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In Re R.H., A Person Coming Under the Juvenile Court Law. v. R.H

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


February 1, 2012

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

(Super. Ct. No. 52004952)

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

In re R.H.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After R.H. (the minor) admitted committing a felony, attempted grand theft (Pen. Code, §§ 664, 487, subd. (c)), the juvenile court declared him a ward of the court and placed him on probation with various terms and conditions. The probation department subsequently filed seven petitions against the minor for violations of probation. (Welf. & Inst. Code, §§ 602, 777.)*fn1

MINOR'S CONTENTIONS

The minor asserts that "in the opening brief [he] raises only one argument -- that the court's June 23 and August 23, 2010 orders must be reversed because they constitute an abuse of discretion." However, the minor's opening brief contains several discrete contentions -- each properly set forth under a separate heading -- that argue for the reversal of the juvenile court's orders under the abuse of discretion standard of review. Specifically, the opening brief urges us to conclude that the juvenile court erred (1) by twice rejecting the probation department's recommendation to send the minor home after he failed in his group home placements, (2) in making placement orders that were not in the best interests of the minor or society, and (3) by failing to order his mental competency to be assessed during the period from December 2007 until February 2008.

We conclude that the juvenile court did not abuse its discretion in declining to return the minor to his home while his problematic behaviors required a more structured setting. We do not find that the juvenile court's placement orders were made in derogation of the minor's or society's best interests. Finally, we deem the minor's mental competency claim to be non-cognizable because it relates to appealable orders from which the minor did not appeal. Accordingly, we affirm the juvenile court's June and August 2010 placement orders.

FACTUAL AND PROCEDURAL HISTORY

Juvenile Wardship Petition (§ 602)

The facts of the offense leading to the minor being declared a ward of the court are not relevant to the issues raised in this appeal. Thus, we note only that the probation report recounts the minor's attempt to snatch a purse from an elderly woman who was targeted because "she couldn't walk fast and was old."

Subsequent Petitions (§§ 602, 777)

After the juvenile court declared the minor a ward of the court, the probation department filed seven supplemental petitions alleging violations of probation on April 21, 2008 [alleging the minor left school without permission], May 23, 2008 [alleging assault on a teacher, vandalism, failure to obey school rules, and leaving school without permission], August 12, 2009 [alleging the minor absconded from a placement with Victor Youth Services], November 2, 2009 [alleging the minor absconded from a placement at the Milhous Group Home], March 26, 2010 [alleging the minor absconded from a court-ordered placement], May 14, 2010 [alleging the minor again absconded from the Milhous Group Home], and June 7, 2010 [alleging the minor absconded from a group home and was drunk in public].

June and August 2010 Placement Orders

In June 2010, the probation department recommended that the minor be returned home to his mother with "wraparound services."*fn2 In support, the minor's probation officer explained:

"Probation has explored all placement options including but not limited to group home placement RCL 12 or higher in state, group home placement RCL 12 or higher out of state, boot camp with additional mental health services, or a return home with WRAPAROUND and additional county services. Due to minor's lack of criminal sophistication Probation also explored having 26.5[*fn3 ] services take the lead placement role for the minor so that we may better address his education and mental health needs. Probation has met with the 26.5 worker on [R.H.]'s case and with the Assistant Director of the Children's System of Health Care at Health and Human Services to explore each of these options. At this time it is the opinion of Probation and 26.5 that the minor be returned to the home of his mother with WRAPAROUND services. [R.H.] has been away from his family for greater than two years, during such time he has matured mentally and physically, and can benefit from the structure and natural supports that his family can offer."

On June 23, 2010, the juvenile court entered an order continuing the minor as a ward of the court and directing that he be placed in a suitable group home.

On August 4, 2010, the minor petitioned the juvenile court to modify its placement order to allow him to stay with his mother on weekdays. The petition alleged that no suitable group home had been found for him, and that he was "experiencing increased anxiety being locked up beyond any court ordered incarceration." The court denied the petition on August 23, 2010.

The minor timely filed notices of appeal from both the June 23 and August 23, 2010, orders.

DISCUSSION

I

June and August 2010 Placement Orders

The minor contends the juvenile court erred on June 23, 2010, and August 23, 2010, by rejecting the probation department's recommendations to send him to live with his mother. The minor further argues that the placement orders constituted an abuse of discretion by failing to promote his or society's best interests. We are not persuaded.

