall, authorized interviews for Minor with two group homes that Minor's social worker had identified, and scheduled a contested jurisdiction hearing for May 22.
At the jurisdiction hearing, Minor pleaded no contest to the vandalism charge (count 1) in exchange for dismissal of count 2. The court denied Minor's request to be released to a new dependency placement his social worker had found for him. The judge stated she had reviewed material prepared by the probation department, and needed to have information about the placement before agreeing to a release. The court found Minor "dangerous [and] not suitable for [section] 300 placement at this time," and ordered Minor to remain at juvenile hall. The court ordered the probation department "to conference the case with social services [and] provide [a] joint statement" under section 241.1, and set a section 241.1 hearing for June 6, 2017 to determine whether Minor should remain a dependent under section 300 or be declared a ward under section 602.
The section 241.1 report noted at least six prior arrests, starting when Minor was just 12 years old. The arrests include one for robbery (Pen. Code, § 211), and one for fighting (Pen. Code, § 415, subd. (1)), but none of them led to charges being filed. Minor was doing poorly at school: although he was almost 17 by the time the section 241.1 report was prepared, he was a freshman with a GPA of 1.75, and not on track to graduate. Minor reported that he enjoyed smoking marijuana, which he said he had done almost every day since age 11, and liked to fight. In his spare time, he said he enjoyed hanging out with his friends, smoking marijuana, and "getting girls and taking them in the house to have sex." Minor admitted having an anger management problem, and said that when he gets angry he slams doors, swears, and breaks things. Mother remained unable or unwilling to accept Minor into her home because of his behavior. After Minor's actions at his group home on May 8, 2017, the Department employees who were present expressed fear of being alone with Minor in the future because of his violent and unpredictable behavior.
Minor was reported as having lost privileges while at juvenile hall for "being argumentative, not following directions, writing on a desk, refusing to remove soiled bed sheets, stalling, and being defiant and aggressive." In addition, Minor had two incident reports, one arising from a verbal altercation with another resident and one for "being unresponsive to staff after being directed to remove toilet paper covering his window." Minor was classified as having a high risk level for reoffense.
At the section 241.1 hearing, Minor's social worker reported that there had been an incident at juvenile hall the night before, in which Minor "attempted to . . . pass the staff area and access a control panel," and was then restrained.
The section 241.1 report recommended that the Department remain the lead agency and the court impose non-wardship probation "for collaborative supervision and support." The report noted "significant mental health concerns and possible need for further assessment." According to the report, Minor said he was "5150'd" in February 2017 after being kicked out of school for threatening to jump off the school roof. Although Minor denied having mental health issues, the Department reported he was diagnosed with a mood disorder and prescribed medicine, but failed to follow the physician's orders.
At the June 6, 2017 section 241.1 hearing, the juvenile court heard argument from the district attorney, Minor's section 300 counsel and his separate section 602 counsel, Mother's section 300 counsel, and counsel for the Department.
The juvenile court then ordered a mental health assessment to be completed as soon as possible, but otherwise declined to adopt the recommendations in the section 241.1 report, stating, "Well, I think the Department has failed as the lead agency, completely—not necessarily the Department's fault, but I can't believe you are not asking him to go as a delinquent. [¶] He is out of control. He is dangerous to everybody, that I can see. And, as of last night, he's trying to get to the control panel at Juvenile Hall and has to be restrained. [¶] I mean, everyone wishes the best, but there are other victims—there are other people that you have to protect out in society, and this minor has no concept of protecting anybody else. [¶] I think he's dangerous. I think he's out of control, and I think he must remain a 602. And I don't know what [on] earth you all were thinking. [¶] So I'm denying the request on the 241.1. [¶] I think you're all quite irresponsible to society and to this minor, and that we need strong—a strong hold on that young man if we're ever going to change him. [¶] And I agree there has to be a mental health assessment. I think that's key, but he will be a 602." Addressing Minor, the court said, "[D.], you can't—your behavior is appalling—just appalling. I don't know whether you can help it or not. [¶] Hopefully, you will be able to, and—with the right, perhaps, consequences for your terrible behavior might teach you some lessons—all I can see is everyone has turned their back anytime you do anything bad, and everybody's said, 'Poor [D.], you can't'—well, I think you've had a rough life. I do agree. But there are a lot of people out there that I would be fearful for until you get some changes in your behavior." Minor was ordered detained at juvenile hall pending disposition, with the court explaining, "Now, [D.], a lot's going to happen in the next two weeks. I want you to understand that I will consider very strongly how you behave at Juvenile Hall, to take into consideration whatever recommendations I get, so I advise you to show your best behavior."
