In re I.M.
Filed 1/22/14 In re I.M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE
DISTRICT
In re I.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and
Respondent,
v.
I.M.,
Defendant and Appellant.
F066477
(Super. Ct. No. 512867)
APPEAL
from a judgment of the Superior Court of
Stanislaus County. Nan Cohan Jacobs,
Judge.
Candice
L. Christensen, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, and Kathleen A. McKenna, Deputy Attorney General, for
Plaintiff and Respondent.
The
court continued appellant, I.M., as a ward of the court (Welf. & Inst.
Code, § 602),
name="_ftnref2" title="">[1] after he admitted allegations charging him with possession of a concealed
dirk or dagger (Pen. Code, § 21310).
On
appeal, appellant contends the court erred by ordering him into placement: 1)
without an adequate case plan; 2) without considering limiting his mother’s
him; and 3) without completing form JV-535.
We affirm.
FACTS
On
August 31, 2011, then 10-year-old appellant and four other male juveniles broke
into a home on Guthrie Avenue in Modesto.
On
January 7, 2012, an ongoing dispute between appellant’s family and a woman culminated
in appellant and his brother, N.M., breaking the windows of a car belonging to
the woman’s boyfriend.
On
February 9, 2012, appellant was arrested and admitted participating in the
Guthrie Avenue burglary and a second uncharged burglary.
On
February 14, 2012, the district attorney filed a petition charging appellant
with first degree burglary (Pen. Code, § 459).
On
March 6, 2012, appellant was released from custody on house arrest.
On
April 7, 2012, officers from the house arrest program conducted a home visit at
appellant’s residence. Appellant’s
mother told the officers that appellant did not take the house arrest program seriously
and would often leave without her permission.
On
May 21, 2012, the court issued a warrant
for appellant’s arrest after he failed to appear at a hearing on that
date.
On
June 6, 2012, appellant was arrested on the outstanding warrant.
On
July 19, 2012, appellant was released from custody.
On
July 30, 2012, the probation department filed a Dispositional
On
August 27, 2012, the court made appellant a ward of the court and placed him on
probation. The court also committed
appellant to juvenile hall for 100 days with credit for 79 days already served.
On
November 3, 2012, at approximately 1:48 a.m., Modesto police officers conducted
a traffic stop of a stolen vehicle driven by a 13-year-old male with then 12‑year-old
appellant and two other juveniles as passengers. Appellant initially gave a false name. He was also found to be in possession of a
sharpened tool with a homemade handle.
On
November 6, 2012, the district attorney filed a subsequent petition charging
appellant with vehicle theft (count 1/Veh. Code, § 10851, subd. (a)), receiving
stolen property (count 2/Pen. Code, § 496d, subd. (a)), and carrying a concealed
dirk or dagger (count 3).
On
November 21, 2012, the probation department filed a Dispositional Social
Study. The report contained much of the
same information as the earlier report and indicated that appellant’s father
was serving a prison sentence on a conviction for
Code, § 273.5, subd. (a)). Appellant’s mother
was on probation for possession for sale of a controlled substance. His brother, N.M., was declared a ward of the
court on June 15, 2011, based on his adjudication for first degree burglary and
was in custody pending a violation of probation hearing. Appellant reported that he last attended
school about two weeks earlier and that he was receiving failing grades. He also admitted using marijuana,
permission, and running away from home twice.
Appellant’s mother reported that appellant usually received failing
grades and that he was not currently attending school because he had been
expelled. However, she did not know the
reason for the expulsion. Although
appellant and his mother denied he was involved in gang activity or associated
with gang members, appellant committed his most recent offenses with Norteño
gang members and the earlier report indicates appellant admitted associating
with Norteño gang members.
The
report further indicated that appellant had 17 referrals to Child Protective
Services (CPS) between May 2004 and May 2012, and that allegations of general
neglect were substantiated with respect to three referrals including one on October
20, 2011, and one on February 7, 2012.
The report recommended supervision services in an effort to avoid the
need for out-of-home placement.
