Opinion
E053018 Super.Ct.No. J229455
09-28-2011
In re S.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. S.C., Defendant and Appellant.
John L. Dodd, 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, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Larry W. Allen, Judge. Affirmed with directions.
John L. Dodd, 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, Pamela Ratner Sobeck and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
S.C. (minor) was adjudicated a ward of the juvenile court upon findings that she had committed second degree commercial burglary (Pen. Code, § 459), resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), and making criminal threats (Pen. Code, § 422). She was placed in the custody of her mother, on specified terms of probation.
Minor then violated her probation. A subsequent Welfare and Institutions Code section 602 petition was filed. Minor admitted one of the allegations, and the juvenile court dismissed the other one. The juvenile court continued minor as a ward of the court, and placed her in the custody of the probation department to await placement in a suitable foster care facility.
Minor now complains that the juvenile court failed to make findings about her educational needs, pursuant to California Rules of Court, rule 5.651 (rule 5.651) and state and federal law. Her contention has merit. We otherwise affirm the dispositional orders, but remand with directions to the juvenile court for proper findings and orders with respect to minor's educational needs, in compliance with rule 5.651(b)(2).
PROCEDURAL BACKGROUND
On October 15, 2009, the San Bernardino County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, charging minor with second degree commercial burglary (Pen. Code, § 459, count 1) and misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1), count 2). Minor was then arrested on October 20, 2009, for threatening to kill her stepfather, mother, and sister, while holding two butcher knives. The petition was amended to add three counts of making criminal threats. (Pen. Code, § 422, counts 3-5.)
On November 9, 2009, the juvenile court suspended criminal proceedings and ordered a psychological examination of minor to determine her mental competency. The psychologist who evaluated her, Edward Ryan, Ph.D., interviewed minor's mother, who said minor had always been in special education classes, although mother was not aware of a learning disorder diagnosis. Dr. Ryan reported that the tests of minor's neurological functioning indicated a learning disorder. He opined that these results, along with a history of banging her head when throwing tantrums, indicated a need for minor to be evaluated by a neuropsychologist. Nonetheless, he found her competent to stand trial.
On November 23, 2009, the juvenile court found minor competent and reinstated criminal proceedings. The juvenile court granted the People's motion to reduce counts 1 and 3 to misdemeanors, and to dismiss counts 4 and 5. Minor admitted counts 1 through 3. Based on the admissions, the juvenile court found that the allegations were true and that minor came within Welfare and Institutions Code section 602. The juvenile court then released minor to her mother's custody.
At a disposition hearing on December 22, 2009, the juvenile court declared minor a ward of the court, and placed her in the custody of her mother, under specified terms of probation.
On May 17, 2010, the probation department filed a probation violation petition, alleging that minor drove a friend's car without a license, failed to attend school regularly and exert her best efforts, possessed and consumed alcohol, and possessed a controlled substance. Minor admitted that she was failing two classes and had several discipline issues at school. The juvenile court found true the allegation that minor was in violation of her probation regarding the school condition, and dismissed the remaining allegations. The juvenile court ordered her to serve 14 days in juvenile hall.
On June 8, 2010, the probation department filed a subsequent Welfare and Institutions Code section 602 petition, alleging that minor committed misdemeanor battery (Pen. Code, § 242, count 1) and misdemeanor simple battery (Pen. Code, §§ 242, 243, subd. (a), count 2). Minor admitted count 2, and the juvenile court dismissed count 1. The juvenile court found the allegation true, found that minor came within Welfare and Institutions Code section 602, and detained her in the temporary custody of the probation department. The juvenile court ordered her to undergo psychological assessment.
Maya A. Petties, Psy.D., evaluated minor, who was approximately 16 years old. Dr. Petties reported that minor had a history of special education classes, which began in the fifth grade. Minor was expelled in the seventh grade for a serious fight, and then attended a continuation school for two years. She was currently failing two classes and had problematic behavioral issues at school (e.g., cursing out staff and students and disrupting class). A test that was administered indicated that minor's reasoning and thinking abilities were within the mild mental retardation range. Her personality testing revealed an "ill-defined coping style, poor stress-tolerance," and impulsivity, among other things. She was diagnosed with a mild case of "Bipolar I." Dr. Petties recommended that minor have tutoring for school, an individualized education plan (IEP), and additional assistance to help bring her to her academic grade skill level.
