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In Re Jerome D., A Person Coming Under the Juvenile Court v. Jerome D

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


February 7, 2013

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

(Super. Ct. No. JV128685)

The opinion of the court was delivered by: Blease , Acting P. J.

In re Jerome D. CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION ON TRANSFER

Minor Jerome D.*fn1 appeals from an April 2010 order of the juvenile court after a contested dispositional hearing. The minor argues the juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; hereafter ICWA), failed to determine whether he had any special educational needs, and failed to calculate his custody credits properly. (The minor originally had also argued there was an abuse of discretion in committing him to an Iowa facility rather than the home of a relative in Ohio. In accordance with his subsequent request, we will disregard this claim.) We affirm.

We omit the jurisdictional facts relating to the minor's offenses and violations of probation, because they are not relevant to the arguments on appeal. We will incorporate the facts pertinent to each of the minor's claims in the Discussion, post.

PROCEDURAL BACKGROUND

In November 2008, the minor admitted allegations that he came within the jurisdiction of the juvenile court because he had committed attempted robbery. (Welf. & Inst. Code, § 602*fn2 .) The court granted probation and imposed but stayed a commitment to the Thornton Youth Center (Youth Center) (the court vacated the commitment in March 2009 upon the minor's completion of community service).

The People filed a subsequent petition later in March 2009, based on the minor's commission of a robbery (for which he was being held in custody in juvenile hall). The juvenile court sustained the petition and ordered the minor's commitment to the Youth Center. The minor completed the residential portion of the commitment in June 2009 (upon the program's closing) and returned to his mother's custody under the supervision of the probation department.

In October 2009, the minor admitted an allegation that he violated probation when he resisted arrest in July 2009 for fighting in public (which resulted in a brief placement in juvenile hall). The court ordered the minor's commitment to the Sacramento Boys Ranch (Boys Ranch). Initially, it stayed execution of the commitment and released the minor on home supervision. The minor's mother reported that he was leaving the house without her permission, and the probation department moved to modify his custody status (holding him in juvenile hall pending the court's modification). The juvenile court committed the minor to the Boys Ranch.

The People filed a subsequent petition in November 2009 in which they alleged violations of probation (for which the minor was being held in juvenile hall). The minor admitted having been suspended from school for misconduct, and the juvenile court dismissed the other allegations. Following the contested disposition hearing in April 2010, the juvenile court ordered the minor's commitment to a placement in an Iowa facility for a maximum period of five years and eight months; it denied the minor's motion for reconsideration.

DISCUSSION

I

A

On the initial detention of the minor in November 2008, the intake report described his ethnicity as Black, but the mother stated that "there is Cherokee Indian/Native American Heritage on both the maternal and paternal side of the family. However, the family is not registered with the tribe." In accordance with the then-prevailing practice of the juvenile court, the report asserted that "Although the minor may have Indian/Native American Heritage, termination of parental rights is not likely the case plan. Therefore, the [ICWA] does not apply . . . ." The juvenile court adopted a proposed finding to this effect in ordering the minor's detention. The probation officer's social study reiterated a similar proposed finding, which the juvenile court's November 2008 order also adopted.

In connection with the subsequent petition in March 2009, the intake report simply cited the November 2009 finding, and the juvenile court again adopted the report's proposed finding of the ICWA's inapplicability in its detention order. However, the social study subsequently included a proposed finding asserting--incorrectly--that the prior order in November 2008 had determined that the ICWA did not apply because "the minor was not of Native American Heritage or Ancestry." The juvenile court's April 2009 order adopted this erroneous proposed finding.

The intake report for the July 2009 probation violation then cited the April 2009 order (as did the social study), which resulted in an October 2009 dispositional order perpetuating the error. The reports and findings for the November 2009 petition simply asserted the minor's lack of Indian ancestry without additional elaboration (other than a single reference to the erroneous finding to this effect in the October 2009 order), and the family assessment case plan (§§ 706.5, 706.6) described his ethnicity only as "Black or African American."

B

In briefing filed in September 2010, the minor contended that, once the disposition of the present matter considered placing him in an Iowa facility, this put him at risk of entering into the equivalent of foster care,*fn3 which triggered the requirement under state law of complying with the procedural provisions in the ICWA for investigating whether he is or may be an Indian child and for providing notice to any implicated tribes, even though the case plan does not include termination of parental rights. (R.R. v. Superior Court (2009) 180 Cal.App.4th 185, 193-194 (R.R.); §§ 224.2, 224.3; Cal. Rules of Court, rules 5.480-5.484.)*fn4

In our original opinion, we noted our Supreme Court had granted review of a decision, In re W.B. (2010) 182 Cal.App.4th 126, rev. granted May 12, 2010, S181638 (W.B.), which disagreed with R.R. and concluded state law cannot expand the reach of the ICWA to delinquency cases. In August 2011, our Supreme Court granted review in the present matter and deferred further action until W.B. was decided.

