Opinion
A153513
08-30-2018
In re S.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1501133)
S.B. appeals an order denying his petition for reentry into juvenile court jurisdiction as a nonminor dependent. He contends the court abused its discretion in refusing to allow him to appear by telephone at the hearing on his petition. We shall affirm the order.
I. BACKGROUND
S.B. was declared a ward of the court (Welf. & Inst. Code, § 602) on November 14, 2013, after the he committed grand theft from the person of another (Pen. Code, § 487, subd. (c)) and battery (Pen. Code, § 242). He was 15 years old at the time. He was ordered into residential placement and over the next two and a half years was placed at five different facilities. He ran away from two of the facilities, was removed from one for testing positive for THC, and was removed from another for ongoing misconduct. In June 2015, S.B.'s felony was reduced to a misdemeanor, his placement order was set aside, and his probation was terminated unsuccessfully.
In October 2015, S.B. attacked and robbed his younger brother at school. On November 19, 2015, the juvenile court again adjudged S.B. a ward and ordered him placed in a residential facility after sustaining allegations that he committed grand theft from the person of another (Pen. Code, § 487, subd. (c)) and battery on school grounds (Pen. Code, §§ 242 & 243.2, subd. (a)(1)).
When S.B. turned 18 in December 2015, he became a nonminor dependent of the juvenile court. He entered into a Transitional Independent Living Plan (TILP), as part of which he agreed to complete high school, participate in therapy, and research job opportunities. He was again placed in a residential group facility.
In March 2016, S.B.'s probation officer reported to the juvenile court that S.B. had a high school diploma and was in the "Independent Living Program," and recommended that he move from the residential program to "Transitional Housing Program + Foster Care (THP+FC)." S.B. was present at a March 15, 2016 review hearing, at which the juvenile court found he had made "substantial" progress at alleviating the causes necessitating placement, and ordered him to transition from the residential program and into a THP+FC approved by the probation department.
A review hearing was set for May 5, 2016. Before the hearing, the probation department reported that S.B. was at a transitional housing program in Tulare, was taking part in a program that assisted youths in finding employment, had been accepted at a local college, and was maintaining contact with the probation department. S.B. attended the hearing, and his wardship was continued.
Another review hearing was set for October 19, 2016. Before the hearing, the probation department reported that S.B. had been removed from the transitional housing program in Tulare in August 2016, because he did not follow the rules of the program and the apartment complex where he lived. He returned to Contra Costa County, where he was accepted into another program. He had not yet found employment and had not signed up for school. S.B. attended the October hearing, and the court found S.B. had made satisfactory progress toward meeting his TILP goals, continued jurisdiction over him, and set a review hearing for April 6, 2017.
The probation department filed a notice of probation violation on January 9, 2017, after S.B. tested positive for cocaine. S.B. attended hearings on January 10, 2017 and January 31, 2017. The juvenile court found S.B. had made minimal progress in meeting his TILP goals, vacated the wardship and terminated probation unsuccessfully, and continued him as a nonminor dependent.
Before the April 2017 review hearing, the probation department reported that S.B. was attending a local community college part time and said he planned to find a job. He had been removed from his housing program and evicted because of reports of drugs, guns, and a loud party. S.B. had not met with his case worker regularly; he did not return phone calls or text messages; and when appointments were scheduled, he sometimes cancelled at the last minute, appeared hours late, or did not appear at all. He was living with his mother and brother. Minor did not attend the April 6, 2017 hearing, and the court expressed "concerns" over him and set a hearing to terminate jurisdiction (Welf. & Inst. Code, § 391) for May 8, 2017.
S.B. attended the May 8, 2017 hearing. Before the hearing, the probation department recommended that the nonminor dependency be terminated, with the court retaining general jurisdiction over him for purposes of reentry. At the hearing, the probation department reported S.B. was working 30 to 40 hours a week. The juvenile court continued his status as a nonminor dependent.