At the June 19, 2017 disposition hearing, Minor was declared a ward of the court under section 602 with no termination date. He was placed in the custody of the probation department for placement in a court-approved home or institution. Minor timely appealed.
DISCUSSION
A. Applicable Law
Our colleagues in Division Four summarized the relevant statutory framework and standard of review in In re M.V. (2014) 225 Cal.App.4th 1495 (M.V.): "A child who has been abused or neglected falls within the juvenile court's protective jurisdiction under section 300 as a 'dependent' child of the court. In contrast, a juvenile court may take jurisdiction over a minor as a 'ward' of the court under section 602 when the child engages in criminal behavior. [Citations.] As a general rule, a child who qualifies as both a dependent and a ward of the juvenile court cannot be both. [Citations.] Instead, section 241.1 sets forth the procedure that the juvenile court must follow when faced with a case in which it may have dual bases for jurisdiction over a minor." (Id. at pp. 1505-1506, fn. omitted.)
"Pursuant to section 241.1, whenever it appears that a minor may fit the criteria for both dependency and wardship, 'the county probation department and the child welfare services department shall . . . initially determine which status will serve the best interests of the minor and the protection of society.' The assessment of a minor under section 241.1 is statutorily required to include, at a minimum, consideration of the following eight factors: (1) the nature of the referral; (2) the age of the minor; (3) the prior record of the minor's parents for child abuse; (4) the prior record of the minor for out-of-control or delinquent behavior; (5) the parents' cooperation with the minor's school; (6) the minor's functioning at school; (7) the nature of the minor's home environment; and (8) the records of other agencies that have been involved with the minor and his or her family. (§ 241.1, subd. (b)(2).) This statutory mandate has been augmented by rule 5.512 which requires the joint assessment under section 241.1 to be memorialized in a written report. Further—in addition to the eight factors set forth in section 241.1. that must be considered in any such joint assessment—rule 5.512 demands evaluation of four additional items: (1) the history of any physical, sexual, or emotional abuse of the child; (2) any services or community agencies available to assist the child and his or her family; (3) a statement by any counsel currently representing the minor; and (4) a statement by any court appointed special advocate (CASA) currently appointed for the child. (Rule 5.512(d).) Once the recommendations of both departments are presented to the juvenile court, it remains for the court to 'determine which status is appropriate for the minor.' (§ 241.1 subd. (a); see rule 5.512(g) [court must make a determination regarding the appropriate status of the minor and must state its reasons on the record or in a written order].)" (M.V., supra, 225 Cal.App.4th at p. 1506.)
References to rules are to the California Rules of Court.
Section 241.1, subdivision (a) states that the joint recommendation regarding status "shall be presented to the juvenile court with the petition that is filed on behalf of the minor," which has been construed to mean that the section 241.1 report should be filed with the petition that creates the possibility of dual jurisdiction. (M.V., supra, 225 Cal.App.4th at p. 1507.) "Rule 5.512 similarly states that, '[w]henever possible, the determination of status must be made before any petition concerning the child is filed' (rule 5.512(a)(2)) and that the 'assessment must be completed as soon as possible after the child comes to the attention of either department' (rule 5.512(a)(1)). In addition, rule 5.512 is quite specific regarding the timing for the actual assessment report: 'If the child is detained, the hearing on the joint assessment report must occur as soon as possible after or concurrent with the detention hearing, but no later than 15 court days after the order of detention and before the jurisdictional hearing. . . .' (Rule 5.512(e).) Notice of the hearing—including a copy of the joint assessment report—must be provided to various interested parties at least five calendar days before the hearing. (Rule 5.512(f).) (M.V. at p. 1507, fn. omitted.)
"We review the juvenile court's determination under section 241.1 for abuse of discretion. [Citation.] 'To show abuse of discretion, the appellant must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.' [Citation.] Throughout our analysis, we will not lightly substitute our decision for that rendered by the juvenile court. Rather, we must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings where there is substantial evidence to support them. [Citation.]" (M.V., supra, 225 Cal.App.4th at pp. 1506-1507.) B. Timeliness of Section 241 .1 Report and Hearing
Minor argues that the juvenile court erred by ordering the section 241.1 report at the jurisdictional hearing, by holding the section 241.1 hearing more than 15 court days after the order of detention and after the jurisdictional hearing, and by failing to assure that the report was provided to interested parties five calendar days in advance of the hearing. Minor concedes that he did not raise these issues in the juvenile court, but argues that he has not forfeited them, claiming that any objection would have been futile because the court had predetermined his status as a ward under section 602, and that any error in the timing of the section 241.1 report is a due process violation and cannot be waived.
