Opinion
D070216
03-22-2017
In re MICHAEL J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL J., Defendant and Appellant.
Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, Christine Y. Friedman, and Britton Lacy, Deputy Attorneys 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J231394) APPEAL from an order of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed. Johanna S. Schiavoni, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Arlene A. Sevidal, Christine Y. Friedman, and Britton Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
Michael J. appeals from a juvenile court disposition order committing him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ). He contends the court abused its discretion in committing him to the DJJ and determining he did not have exceptional educational needs, and seeks remand for further evaluation of his educational needs. We reject these contentions and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Michael has a long history of delinquency, beginning when he was 13 years old. In June 2012, Michael admitted to felony assault with a deadly weapon and to misdemeanor unlawful entry, and the court declared him a ward of the court and placed him on home supervision with probation. In October 2012, Michael violated probation by failing to attend school. The juvenile court committed him to the Short Term Offender Program (STOP), stayed the commitment pending a review hearing, and released him on home supervision. After Michael violated conditions of his probation a second time, the court lifted the stay on the STOP commitment.
Michael had a record of poor school attendance and low grades extending back to January 2012, following the death of his uncle. In the fall of 2012, Michael had attended only 31 of 103 class periods. By December 2012, Michael had not attended school for over a month and was no longer enrolled. Thereafter, he continued to have gaps in school attendance and enrollment.
Thereafter, Michael violated probation on numerous occasions and admitted to additional charges. In addition to the dispositions noted above, the juvenile court placed Michael on home supervision another time, twice more committed him to STOP, committed him to the Breaking Cycles program four times, and detained him in juvenile hall twice. Michael was also sent to the Youth Day Center in connection with one of his Breaking Cycles program commitments after he "failed" the program by engaging in 79 rule violations, several violent incidents, three instances of inappropriate behavior, and one assault.
Michael's delinquency and probation violations appeared to be strongly tied to his association with local gangs. For example, during his initial felony assault he allegedly referred to "Brims" during the incident, admitted to associating with the gang "5/9 Brims," exhibited "5/9 Brims" tagging on multiple occasions while in juvenile hall and assaulted a member of a rival gang while in custody. Many of his subsequent detentions occurred after he was observed in the presence of known gang members, or with gang colors. Another of his offenses, theft from a victim's person, involved a group of participants, the majority of whom were known gang members.
In December 2015, Michael admitted to taking personal property from a victim using force and fear and the juvenile court committed him to Camp Barrett. While in juvenile hall awaiting transfer to Camp Barrett in January 2016, Michael and three other minors assaulted a teacher. Another teacher stated she had overheard a student say the minor who initiated the assault had previously discussed the possibility of attacking a teacher for the purpose of obtaining a YOU commitment.
In connection with his disposition, Michael had sent a letter to the court indicating he should be sentenced to the DJJ for a year because camp or the Youthful Offender Unit (YOU) program was "not going to work."
Later that month, Michael's probation officer contacted the supervisor of YOU and a DJJ screening officer to assess Michael's placement options. The DJJ officer said Michael would qualify for educational and counseling services and would "receive a battery of tests and assessments to determine his educational program, medical needs," and need for other rehabilitative services. Michael's probation officer recommended a DJJ commitment for Michael in order to keep him away from his peer group, reduce negative influences, and provide a multifaceted intervention consisting of intensive gang prevention programming, cognitive, behavioral and substance abuse counseling, education, and independent living skills.
In late January 2016, Michael admitted to the felony assault charge. A few weeks later, the probation department submitted a memo reporting Michael had been involved in three violent incidents and an additional assault since the last report. The three incidents all involved group fights, which appeared to be racially or gang motivated. The assault occurred when Michael attacked a seated student in a classroom and punched him multiple times. The probation department submitted a supplemental memo to the juvenile court, describing improvement in Michael's behavior from mid-February through mid-March 2016, including his designation as an in-custody worker and as " 'Top 5' " within his unit.
In his disposition memorandum, Michael requested placement in the YOU program rather than commitment to the DJJ because he potentially had special educational needs and believed the DJJ would not offer appropriate services. He also submitted a report written by Robert Kelin, Psy.D., a psychologist who had evaluated him in 2012 and 2016. In 2016, Dr. Kelin asked Michael about his letter to the juvenile court requesting placement in the DJJ. Michael explained that he no longer felt that way and believed he could be successful in the YOU program.