In August 2017, the probation department reported that S.B. was living with his mother rather than in an approved placement and he did not communicate with this probation officer. At an August 28, 2017 hearing, the court terminated the nonminor dependency, but retained jurisdiction for purposes of reentry into juvenile jurisdiction. S.B. did not appear at the hearing.
S.B. filed a request to return to juvenile court jurisdiction and foster care on January 10, 2018. In the request, he indicated he intended to take part in an employment program and work at least 80 hours a month. The court found S.B. had made a prima facie case and set a hearing for January 26.
Four days before the hearing, S.B.'s counsel sent an e-mail to a court clerk saying that S.B. would like to appear at the hearing by telephone. He reported that S.B. was "homeless and temporarily couch-surfing in Stockton," and he did not think he could afford, or otherwise obtain, transportation to Walnut Creek for the hearing. The court clerk conveyed the court's response that the judge was aware of her authority to allow S.B. to appear by telephone, but that, "[i]n light of [S.B.'s] history o[f] non-compliance, the fact that his inability to appear is unrelated to his participation in employment or education, and since he is staying in a neighboring county, the Court requires his presence." The court was willing to continue the hearing to a date on which S.B. could appear.
S.B was not present at the January 26, 2018 hearing on his request to return to juvenile court jurisdiction. His counsel explained that S.B. did not have a home or a car and was currently not employed, and argued it would be an undue hardship to require him to appear in person. Counsel said that according to Google Maps, a trip from the Stockton home of the friend with whom S.B. was staying to the courthouse on public transportation would take four hours each way and cost $64.50 roundtrip. The following colloquy took place: "[The court]: I know that Judge Hardie felt this minor had enough no-shows and enough problems, and looking back through his file she felt that—There's no bus to Walnut Creek from Stockton? [¶] [S.B.'s counsel]: From what I saw—I am basing this on Google Maps's recommended directions. This was the quote, unquote 'best route' that I found. [¶] [The court]: . . . I am so familiar with the public transportation to Stockton. You didn't mention train. Train is very easy from—It goes right from Martinez to Stockton. [¶] [S.B.'s counsel]: Okay. [¶] [The court]: I don't find good enough reason. I am following what Judge Hardie felt was appropriate. He should be here. I'm denying it until he makes an appearance and shows in good faith he wants to be here. He must be having something to be able to have a phone. [¶] [S.B.'s counsel]: He doesn't have a phone. So again, he can't even afford a phone, so I've been calling his friend who allows him to use his phone from time to time and will relay messages. [¶] [The court]: And he couldn't find a job to do anything to give him enough money to come here? I mean the file is replete with him not appearing, and he couldn't find a single job to get enough money to take the bus or train down here? [¶] I don't find that credible. Not at his age or this stage of his life. There [are] many things he could do for very little money to get him down here. Given his record, I agree with Judge Hardie. He should make an appearance for good faith." The court denied S.B.'s request to reenter foster care. S.B. appeals from this order.
Although the reference to Judge Hardie is not explained in the record, it appears from context that she may have been the judge referred to in the e-mail correspondence between S.B.'s attorney and the court clerk.
II. DISCUSSION
California law allows the juvenile court to continue jurisdiction over a dependent or ward of the court until he or she attains the age of 21 years. (In re Shannon M. (2013) 221 Cal.App.4th 282, 284-285; In re Aaron S. (2015) 235 Cal.App.4th 507, 516; Welf. & Inst. Code, § 303, subd. (a); see id., § 11400, subd. (v) [defining nonminor dependent]; see also Cal. Rules of Court, rule 5.900 et seq.) Where, as here, the juvenile court has dismissed dependency or delinquency jurisdiction but retained general jurisdiction for purposes of reentry, the nonminor may petition the juvenile court for a hearing to resume dependency jurisdiction. (§§ 303, subds. (b), (c) & 388, subd. (e); rule 5.906.) The court must set a hearing if it determines the nonminor has made a prima facie showing that he or she was under juvenile court jurisdiction on his or her eighteenth birthday; is not yet 21 years of age; wants assistance to maintain or secure an appropriate supervised placement or needs immediate placement; and intends to satisfy at least one of the eligibility criteria of section 11403, subdivision (b). (§ 388, subd. (e)(2)(A); rule 5.906(d)(1) & (3).)