At
a hearing on November 21, 2012, appellant admitted the possession of a
concealed dirk or dagger offense in exchange for the dismissal of the two other
counts. Afterwards, based on the
February 7, 2012, referral to CPS, the juvenile court ordered the probation
department to prepare a section 241.1
or ward, was appropriate for appellant.
On
December 7, 2012, the probation department filed a section 241.1 Joint
Assessment Report, which indicated that the October 20, 2011, CPS referral
involved appellant’s father physically abusing appellant’s mother in front of a
seven-year-old child. Appellant’s father
was arrested on that date. The February
7, 2012, referral involved appellant’s mother not being able to control or
provide appropriate supervision for her children. Appellant’s mother accepted voluntary family
maintenance services as a result of this latter referral and had been receiving
services since February 17, 2012.
The
report reiterated the circumstances of appellant’s criminal history. It also indicated the family was moving to a
new home where appellant would have his own room, that appellant’s father had recently
been released from prison but was not allowed back into the family residence,
and that appellant’s mother was suffering from a brain tumor. The report recommended that appellant be
continued a ward of the court under the continued supervision of the probation
department. The report did not recommend
placement for appellant.
At
a hearing on December 11, 2012, the probation department filed the following
documents: a Minor and Family Assessment
form and a Case Plan that were originally filed on February 14, 2012, which had
updated comments and notes; and an Additional Case Plan and Information for
Placement form that was only partially completed.
Katherine Kincheloe, a social worker from the Community Services Agency,
informed the court that appellant’s family was making minimal progress with the
voluntary family maintenance services.
Kincheloe also advised the court that appellant’s mother reported she
had a brain tumor that required surgery and a second tumor that required
further examination. Appellant’s mother
also reported that she had five to six of her children and two grandchildren
living in her household.
The
court found that the status of ward would best serve appellant and stated it
was going to order appellant into placement.
It also continued the hearing two days to allow the probation department
to “prepare placement terms.†In explaining
its decision to appellant’s mother, the court stated, “After hearing from Ms.
Kincheloe and reviewing all of the
reports, I just don’t see that I have a choice given where [appellant] is
heading and what’s been going on with this family. We’ve tried.â€
(Italics added.)
On
December 13, 2012, the court set appellant’s maximum term of confinement at 80
months and ordered him into placement.
However, the probation department never provided a complete, updated
case plan, nor did the court order the department to prepare such a plan.
DISCUSSION
The Case Plan
Appellant Forfeited Issues Relating to the Case Plan Required by
Section 706.5 by his Failure to Object in the Juvenile Court
If
the probation officer recommends placement in foster care, the social study
“shall include a case plan, as described in Section 706.6.†(§ 706.5, subd. (a).) The case plan “shall either be attached to
the social study or incorporated as a separate section within the social
study.†(§ 706.6, 1st par.) If, however, “placement in foster care is not
recommended by the probation officer prior to disposition, but the court orders
foster care placement, the court shall order the probation officer to prepare a
case plan, as described in Section 706.6, within 30 days of the placement
order.†(§ 706.5, subd. (b).) Section 706.6 provides a detailed list of
information the case plan must provide, including, for example, the following: “an assessment of the minor’s and family’s
strengths and needs†and the “type of placement best equipped to meet those
needs†(§ 706.6, subd. (b)); “a description of the type of home or
institution in which the minor is to be placed†(§ 706.6, subd. (c));
“specific time-limited goals and related activities designed to enable the safe
return of the minor to his or her home†(§ 706.6, subd. (e)); and “the
projected date of completion of the case plan objectives and the date services
will be terminated†(§ 706.6, subd. (f)).
Here,
since the court ordered appellant into placement, it erred by not ordering the
probation department to prepare a complete, updated case plan within 30 days
for appellant. Appellant couches the
error in terms of the probation department failing to provide a complete,
updated case plan. He argues that
reversal is required because the Additional Case Plan filed on December 11,
2012, was missing much of the required information and this denied him his
right to due process. However, neither
appellant nor his attorney ever objected in the juvenile court to this case
plan or to the court’s failure to order the probation department to prepare a
complete, updated case plan within 30 days.