A. Discretion to Select the Proper Placement

We review a juvenile court dispositional order for abuse of discretion. (In re A.E. (2008) 168 Cal.App.4th 1, 4.) "'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. (In re Eugene R. [(1980) 107 Cal.App.3d 605,] 617; In re Michael R. (1977) 73 Cal.App.3d 327, 332-333.) 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 Juvenile Court Law. (§ 200 et seq.; In re Todd W. [(1979) 96 Cal.App.3d 408,] 416-417.)' (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)" (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.)

Section 202 informs the juvenile court's exercise of discretion in selecting the proper placement for a juvenile who is a ward of the court.*fn4 That section "recognizes punishment as a rehabilitative tool and emphasizes the protection and safety of the public. (Stats. 1984, ch. 756, §§ 1, 2.) The significance of this . . . is that when we assess the record in light of the purposes of the Juvenile Court Law (In re Todd W., supra, 96 Cal.App.3d at pp. 416-417), we evaluate the exercise of discretion with punishment and public safety and protection in mind." (In re Lorenza M., supra, 212 Cal.App.3d at pp. 57-58.)

Although the Welfare and Institutions Code anticipates progressively more restrictive and punitive placements, it does not preclude the juvenile court from selecting a placement without first attempting less restrictive placements. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)

B. Group Home Placement

The juvenile court did not err in ordering a group home placement for the minor despite the probation department's recommendation of a less restrictive placement. The minor's multiple violations of probation even with the structure of a group home provided a basis for the juvenile court to conclude that less restrictive placements -- such as with his mother -- would be ineffective in rehabilitating him. The record shows that the minor fled from his current and previous placements. All seven of the subsequent petitions alleging violations of probation involved the minor absconding from school or a group home. As the juvenile court noted when issuing its June 23 order:

"[T]he Court has been reviewing this matter from time to time. As recently as three weeks ago Judge Nichols placed the minor in a . . . suitable group home, and he ran. And it was a group home that was near so that there could be integration with the family and reunification services and so forth. And then the incident -- or the recent incident within the last month being restrained here in the hall."

The court then addressed the minor as follows: "The problem is . . . that you are on probation, and the things that you have been asked to do have not happened. And very recently there . . . has been trouble that has been frightening to the -- to someone who is trying to be in a -- place you in a situation where you can succeed and be successful on probation.

"As recently as ten days ago, according to this assessment, after the time when you were last in court, . . . you exhibited behavior of poor peer relations and calling people names and using inappropriate language a couple of days before that and making negative references and so forth.

"So, [R.H.], the situation for you to go home and for you to be able to participate fully in your family life and community life has to come after you are successful in a group home. . .

"In the interim and while we are trying to get additional information, you have additional behavioral problems that suggests to me that your success at home is questionable at this time. So you do need the structure, additional structure.

"So the Court continues with prior orders. The physical custody of the minor is removed from the home of the mother. The previous findings that were made remain the findings of the Court. The parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, or education for the minor."

The juvenile court was not required to accept the probation officer's recommendation of "wraparound services" provided while the minor stayed at his mother's home. The minor's repeated absconding and other violations of the terms of his probation belied the probation officer's conclusion that the minor had "matured mentally and physically." The inability to comply with court orders and group home rules provided an adequate basis for the juvenile court's conclusion that the minor needed the structure offered by a group home.

We note that in ordering a group home placement, the juvenile court remained mindful that less restrictive placements are a goal of rehabilitation. To this end, the juvenile court ordered the probation officer to facilitate reunification of the minor with his parents.

The minor asserts that his "complex needs and his tendency to leave placements without permission made it increasingly difficult to find an appropriate high-level group home to accept him. Because of this, [he] spent substantial amounts of time incarcerated in juvenile hall, a place ill-equipped to meet his specialized psychological and education needs." The minor further notes that the probation department "reported to the court that it had 'exhausted' all options and was unable to locate an appropriate in-state group home for the minor." On this basis, the minor concludes he should have been returned home to his mother.

We disagree that the minor's inability to conform his behavior to the rules of a group home setting entitle him to a much less structured placement offered by his mother. The probation department's exasperation at finding a suitable setting for the minor did not entitle him to return home when, as the juvenile court found, he needed a more structured setting for his rehabilitation.

C. Best Interests of the Minor and Society

As the minor correctly notes, the juvenile court is required to balance the best interests of the minor and society in selecting a placement. It is well settled that "[a] fundamental premise of delinquency adjudication is that the court must focus on the dual concerns of the best interests of the minor and public protection." (In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1684.) The minor argues that "the court's order refusing [his] request to go home was not in his best interests or the best interests of society." Specifically, the minor contends he should not have had to endure detention in juvenile hall while the probation department worked to find a group home qualified to address his behavioral challenges.