Dr. Kelin also reported that Michael often felt depressed and angry, but was currently on medication for his anger and believed the medication was helping. Michael informed Dr. Kelin that he addressed his anger by exercising or reading a book when he was in custody, and by using marijuana when he was in the community. He denied having any learning disabilities or ever being in special education and said he could achieve good grades in school if he attended and made a good effort. Michael explained he performed well academically when in custody and had made the honor roll. Dr. Kelin's testing revealed that Michael had a reading recognition score at the 6.5 grade level and an arithmetic score at the 3.8 grade level. On one test, Michael scored in the moderately mentally retarded range, with an approximate IQ of 50. However, because Dr. Kelin's prior testing of Michael in 2012 had indicated an approximate IQ of 80, placing him in the low average range, Dr. Kelin determined the current test was "an underestimate of his intellectual potential, likely due to his working quickly."
Michael's academic records from 2014-2015 support his assessment, revealing predominately "C" grades, with improvement over time.
In the fourth quarter of eighth grade, Michael received all "A" or "A-" grades while in custody.
Dr. Kelin concluded, based on the results of the tests, that Michael had "at least borderline intellectual skills." He further noted Michael's tendency to react violently, his continuous poor judgment and his recurring depressive disorder. Dr. Kelin recommended Michael be placed in a "secure facility that will help him control his behavior," participate in therapy and anger management classes, and continue taking his current medication. He also stated Michael might benefit from substance abuse treatment and eventually, when he learned to control his anger, from supervised group activities. In addition, he recommended Michael be provided with vocational training.
The juvenile court held a contested disposition hearing in March 2016. The court acknowledged reviewing the disposition memorandum and Michael's psychological evaluation and then heard arguments of counsel. Michael's counsel emphasized Michael's mental health and IQ test results and argued that the local regional center could potentially provide educational and other services if Michael were placed in the YOU program. The People's counsel informed the court of Michael's recent participation in another group fight.
The juvenile court adopted the recommendation of the probation department and ordered Michael committed to the DJJ. In making its ruling, the court observed that Michael had participated in a number of excellent local programs but none of them had worked, and he continued to engage in a pattern of criminal behavior, culminating in his attack on a teacher. The court concluded Michael desperately needed help and guidance and the support of "some very, very rigorous programming." Additionally, the court referenced its knowledge of the DJJ and its improvements over the past several years. The court reasoned that this disposition was its final opportunity to place Michael (who was then 17 years old) before he became an adult, after which any continuing offenses would lead to jail or prison, rather than to the DJJ or YOU. The court characterized commitment to the DJJ as a "last-ditch effort" for rehabilitation, to "get [Michael] back on track and focused on schooling, education, and good choices." In its disposition order, the court found Michael's mental and physical conditions and qualifications rendered it probable he would benefit from the programs provided by the DJJ and that Michael was "not an individual with exceptional needs."
DISCUSSION
I. Michael's Commitment to the DJJ
Michael contends the juvenile court erred in deciding he would benefit from a DJJ commitment without properly considering his educational and mental health needs and without adequate consideration of less restrictive alternatives.
We review a juvenile court's commitment decision for abuse of discretion. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396 (Angela M.).) In doing so, we will affirm if there is substantial evidence to support the juvenile court's findings, indulging all reasonable inferences in support of its decision. (In re Calvin S. (2016) 5 Cal.App.5th 522, 527-528.)
To determine the proper disposition for a minor, the juvenile court must consider public safety, victim redress, and the minor's best interests. (Welf. & Inst. Code, § 202, subd. (d).) The disposition analysis also includes consideration of the minor's "educational, physical, mental health, and developmental-services needs." (Cal. Rules of Court, rule 5.651(b)(2)(D).) The court must also take into account: (1) the minor's age, (2) the circumstances and gravity of the minor's offense, and (3) any prior history of delinquency. (Welf. & Inst. Code, § 725.5.) In addition, the disposition may incorporate punishment, where consistent with the minor's rehabilitation and not imposed for purposes of retribution, including commitment to the Division of Juvenile Facilities, Department of Corrections and Rehabilitation. (Welf. & Inst. Code, § 202, subds. (b) & (e).) However, before a juvenile ward may be committed to the DJJ, the court must be fully satisfied that the mental and physical qualifications of the juvenile are such as to render it probable that he or she will be benefited by the commitment. (Welf. & Inst. Code, § 734.)