The section 241.1 hearing was held 17 court days after the detention order was issued without objection; the section 241.1 report was dated and apparently provided to the parties four calendar days in advance of the hearing without objection.
Minor argues that the juvenile court's predetermination of his status under section 241.1 is reflected in the court's finding at the jurisdiction hearing that Minor was "dangerous" and "not suitable for [section] 300 placement at this time," and in the court's "echo[ing] this sentiment again" at the section 241.1 hearing, "saying that [Minor] was dangerous and that he should remain in juvenile hall," and "provid[ing] no further analysis under section 241.1." We disagree with Minor's characterization of the record. Far from having predetermined Minor's status at the jurisdiction hearing, at that hearing, the court ordered a section 241.1 report to be prepared. The court's finding that Minor was not suitable for section 300 placement at the time of the jurisdiction hearing was a response to Minor's request that he be released from juvenile hall pending the next hearing. It was not a statement about minor's ultimate status; instead, it reflected the court's understanding that Minor was dangerous and the inability of Minor's counsel to provide the court with any details about the proposed section 300 placement. And contrary to Minor's assertion, the juvenile court provided analysis and reasons to support its determination that Minor be treated as a ward under section 602. Further, the court did not decide that Minor should remain in juvenile hall indefinitely; the court was clear that Minor was to remain in juvenile hall pending disposition and that Minor's behavior in the period between the section 241.1 and disposition hearings would have a bearing on his placement.
Nor are we persuaded by Minor's cursory argument that errors in the timing of the section 241.1 report and hearing constituted a violation of due process. Where "a section 241.1 report was prepared and available prior to the court's noticed 241.1 hearing and [addressed] the principal question at issue [and] the report was considered by the juvenile court—along with argument by the parties regarding the report's recommendation—before the court announced its 241.1 decision . . . any lateness in the report's preparation [is not] a defect that fundamentally undermined the statutory scheme such that [Minor] was unable to avail [himself] of its protections." (M.V., supra, 225 Cal.App.4th at p. 1510.)
In sum, we conclude that Minor has forfeited claims of error as to the timeliness of the section 241.1 report and hearing. C. Support for Findings
In arguing that the juvenile court abused its discretion in making its section 241.1 determination, Minor's primary contention is that the court's finding that Minor was "dangerous" is not supported by substantial evidence. The argument lacks merit. In the incident that led to the filing of the section 602 petition, Minor "directed a specific threat to one of the [Department] employees that she needed to be slapped as he held an electronic clock in his hand and motioned as though he was going to throw it at the victim's upper torso or face." The employees told the police "they were scared the minor was going to cause physical harm to his social worker, where the focus of his anger was." They "expressed fear of being alone with the minor in the future because of his violent and unpredictable behavior." Mother reported that Minor beat up his younger siblings, and attacked her husband with a gun, beating him badly. Minor was "defiant and aggressive" at juvenile hall and told the probation department that he likes to fight. Minor admitted having problems with anger management, and said that when he is angry he breaks things. All of this constitutes substantial evidence in the record to support the juvenile court's finding.
In addition, Minor argues that the juvenile court erred by failing to consider the factors enumerated in section 241.1 and rule 5.512. Yet Minor concedes that the section 241.1 report analyzed the required factors, and the juvenile court judge stated on the record that she had read the report. We will not assume that the juvenile court failed to consider the information presented to it. Furthermore, Minor's contention that the court ignored his "traumatic history and extensive mental health issues," is belied by the record: the court acknowledged at the section 241.1 hearing that Minor had a hard life and ordered a mental health assessment. Minor cites no authority to suggest that the juvenile court is required to recite on the record every factor listed in section 241.1 and rule 5.512 or to explain how it weighed each of the factors in reaching its decision.
In short, Minor fails to persuade us that the juvenile court abused its discretion in determining that he be treated as a ward of the court under section 602.
DISPOSITION
The judgment is affirmed.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.