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In Re T.M., A Person Coming Under the Juvenile Court Law. v. T.M

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


May 10, 2011

IN RE T.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
T.M., DEFENDANT AND APPELLANT.

(Super. Ct. No. JV126322)

The opinion of the court was delivered by: Butz, J.

In re T.M.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The minor, T.M., appeals from the juvenile court's dispositional order committing him to an out-of-state placement. He contends the court abused its discretion by ignoring evidence that there were in-state facilities or programs "available and adequate" to meet his needs. We shall affirm the juvenile court's order.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2007, the then 13-year-old minor, was a dependent of the juvenile court pursuant to Welfare and Institutions Code section 300.*fn1 Due to a history of physical and emotional abuse at the hands of his mother, the minor had been declared a dependent child of the juvenile court in March 1999, and again in May 2007.

In early October 2007, a section 602, subdivision (a) petition was filed, alleging the minor committed vandalism. On October 29, 2007, the minor was placed on six months of informal supervision under section 654.2*fn2 when the court found true the allegation that he vandalized property at the Sacramento Children's Receiving Home (SCRH) where he was placed after having been removed from foster care. The court ordered that the minor continue as a dependent of the juvenile court (§ 300) and that he remain in the custody of the Sacramento County Department of Health and Human Services for appropriate placement.

The minor was first placed at Trinity Group Home in Ukiah, but was terminated from that facility after two weeks due to his "'horrible behavior'" and "'regularly absconding.'" He was returned to the SCRH on November 15, 2007.

In January 2008, the minor was expelled from middle school for "continued misbehavior," which included physical and verbal threats on his teacher.

On February 8, 2008, after reportedly engaging in rude and disruptive behavior and leaving the SCRH without permission for nearly a month, the minor absconded from that facility and a warrant was issued for his arrest.

A notice was filed alleging the minor violated his informal supervision (Welf. & Inst. Code, § 654.2) by remaining away from his court-ordered placement without permission and failing to keep his probation officer informed of his address and telephone number. On March 14, 2008, the minor admitted the vandalism allegation--deemed a misdemeanor--in the October 2007 wardship petition. (Pen. Code, § 594, subd. (b)(1).) The informal supervision violation was dismissed in the interest of justice. The court continued the minor's dependency status and placed him on six months of court probation pursuant to Welfare and Institutions Code section 725, subdivision (a) (hereafter section 725(a)).*fn3 The minor was placed in-state (sometimes referred to as "Level A placement") at Circle C Ranch in Stockton.

On April 17, 2008, after several incidents involving theft, vandalism, and animal cruelty,*fn4 and reports from the group home manager that the minor was being confrontational and threatened to become combative and to assault staff, the minor absconded from Circle C Ranch and a warrant was issued for his arrest.

A second violation of probation notice (§ 725(a)) was filed alleging the minor violated probation by remaining away from his group home overnight without permission from staff, remaining away from his group home for more than 48 hours without permission from his probation officer, and failing to keep his probation officer informed of his living arrangements. On May 15, 2008, the minor admitted the first allegation, and the remaining allegations were dismissed in the interest of justice. The court continued the minor's dependency status and again placed him on six months of probation pursuant to section 725(a). The minor was placed in Level A placement at the Woodland Youth Group Home in Woodland.

On June 16, 2008, while being transported to meet with his probation officer, the minor absconded. A warrant was issued for his arrest.

A third violation of probation notice (§ 725(a)) was filed alleging the minor violated probation by failing to keep his probation officer informed of his address and telephone number, and failing to obey the reasonable directives of his probation officer. On July 17, 2008, the minor admitted the first allegation, and the remaining allegation was dismissed in the interest of justice. The court continued the minor's dependency status and again placed him on six months of court probation pursuant to section 725(a). The minor was placed in Level A placement at Burrell's Place Group Home in San Francisco. He absconded eight days later.

On July 30, 2008, the minor and his accomplice, both with their hands under their shirts, approached a man near a MUNI bus station in Daly City. The minor directed the victim to "'stay right here.'" The victim, believing the two men to be armed and fearing for his life, ran away. The minor and his accomplice gave chase, but the victim was able to escape them by running into a bar and calling police.

Five minutes later, the minor and an accomplice approached a man from behind, grabbed him and placed him in a chokehold, causing the victim to momentarily lose his orientation. When the victim became reoriented, he realized the minor was holding a can of pepper spray to his face and his cellular phone and MP3 player were missing. The victim told the minor he would stop resisting if the minor would not spray him with pepper spray. The accomplice took the victim's wallet containing $100 and he and the minor fled.

Police later located the minor and his accomplice, both of whom admitted involvement in the second robbery but denied any involvement in the first incident. The first victim positively identified the minor and his accomplice. Police found $40 in cash, the MP3 player and pepper spray on the minor. His accomplice had $60 in cash and the second victim's cell phone.

On July 31, 2008, the San Mateo County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor committed robbery by force and fear (Pen. Code, § 212.5, subd. (c)--count 1) and attempted robbery by force and fear (id., § 664/212.5, subd. (c)--count 2), both felonies.