The court did not ignore the best interests of the minor and society in continuing his group home placement. In effect, the minor contends that the juvenile court was required to reward his poor behavior requiring increasingly structured group home placements by returning him to his mother. The minor's repeated violations of probation and group home rules eventually exhausted appropriate placements in California. Thus, he was held in juvenile hall while a suitable placement was being located for him. The juvenile court was not required to give up its efforts to rehabilitate the minor because his poor behavior made his placement difficult. As the juvenile court found, the minor's mother was unable to provide the structure the minor needed for rehabilitation. In issuing the August 23, 2010, order the juvenile court explained:

"I know the mother has been a strong advocate for the minor, and I recognize the efforts that the minor's mother has made, but when I look back over the case carefully and the conversations that were had when the Court initially denied RAFT services, the Court considered the age of the minor, the type of offense, and the gravity of the offense and the difficulties that have happened throughout.

"The minor was placed in a foster home a little more than two years ago. There is a history here where the minor has absconded numerous times.

"I know observations have been made about his not being unusual, but the overarching concern, of particular concern with [R.H.] from the initial offense to some of the other difficulties and items reported in the Hall, while I observed the minor has done well in the Hall recently, has been dangerous behavior.

"Recently, the issue of indicating that, 'How did you catch me? I planned to run to San Francisco. You would have never caught me after that. I am going to grab your gun and shoot you when I get out of the car.'

"And I know in previous hearings there's been some denial or discussion about whether or not the statement was made. That's what is reported to the Court.

"The mother initially when RAFT services were discussed had indicated -- and I believe she was being candid, and so forth -- 'You know, it is a challenge for us at home. So long as support systems are in place, I'm willing to try that again.'

"It seems throughout [R.H.]'s placement when support services are in place, when there is a careful monitoring and structure, even in the group home there are difficulties.

"And I also don't want to overlook, along with the inability or the refusal to follow directives when in placement, the issue of running away or absconding.

"There is the issue in 2009 there was an indecent exposure issue.

"There was also the time when the minor, I believe, had tied something around his neck and had to be placed in a safety smock." (Italics added.)

The record thus indicates that the juvenile court took the minor's history and current status into account when it concluded that the safety of the minor and society required a more restrictive placement than his mother could provide. The juvenile court did not abuse its discretion in concluding that both the minor and society were best served by a placement calculated to rehabilitate the minor.

II

Mental Competency

The minor contends the juvenile court should have suspended proceedings sua sponte to have his mental competency assessed before the court "accepted [his] admission to the allegation of nine separate petitions" setting forth violations of probation. The minor limits his argument to the period between the December 20, 2007, jurisdictional hearing and the February 21, 2008, dispositional hearing.

In his reply brief, the minor disclaims his mental competency constitutes a discrete contention on appeal. The brief states, "The argument that the court violated the minor's due process rights by failing to suspend proceedings for a competency determination is not asserted as a stand alone argument. Rather, [the minor] raises this sub-argument to emphasize why the court's June and August orders were contrary to the minor's best interests and reflect an abuse of the court's discretion."

The minor's retreat from the mental competency claim follows the People's contention that the minor's failure to appeal from the earlier jurisdictional hearings forfeited his argument that the court erred on those occasions by not ordering mental competency evaluations. We agree with the People that the mental competency claims are not cognizable in this appeal. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138 [failure to appeal from an appealable order forecloses subsequent attack on that order in an appeal taken from a later appealable order or judgment].) A close reading of the minor's opening brief shows that he does not challenge the propriety of the June 23 and August 23, 2010, placement orders (from which he currently appeals) on grounds of mental competency. Thus, the minor's argument is non-cognizable in this appeal because it concerns the validity of earlier appealable orders from which he did not appeal. (In re Shaun R., supra, 188 Cal.App.4th at p. 1138.)

The minor requests that we exercise our discretion to review the claim on the merits even if it may otherwise be deemed forfeited. We lack power to consider the issue. "If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal. [Citations.]" (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; see also Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.) The minor's failure to raise the mental competency issue by appealing from the prior appealable orders to which his challenge pertains prevents us from now considering the issue.

DISPOSITION

The placement orders entered by the juvenile court on June 23, 2010, and August 23, 2010, are affirmed.

We concur: BLEASE , Acting P. J. ROBIE , J.


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