All further statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
Section 11403, subdivision (b) provides financial assistance for nonminor dependents who are either completing secondary education or its equivalent; enrolled in a postsecondary or vocational education institution; participating in a program to promote or to remove barriers to employment; employed at least 80 hours a month; or incapable of doing any of those activities due to a medical condition.
Rule 5.900 provides that a nonminor who requests a reentry hearing "may appear, at his or her request, by telephone." (Rule 5.900(e)(1).) However, "[t]he court may require the nonminor dependent or the person requesting to return to juvenile court jurisdiction and foster care to appear personally on a showing of good cause and a showing that the personal appearance will not create an undue hardship for him or her." (Rule 5.900(e)(2).)
S.B. challenges the juvenile court's denial of his request to appear by telephone. In different contexts, courts have reviewed challenges to good cause determinations for substantial evidence. (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 633 [substantial evidence standard applied to good cause exception to Indian Child Welfare Act's placement preference]; In re Alexandria P. (2016) 1 Cal.App.5th 331, 353-354 [same]) and for abuse of discretion (People v. Sutton (2010) 48 Cal.4th 533, 546 [abuse of discretion standard applied to determination of good cause for delay of trial]; see also People v. Tate (2010) 49 Cal.4th 635, 663 [applying abuse of discretion standard to excusal of juror for undue personal hardship].) The parties have not drawn our attention to any cases discussing the standard of review for the trial court's decision to require a nonminor's personal appearance, and our own research has disclosed none. However, the practical differences between the review for abuse of discretion and for substantial evidence are minor. (In re G.B. (2014) 227 Cal.App.4th 1147, 1166, fn. 7; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see In re Alexandria P., supra, 1 Cal.App.5th at p. 353, fn. 17.)
Under either standard of review, we would uphold the juvenile court's order. The court was aware of rule 5.900 and of its authority to allow S.B. to appear by telephone. S.B. had exhibited a decreasing level of compliance with his programs. In the spring of 2016, he was making "substantial" progress, taking part in an employment program, applying to college, and maintaining contact with the probation department. By October 2016, he was making only "satisfactory" progress; he had been removed from his transitional housing program for noncompliance with the rules; and after his return to Contra Costa County had not found employment or signed up for school. In January 2017, after S.B. tested positive for cocaine, the juvenile court found he had made only minimal progress in meeting his TILP goals when it vacated the wardship, terminated his probation unsuccessfully, and continued him as a nonminor dependent.
After that point, S.B.'s attendance at hearings became sporadic. By April 2017, he had been removed from another housing program and was failing to maintain regular contact with his case worker. He failed to attend an April 6, 2017 hearing. After the probation department recommended that his nonminor dependency be terminated, S.B. appeared at a hearing in May 2017, but failed to appear at the August hearing at which his dependency was terminated. The juvenile court could reasonably insist on his attendance at the reentry hearing to determine whether he was serious about abiding by the terms of his extended foster care.
Nor was it unreasonable for the court to conclude that attending the hearing in person would not cause S.B. undue hardship. The hearing would not interfere with any work or, apparently, school obligations. Although travel on public transportation would entail an expense, the court expressed its willingness to continue the hearing to a new date that was convenient for S.B. There was no indication S.B. had made any effort to obtain money for transit or secure alternative transportation to the hearing. Under these circumstances, the juvenile court's ruling was not improper.
III. DISPOSITION
The January 26, 2018 order is affirmed.
/s/_________
Lee, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.