On June 23, 2010, the juvenile court held a disposition hearing, continued minor as a ward of the court, and placed her in her mother's custody on terms of probation. The prosecutor noted that minor had been accepted under the WrapAround mental health program; however, there was a waiting list. A therapist with the WrapAround program subsequently evaluated minor and identified her as having severe problems with psychosis. Minor exhibited delusions of persecution and severe paranoia. The therapist noted that minor was unable to control her emotions and became verbally and physically aggressive when upset. Minor was receiving therapy, and a psychiatrist was working to have her receive bimonthly injections of psychotropic medication to stabilize her symptoms.
See California Children and Family Services Division, Family Centered Services—WrapAround Web site, <http://www.childsworld.ca.gov> of Sept. 28, 2011.
On November 23, 2010, the probation department filed a violation of probation petition alleging that minor was failing to attend school regularly; that she stayed out over night without permission; and that she had consumed alcohol. At a hearing the next day, minor admitted consuming alcohol, and the other allegations were dismissed. Minor was detained in juvenile hall, pending further hearing.
In a probation report dated December 9, 2010, the probation officer reported that minor's issue with school was that she was constantly late because she was not getting up on time for school. The therapist opined that this problem had to do with minor's mental health issues. However, she attended school regularly when detained in juvenile hall. The probation officer recommended that minor be placed in a program where she would benefit from a structured environment.
At a disposition hearing held on January 19, 2011, minor requested that the juvenile court consider a therapeutic behavioral services (TBS) program, which was an out-of-custody voluntary program. Her mother testified at the hearing that minor had participated in that program before and benefitted from it. Minor's counsel argued in favor of having minor stay in the home, under a TBS program. The prosecutor argued that minor had already tried TBS, WrapAround, and probation in the home. All were unsuccessful, so it was time to change and put her in a structured environment.
The juvenile court stated that it had considered the previous report and noted that minor had a mental health condition, which she must learn to manage. The juvenile court noted that minor had already participated in WrapAround and TBS, and added that she had "done custody time." It stated: "But really the only arrow left in our quiver is placement. It's the last thing we can do to get her on a good start to adulthood." The juvenile court concluded that it was in her best interest to be placed, and it adopted "case plan findings 4(a) through 4(h)." This case plan included the requirements that the parent participate in a treatment program to include counseling, parenting classes, educational programs, and rehabilitation programs. The case plan additionally required the probation department to place minor in a safe setting, which was the least restrictive facility; the placement also had to be in close proximity to the parent's home, and best suited to meet minor's special needs and best interests. The juvenile court ordered minor to be continued as a ward, in the custody of probation while awaiting placement in a suitable foster care facility. The juvenile court added a few probation terms, including that minor cooperate in a plan of education, vocational training, and counseling.
DISCUSSION
The Matter Should Be Remanded for the Juvenile Court to Comply with Rule 5.651
Minor argues that the juvenile court abused its discretion because it failed to make the findings required by rule 5.651. Specifically, minor contends that the juvenile court was required to address, determine, and develop a plan for her general and special education needs, in accordance with rule 5.651 and state and federal law. The People claim that the juvenile court made adequate educational findings at the disposition hearing. We agree with minor.
Preliminarily, we note that "the type of disposition made by the juvenile court is within the sound discretion of that court. . . . An order of disposition, made by the juvenile court, may be reversed by the appellate court only upon a showing of an abuse of discretion. [Citations.]" (In re Darryl T. (1978) 81 Cal.App.3d 874, 877, superseded by statute on other grounds as stated in In re Dorothy B. (1986) 182 Cal.App.3d 509, 518.)