In August 2012, our Supreme Court issued its opinion in W.B. (In re W.B. (2012) 55 Cal.4th 30.) In relevant part, In re W.B. holds that "if the section 602 petition alleges the minor committed an act that would be a crime if committed by an adult, the proceedings are generally exempt from ICWA. ICWA procedures are ordinarily not required in such proceedings because the placement of a delinquent ward outside the home will almost always be based, at least in part, on the ward's criminal conduct." (Id. at p. 58.) The only exception is the "rare case[]" in which the juvenile court removes a minor "solely because of parental abuse or neglect." (Id. at p. 59.) In re W.B. held Rule 5.480 was overbroad in that it "does not account for the limited applicability of ICWA in delinquency cases." (Id. at p. 58, fn. 17.)

In October 2012, the court transferred the present matter to this court for reconsideration in light of In re W.B. Having reconsidered the issue, we now conclude the minor's ICWA contention has no merit.

In this case, the November 2008 section 602 petition alleged the minor committed an act, attempted robbery, that would be a crime if committed by an adult. (Pen. Code, §§ 211, 664; see In re W.B., supra, 55 Cal.4th at p. 58.) The March 2009 subsequent petition alleged the minor committed a completed robbery. The transcript of the disposition hearing makes plain that the minor's placement at the out-of-state facility was based on his criminal conduct and his ensuing inability to control his behavior at home, at juvenile hall, and at the Boys Ranch. (See In re W.B., supra, at p. 58.) The juvenile court expressly negated any suggestion of parental abuse or neglect, telling mother, "I think it is important to note that . . . you love your son and are doing everything that you can to help him, to protect him and guide him. But we are here today because Jerome continues to make certain decisions." (See Id. at p. 59.) Applying In re W.B., we conclude ICWA has no application to this juvenile delinquency case.

II

A

The various reports and social studies in the proceedings leading up to the November 2009 subsequent petition noted that the minor had a diagnosis of attention-deficit hyperactivity disorder (ADHD), for which he took medication. However, he did not have a diagnosed learning disorder, was not the subject of an individualized education plan (IEP),*fn5 and did not qualify for one. On this basis, the juvenile court determined in its October 2009 order that the minor did not have exceptional needs.

In its December 2009 update for the present petition, the probation department included a proposed finding to the same effect. Its family assessment/case plan reiterated that the minor was neither the subject of an IEP nor had any educational needs, but identified his ADHD as a "mental health educational" need.

The minor's counsel had solicited a psychiatric evaluation of him. The minor had been taking various medications for ADHD since at least third grade. After continued conflict with his teachers and peers in eighth grade, the minor was in an independent-study program. The doctor observed that the minor's behavioral problems at the Boys Ranch had improved once he obtained access to his medications. Although the doctor acknowledged that "there was no evidence [of] cognitive impairments or learning disabilities," he nonetheless recommended the minor "should be evaluated for an IEP" to accommodate a "serious emotional disability." He also believed an aggressive approach to the minor's medication would improve any behavioral problems.

In a second supplement, the probation department reiterated its proposed finding on the lack of any exceptional needs, and the retention by the mother of the right to make educational decisions. The juvenile court's present order incorporated the recommendations.

B

The minor states, without any evidentiary or legal support, the proposition that "Youth [who] suffer[] from ADHD generally have special education[al] needs, and the failure to have such needs provided for often leads to serious consequences." He claims the juvenile court failed to assess or determine his educational needs despite the recommendation in his evaluation (asserting in passing that the juvenile court "prevented" the doctor from testifying) and we should remand for the purpose of ordering an IEP. He contends this violated the juvenile court's duty under Angela M., supra, and asserts his failure to raise a contemporaneous objection to this purported dereliction should not forfeit the issue.

If minor's counsel had any basis for believing the minor had any exceptional needs that would benefit from an evaluation for an IEP, it was incumbent upon her to object at the time the juvenile court announced its intention to adopt the finding to the contrary. We presume she had reasons to the contrary to consider this unnecessary (foremost among which would have been her concurrence in the probation department's assertion that the minor did not qualify for one, or the opinion in the psychiatric evaluation that his behavioral problems could be controlled with an aggressive pharmaceutical approach). The issue thus is forfeited on appeal. In any event, the claim fails on the merits.