Although a minor's educational needs are an important consideration, when a minor exhibits complex problems and violent behavior the minor's educational needs do "not trump other factors the court [must] weigh in making its commitment decision." (In re Joseph H. (2015) 237 Cal.App.4th 517, 544 (Joseph H.).)
All further rule references are to the California Rules of Court.
In 2005, the California Youth Authority (CYA) was redesignated as the Division of Juvenile Facilities, which is within the Department of Corrections and Rehabilitation under the Juvenile Justice division. (Welf. & Inst. Code, § 1710, subd. (a); Pen. Code, § 6001; Gov. Code, § 12838, subd. (a).) Rule 5.805, refers to juvenile commitment to the Division of Juvenile Justice. The terms Division of Juvenile Justice and Division of Juvenile Facilities are frequently used interchangeably. (See, e.g., In re Jose T. (2010) 191 Cal.App.4th 1142, 1145, fn. 1; In re J. L. (2008) 168 Cal.App.4th 43, 47, fn. 1.) Because the record below refers to the authority to which Michael was committed as the DJJ, we shall do likewise.
Although juvenile law contemplates a progressively more restrictive placement scheme, beginning with home placement under supervision and culminating in commitment to the DJJ, the court may consider commitment without prior recourse to other less restrictive placements. (In re Nicole H. (2016) 244 Cal.App.4th 1150, 1159 (Nicole H.).) The court's commitment decision will be upheld when the evidence demonstrates a probable benefit to the minor from the commitment and the ineffectiveness or inappropriateness of less restrictive alternatives. (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.) The juvenile court is not required to expressly state on the record its reasons for rejecting less restrictive placements, but the record must contain some evidence that the court appropriately considered and rejected reasonable alternative placements. (Nicole H., at p. 1159.)
Here, the record shows that the juvenile court considered Michael's educational and mental health needs prior to committing him to the DJJ. The court reviewed the disposition memorandum and Michael's psychological evaluation and heard his counsel's arguments regarding his educational and psychological requirements. Additionally, one of the court's express reasons for ordering the DJJ commitment was its intent to have Michael focus on his education before he aged out of the system.
The evidence establishes that Michael had an escalating pattern of violent criminal behavior and needed a secure environment and intensive therapeutic and educational services to have any chance of turning his life around. The DJJ could provide Michael with educational and counseling services and would perform additional assessments to ascertain his specific educational and other rehabilitative needs. Thus, the court could reasonably find that Michael would likely benefit from the DJJ commitment.
The DJJ is required to assess a minor's educational needs upon commitment and at least annually thereafter and provide an education program "responsive to the needs of all wards, including those who are educationally handicapped." (Welf. & Inst. Code, § 1120, subd. (b).) In the absence of evidence to the contrary, we must presume Michael will receive appropriate assessment and education while in custody. (Evid. Code, § 664 [the law presumes that an official duty has been regularly performed].)
Moreover, the record shows that the juvenile court considered other placement options. The probation report discussed the probation officer's screening of Michael's potential placement in the YOU program with the program supervisor. Michael's counsel addressed the potential benefits of the YOU program in the disposition memorandum and at the hearing, and the court specifically referred to the YOU program in making its disposition ruling.
In addition, the record contains evidence indicating placement in the YOU program at the local juvenile hall would not be appropriate for Michael. Michael assaulted a teacher at juvenile hall and his stay there was permeated with violence, including multiple group fights and an additional assault. Similar assaults occurred during Michael's placement in the local Breaking Cycles program. At one point, Michael himself acknowledged that he would not succeed if placed in the YOU program due to his association with other individuals in the program. There was also evidence that the assault on a teacher was motivated by a desire to obtain placement in the YOU program, at least on the part of one of the participating minors. On this record, Michael has not shown that the juvenile court abused its discretion in ordering his commitment to the DJJ.
II. Assessment of Michael's Educational Needs
Michael contends the juvenile court erred in determining he did not have " 'exceptional needs' " and that remand is required to allow him to be assessed for an individualized educational plan (IEP). The People maintain Michael forfeited his claim regarding his need for special educational services by not raising it at the disposition hearing where it could have been addressed. Generally, complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. DE Soto (1997) 54 Cal.App.4th 1, 8-9 [failure to raise specific objections at the time of sentencing deprives the trial court of a meaningful opportunity to correct any sentencing errors and waives his right to claim any of these sentencing errors].) The forfeiture doctrine has been applied in juvenile delinquency and dependency cases. (See In re Travis W. (2003) 107 Cal.App.4th 368, 379 [failure to object to defects in the probation officer's report]; In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [failure to object to absence of statutorily-required assessment of a prospective guardian]; In re Josue S. (1999) 72 Cal.App.4th 168, 172-173 [failure to object to unreasonable probation conditions].)