The Individuals with Disabilities Education Act is a federal law requiring that children with disabilities receive special educational programs. (See 20 U.S.C. § 1400 et seq.) California has enacted a statutory scheme to implement the federal requirement. (See Ed. Code, § 56000 et seq.) Rule 5.651 also implements the federal requirement, and it "applies to all children for whom petitions have been filed under [Welfare and Institutions Code] section[s] 300, 601, or 602." (Rule 5.651(a)(1).) Rule 5.651(b)(2) provides in relevant part: "At the disposition hearing and at all subsequent hearings provided for in (a), the juvenile court must address and determine the child's general and special education needs, identify a plan for meeting those needs, and provide a clear, written statement using Findings and Orders Limiting Right to Make Educational Decisions for the Child, Appointing Educational Representative, and Determining Child's Educational Needs (form JV-535), specifying the person who holds the educational rights for the child. The court's findings and orders must address the following: [¶] (A) Whether the child's educational, physical, mental health, and developmental needs are being met; [¶] (B) Any services, assessments, or evaluations, including those for special education and related services, that the child may need; [¶] (C) Who is directed to take the necessary steps for the child to begin receiving any necessary assessments, evaluations, or services; [¶] (D) If the child's educational placement changed during the reporting period, whether [¶] (i) The child's educational records, including any evaluations of a child with a disability, were transferred to the new educational placement within two business days of the request for the child's enrollment in the new educational placement; and [¶] (ii) The child is enrolled in and attending school; and [¶] (E) Whether the parent's or guardian's educational rights should be limited."
The record here clearly demonstrates that the juvenile court knew or should have known that the minor had academic difficulties, as well as a probable learning disability. She was failing two classes and had disciplinary problems at school. She had been in special education classes since the fifth grade. Dr. Ryan reported that the neurological functioning test results were indicative of a learning disorder. Dr. Petties reported that minor's reasoning and thinking abilities were within the mild mental retardation range. In addition, minor had an "ill-defined coping style, poor stress-tolerance," and impulsivity, among other things, and she was diagnosed with a mild case of Bipolar I. Dr. Petties recommended that minor have tutoring for school, an IEP, and additional assistance to help bring her to her academic grade skill level. Minor apparently had an IEP created on September 30, 2009. Thus, the record indicates that special attention to minor's education needs was appropriate. However, the juvenile court barely mentioned this issue at the disposition hearing on January 19, 2011. The juvenile court only added a probation term that she "cooperate in a plan of education." Although the People argue that the juvenile court "adopted the case plan which specified [that minor] had an active IEP," and that the juvenile court "put any further educational needs in the hands of probation," such actions did not satisfy the mandate of rule 5.651(b)(2). Among other things, the juvenile court was required to specifically address "[w]hether the child's educational, physical, mental health, and developmental needs [were] being met," identify "[a]ny services, assessments, or evaluations, including those for special education and related services, that the child may need," and determine "[w]ho [was] directed to take the necessary steps for the child to begin receiving any necessary assessments, evaluations, or services." (Rule 5.651(b)(2)(A), (b)(2)(B), (b)(2)(C).)
Accordingly, we remand the matter to the juvenile court to (1) address and determine minor's general and special educational needs; (2) identify a plan for meeting those needs; and (3) provide a clear written statement on form JV-535 with appropriate findings and orders, specifying who holds the education rights for minor.
The juvenile court's findings and orders must: (a) address whether minor's educational needs are being met; (b) address any services, assessments, or evaluations, including special education and related services, minor may need; (c) identify the person who is directed to take the necessary steps for minor to receive any needed assessments, evaluations, or services; (d) state whether minor's educational placement has changed; and (e) determine whether the parent's educational rights should be limited, all in accordance with rule 5.651(b)(2). (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1399.)
DISPOSITION
The dispositional orders of the juvenile court are affirmed. However, the matter is remanded with directions to make the required findings and orders under California Rules of Court, rule 5.651(b)(2), as to minor's educational needs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P.J.
We concur:
RICHLI
J.
CODRINGTON
J.