At the jurisdictional hearing on August 6, 2008, the minor admitted count 1 of the petition. Count 2 was dismissed in the interest of justice. The juvenile court continued the minor as a ward of the court*fn5 and transferred the matter to Sacramento County--the minor's place of legal residence--for disposition.

On September 5, 2008, the Sacramento County Juvenile Court terminated the minor's dependency status, adjudged him a ward of the juvenile court, committed him to juvenile hall for 38 days, with credit for time served, and committed him thereafter to the custody of the probation department for suitable Level A placement. The minor was placed at the Sacramento Assessment Center on September 10, 2008. He absconded several days later.

On September 28, 2008, the minor and several accomplices forced a 62-year-old victim off his bike, then took the bike and fled. Shortly thereafter, the victim located the minor and the others and confronted them about the theft. The minor and his cohorts attacked the victim, punching and kicking him. The victim later identified the minor.

On September 30, 2008, the Sacramento County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor committed felony assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)--count one) and battery resulting in the infliction of serious bodily injury (id., § 243, subd. (d)--count two). On October 15, 2008, the district attorney filed a notice of violation of probation based on counts one and two, in lieu of the subsequent petition filed on September 30, 2008.

On October 15, 2008, the court dismissed the September 30, 2008 subsequent petition. The minor admitted count two of the violation of probation (battery with serious bodily injury). Count one was dismissed in the interest of justice. The court continued the minor as a ward of the juvenile court, committed him to juvenile hall for 18 days, with credit for time served, and committed him thereafter to the custody of the probation department for suitable Level A placement. The minor was placed at the KTDA Group Home in Fresno on January 16, 2009. He absconded on February 22, 2009, but was ultimately returned to that facility.

On April 15, 2009, the minor punched another student in the head, then told the victim, "'I am 44th Street Blood'" and threatened to kill him if he reported the attack.

On April 17, 2009, the Fresno County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor committed felony dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)--count 1 [felony]) and two counts of misdemeanor battery (id., § 242--counts 2 & 3).

On April 28, 2009, the minor admitted count 1 of the petition, as amended to a misdemeanor (Pen. Code, § 136.1, subd. (b)(1)), and the remaining counts were dismissed. The matter was transferred to Sacramento County for disposition.

On May 19, 2009, the Sacramento County Juvenile Court continued the minor's status as a ward of the juvenile court, committed him to juvenile hall for 36 days, with credit for time served, and committed him thereafter to the custody of the probation department for suitable Level A placement. The minor was placed at the Fresno Unity Group Home in Fresno on May 28, 2009. He absconded from that facility two days later and a warrant was issued for his arrest.

On October 19, 2009, the minor and an accomplice punched a 19-year-old man with cerebral palsy several times and attempted to take away his cell phone. However, the victim yelled for help and the minor and his cohort backed away, as the minor told the victim he was a "'Blood'" from Fruitridge. When police detained the minor, he had a gang tattoo and gang clothing and admitted being a member of the "'Fruitridge Vista Bloods.'" The victim identified the minor in a field lineup.

On November 6, 2009, the Sacramento County District Attorney filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) alleging the minor committed attempted felony robbery (Pen. Code, § 664/211--count one). An amended petition, filed on November 30, 2009, alleged the minor committed attempted robbery (id., § 664/211--count one) and robbery (id., § 211--count two). The amended petition alleged the minor personally used a firearm in the commission of count two. (Id., § 12022.53, subd. (b).)

A social study report dated November 2, 2009, recommended suitable Level A placement for the minor. On November 30, 2009, the juvenile court referred the matter back to the probation department for a "Level B" evaluation. On December 18, 2009, the probation department issued a memorandum to the court recommending Level A placement, stating the "IMAC [Interagency Management Authorization Committee] was in agreement" with such recommendation.

A contested jurisdictional hearing was held on April 13, 2010. The court sustained the amended petition (filed Nov. 30, 2009) finding count one (attempted robbery) true and count two not true.*fn6

The dispositional hearing was held on April 19, 2010, about two months before the minor turned 16. After considering the relevant reports and statements and hearing argument from counsel, the court continued him as a ward of the court and found that Level B placement was appropriate, stating as follows: "The Court finds that the out[-]of[-]state placement is necessary and appropriate as the in-state facilities are inadequate as demonstrated by numerous prior placements which have failed to remedy, rehabilitate, or assist [the minor] in the matters for which he has come before this court being state facilities are unavailable to meet his needs. [¶] As noted in the December 18th report, the IMAC assessment placement recommendations have been considered pursuant to [section] 727.1 of the Welfare and Institutions Code and section 7911.1 of the Family Code. Institutional care out of state is in the best interest of the minor and would not produce undue hardship."

The minor filed a timely notice of appeal.

DISCUSSION

The minor contends the juvenile court abused its discretion when it found that in-state facilities were inadequate or unavailable to meet his needs. We disagree.