An IEP "is a written statement of a child's present level of educational performance, including, among other information, how [his or her] disability affects the child's participation in appropriate activities, a statement of measurable annual goals, benchmarks, and short-term objectives, a statement of the special education and related services the child will receive, and a statement of the extent to which the child will not participate in regular education programs." (Angela M., supra, 111 Cal.App.4th at p. 1398, fn. 2.)
We agree that if Michael's counsel believed the juvenile court was obligated to obtain additional educational assessments of Michael, she should have raised the issue below. However, even assuming Michael did not forfeit his claim, we conclude the claim fails on the merits.
Under California's Education Code and the federal Individuals with Disabilities Education Act, a minor with exceptional needs is entitled to free special education services. (Ed. Code, § 56000 et seq.; 20 U.S.C. § 1400 et seq.) A minor qualifies as having exceptional needs when identified by an IEP team as having a disability meeting certain criteria, and his or her degree of impairment is demonstrated to require special education. (Ed. Code, § 56026; Cal. Code Regs., tit. 5, § 3030; 20 U.S.C. § 1401(3)(A).) A nondisabled minor is not considered to have exceptional needs if his or her "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." (Ed. Code, § 56026, subd. (e).)
As noted above, the juvenile court is required to assess a minor's educational needs at disposition. (Rule 5.651(b)(2)(A).) This requirement includes consideration of the minor's need for special education and related services. (Ibid.) The juvenile court must also make findings and orders addressing the minor's need for educational services, evaluations, or assessments. (Rule 5.651(b)(2)(D)(E).)
We review a juvenile court's findings for substantial evidence. (Nicole H., supra, 244 Cal.App.4th at p. 1154.) Substantial evidence is evidence that is "reasonable, credible, and of solid value," sufficient to allow a reasonable trier of fact to have made the requisite findings. (Joseph H., supra, 237 Cal.App.4th at p. 538.)
Michael relies on Angela M., a case in which a minor committed to the CYA challenged the juvenile court's failure to make findings regarding her educational needs at disposition. (Angela M., supra, 111 Cal.App.4th at p. 1394.) Angela's court-appointed psychologist had described her as experiencing symptoms of bipolar disorder and attention deficit hyperactivity disorder and opined that " 'she must undergo' " an IEP assessment. (Id. at pp. 1395, 1398-1399.) Although the court was clearly aware of the psychologist's opinion, it did not mention the issue of Angela's educational needs when committing her to the CYA. (Id. at pp. 1395, fn. 1, 1399.) Consequently, the Court of Appeal remanded with directions to the juvenile court "to determine whether an evaluation of Angela's special educational needs should be conducted." (Id. at p. 1399.)
Unlike the juvenile court in Angela M., it is clear in this case that the juvenile court considered Michael's educational needs, and there was substantial evidence to support the court's determination that he did not have exceptional needs. Michael had never been assessed as requiring special education. His records revealed that his difficulties in school arose in 2012, after his uncle died and he began missing significant amounts of school. Further, Michael's school attendance was irregular at best during the majority of time he was not in custody from 2012 through late 2015, but he obtained decent grades on average while in custody and admitted that he could succeed in school when he tried.
In requesting remand, Michael relies heavily on his recent IQ test results and his low academic assessment scores (6.5 grade level in reading, 3.8 in math). Michael's academic test results can reasonably be attributed to his extensive truancy, beginning in the sixth grade. Regarding the IQ test, Dr. Kelin did not believe the results accurately reflected Michael's abilities because his prior IQ score was considerably higher. Instead, he attributed Michael's lower score to his "working quickly." Dr. Kelin concluded that Michael had "at least borderline intellectual skills" and, unlike the psychologist in the Angela M. case, did not specifically recommend an IEP assessment.
We conclude substantial evidence supports the juvenile court's findings concerning Michael's educational needs and no remand for further findings is required.
DISPOSITION
The order is affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. HALLER, J.