In the first place, the court did not "prevent" the doctor from testifying. At the disposition hearing, the minor's counsel stated she did not intend to call the doctor as a witness unless either the juvenile court or the People wanted to cross-examine him about the evaluation. Both demurred to the offer, the court stating, "I think his report is quite clear."

Angela M., supra, explained that under various state and federal provisions, a minor has "exceptional" educational needs if an IEP has determined that the minor has an impairment of sufficient degree to require special education that modification of a regular school program cannot provide. (111 Cal.App.4th at pp. 1397-1398.) At the time of the decision, a court rule provided that in declaring a child its ward the juvenile court "'must consider the educational needs of the child,'" which Angela M. construed as imposing a mandatory duty to "consider or determine whether [a minor has] special educational needs."*fn6 (Id. at p. 1398 [emphasis added].) Even though there were facts that would indicate the existence of special educational needs, Angela M. did not believe the court gave this any consideration because it "did not mention this issue when committing her to the CYA." (Id. at p. 1399.)

Angela M. is thus doubly distinguishable. The present renumbered version of the rule does not include a direction to consider education needs when finding a minor to be a ward of the juvenile court, other than to "consider whether it is necessary to limit the right of the parent . . . to make educational decisions for the child." (Rule 5.590(f)(5).) (The juvenile court's order, as noted, does include a finding that it was unnecessary to limit the mother's educational rights.) Thus, an Angela M. duty does not exist any longer. Moreover, the juvenile court's order in fact includes an express provision that the minor did not have any exceptional needs. Therefore, the order both considered and determined the issue (unlike the Angela M. court).

As a result, the minor could properly argue only that the present finding lacks substantial evidence (a claim he does not make), which would fail in the face of the probation department's reports and the concessions in the evaluation that the minor did not have any learning disability or impairment beyond the ADHD that his medication seemed to be remediating. We therefore reject this argument.

III

As noted, the minor originally argued that the juvenile court had abused its discretion in committing him to the Iowa facility, asserting the court had improperly refused to receive evidence in support of a placement with his great-uncle in Ohio. He has asked permission to abandon the argument, which we have granted.

IV

In its January 2010 supplemental memorandum to the court, the probation department included the latest calculation of the minor's custody credits throughout these proceedings. It showed two days in juvenile hall attributable to the original November 2008 petition, 38 days in juvenile hall and 62 days in the Youth Center attributable to the March 2009 supplemental petition, two days in juvenile hall attributable to the July 2009 violation of probation (along with three days in juvenile hall on the motion to modify his custody status from home supervision to Boys Ranch, and 31 days at Boys Ranch), and ongoing custody at juvenile hall attributable to the November 2009 violation of probation that began on November 23, 2009. The memorandum calculated the latter as 59 days, apparently as of a scheduled hearing date of January 21, 2010 (although that appears to be one day short and may reflect use of the November 24 date of the petition rather than the start of custody).

In the midst of her argument in favor of a commitment to the home of the great-uncle at the hearing on April 8, 2010, the minor's counsel asserted that the minor had spent a total of 452 days in ordinary forms of confinement (which included both home supervision and electronic monitoring), and these traditional approaches were "just not working."

After the court made its oral ruling, the "presenter" brought the court's attention to custody credits, stating the minor had accrued 135 days attributable to the November 2009 petition (although that total appears to be two days short). The minor's counsel stated that her calculation was 144 days; she began to calculate the prior Boys Ranch custody when the presenter interrupted to remind her that the minor had already been credited for those. The minor's counsel then acceded to the calculation of 135 days. The court's order reflects this figure.

Comparing apples and pomegranates, the minor cites these three different places in the record and asserts we must remand to reconcile the inconsistencies. To the contrary, the January 2010 preliminary calculation of the minor's latest custody was 59 days apparently as of January 21, with 197 days in total; the presenter calculated 135 days for only the latest custody as of the hearing on April 8. The amount of custody to which the minor's counsel rhetorically attested, on the other hand, was a total amount that included other commitments not qualifying for custody credits that were cited only to make the point that the minor needed a different type of commitment.

Consequently, a discrepancy warranting remand does not exist. We will, however, direct the juvenile court to correct its April 2010 order to reflect that the minor was entitled to two additional days of custody credit attributable to the November 2009 petition as of April 8, 2010 (in addition to any custody credit he accrued subsequently).

DISPOSITION

The judgment is affirmed. The juvenile court is directed to correct its April 2010 order to reflect that the minor was entitled to two additional days of custody credit attributable to the November 2009 petition as of April 8, 2010 (in addition to any custody credit he accrued subsequently).

We concur: ROBIE , J. MURRAY , J.


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