"When the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727, the decision regarding choice of placement shall be based upon selection of a safe setting that is the least restrictive or most family like, and the most appropriate setting that is available and in close proximity to the parent's home, consistent with the selection of the environment best suited to meet the minor's special needs and best interests." (§ 727.1, subd. (a).)

Section 727.1, subdivision (b) provides, in relevant part, that a court's order of placement of a minor ward in an out-of-state facility must include a finding that "[i]n-state facilities or programs have been determined to be unavailable or inadequate to meet the needs of the minor." (§ 727.1, subd. (b)(1).)

"We review a [juvenile court's] commitment decision only for abuse of discretion, and indulge all reasonable inferences to support the decision of the juvenile court." (In re Asean D. (1993) 14 Cal.App.4th 467, 473; In re Todd W. (1979) 96 Cal.App.3d 408, 416.) "An appellate court will not lightly substitute its decision for that rendered by the juvenile court. We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them. [Citations.] In determining whether there was substantial evidence to support the commitment, we must examine the record presented at the disposition hearing in light of the purposes of the [Arnold-Kennick] Juvenile Court Law. (§ 200 et seq.; In re Todd W., supra, at pp. 416-417.)" (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)

The relevant portion of the juvenile court law is, in part, encompassed in section 202, subdivision (a), which provides as follows: "The purpose of this chapter is to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public. If removal of a minor is determined by the juvenile court to be necessary, reunification of the minor with his or her family shall be a primary objective. If the minor is removed from his or her own family, it is the purpose of this chapter to secure for the minor custody, care, and discipline as nearly as possible equivalent to that which should have been given by his or her parents. This chapter shall be liberally construed to carry out these purposes."

Section 202, subdivision (b) provides: "Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. If a minor has been removed from the custody of his or her parents, family preservation and family reunification are appropriate goals for the juvenile court to consider when determining the disposition of a minor under the jurisdiction of the juvenile court as a consequence of delinquent conduct when those goals are consistent with his or her best interests and the best interests of the public. When the minor is no longer a ward of the juvenile court, the guidance he or she received should enable him or her to be a law-abiding and productive member of his or her family and the community."

Here, the court acknowledged the recommendation of Level A (in-state) placement from both the IMAC and the probation department, but found that in-state facilities or programs were inadequate based on evidence that the minor's numerous prior in-state placements "failed to remedy, rehabilitate, or assist" him, and thus out-of-state placement was "necessary and appropriate." There is ample support in the record for that conclusion.

The minor regularly absconded from his first group home placement in Ukiah in October 2007. He engaged in disruptive behavior and absconded from his second placement at the SCRH in February 2008. In April 2008, he absconded from his third Level A placement in Stockton. He absconded from his fourth Level A placement at a group home in Woodland in June 2008, and thereafter absconded from his fifth Level A placement at a group home in San Francisco in July 2008 after only eight days. In September 2008 he absconded from his sixth Level A placement at the Sacramento Assessment Center within several days. In February 2009 he absconded from, and was returned to, his seventh Level A placement at a group home in Fresno, but within two months he committed additional crimes. In April 2009 the matter was transferred to Sacramento County and thereafter the minor absconded from his eighth and final Level A placement at a group home in Fresno on May 30, 2009, just two days after placement.

The minor's misconduct became increasingly more serious over time as well, beginning with disruptive and threatening behavior and advancing to theft, vandalism and animal cruelty, then to attempted robbery and robbery, then assault and battery of a 62-year-old victim, followed by battery resulting in infliction of serious bodily injury, and finally an attack on a 19-year-old victim with cerebral palsy which included gang-related threats. The record makes clear that the numerous Level A (in-state) placements were inadequate to meet the minor's needs.

Citing section 727.1, subdivision (b)(1), the minor argues that, "[i]n order to conform to the purpose of Juvenile Court Law, a juvenile court order placing a minor out-of-state is statutorily prohibited without a finding that no viable in-state placements exist." The minor misstates the law. Section 727.1, subdivision (b)(1) provides that out-of-state placement is permitted where a court finds that in-state facilities or programs are "unavailable or inadequate to meet the needs of the minor." (Italics added.) The court need not find that in-state facilities are both unavailable and inadequate.

Here, the juvenile court considered all relevant evidence regarding the minor's history and found in-state facilities to be "inadequate as demonstrated by numerous prior placements which have failed to remedy, rehabilitate, or assist [the minor]." We note that the minor's mother, who argued at the hearing to have the minor returned to her care and custody, stated her belief that in-state custody would only be appropriate if it were isolated and structured, and admitted that, if the minor were returned to her, she would consider sending him to an out-of-state facility.

Given the minor's extensive history of failure at eight in-state placements in a period of a year and a half, coupled with his increasingly dangerous and violent conduct, out-of-state placement is consistent with the minor's best interest and appropriate for his circumstances. The juvenile court's determination has substantial support in the record. There was no abuse of discretion.

DISPOSITION

The juvenile court's order is affirmed.

We concur: RAYE, P. J. NICHOLSON, J.


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