“It
is well established that procedural errors may not be raised at the appellate
level if they were not raised in the trial court level. ‘[E]ven constitutional rights, including
those of a minor in the area of juvenile court procedure, will ordinarily be [forfeited]
by silence, i.e., by their nonassertion.’â€
(In re Christopher S. (1992)
10 Cal.App.4th 1337, 1344.) “Any other
rule would ‘“‘permit a party to play fast and loose with the administration of
justice by deliberately standing by without making an objection of which he is
aware and thereby permitting the proceedings to go to a conclusion which he may
acquiesce in, if favorable, and which he may avoid, if not.’†[Citations.]’†(In re
Riva M. (1991) 235 Cal.App.3d 403, 412.)
In
the adult criminal context, “[i]t is settled that failure to object and make an
offer of proof at the sentencing hearing concerning alleged errors or omissions
in the probation report waives the claim on appeal.†(People
v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch).) And, in In
re Travis W. (2003) 107 Cal.App.4th 368 (Travis W.), the court applied the Welch waiver rule in a juvenile proceeding where the minor “fault[ed]
the probation officer’s report for ‘limited investigation’ and faulty
reasoning....†(Travis W., at p. 379.) Here,
as in Travis W., appellant challenges
the content of his additional case plan for the first time on appeal. We conclude, based on the foregoing
principles, that appellant forfeited any claim of error with respect to the
incomplete case plan provided by the probation department and/or to the court’s
failure to order the probation department to prepare a complete, updated case
plan.
Appellant was not Denied the Effective
Assistance of Counsel
Alternatively,
appellant contends he was denied the effective assistance of counsel by defense
counsel’s failure to preserve this issue on appeal by making an appropriate
objection.
“We
have previously explained that, ‘[i]n order to demonstrate ineffective
assistance of counsel, a defendant must first show counsel’s performance was “deficientâ€
because his “representation fell below an objective standard of reasonableness
... under prevailing professional norms.†[Citations.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof. [Citations.] Prejudice is shown when there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.†[Citations.]’†(In re
Avena (1996) 12 Cal.4th 694, 721.)
“[However,]
a court need not determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.... If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be
followed.†(Strickland v. Washington (1984) 466 U.S. 668, 697.)
Appellant
was only 11 years old when he committed a residential burglary with four other
males and he admitted to an officer that he was involved in a second uncharged
burglary. On January 7, 2012, appellant
and his brother broke the windows of a car belonging to the boyfriend of a
woman with whom appellant’s family had an ongoing dispute. On November 3, 2012, appellant was accompanied
by Norteño gang members when he was arrested in the early morning hours while
riding around in a stolen vehicle in possession of a concealed dirk or
dagger. Further, appellant was not
attending school, was failing, and was experimenting with marijuana. Appellant also would leave his residence
without permission, stayed out after his curfew, had a history of running away,
and did not abide by the court’s home arrest program.
Moreover,
appellant’s mother was unable to adequately supervise appellant. As recently as February 7, 2012, a referral
alleging her children were out of control and she was unable to supervise them
was found to be substantiated by CPS. Additionally,
her serious, ongoing medical problems virtually assured she would not be able
to supervise appellant, especially since her household consisted of up to six
of her children, including appellant and one brother who was also a ward of the
court, and two grandchildren.
seriousness of appellant’s conduct, his poor school attendance and performance,
and his mother’s inability to adequately supervise him, it is not reasonably
probable the court would have foregone placement for appellant even if an
objection by defense counsel had resulted in the probation department
submitting a complete, updated case plan.
Accordingly, we reject appellant’s ineffective assistance of counsel
claim.
Furthermore,
for essentially the same reasons, even if appellant’s claim was properly before
us, we would find appellant was not prejudiced by the probation department’s
failure to provide the court with a complete, updated case plan for appellant. (In re
Riva M., supra, 235 Cal.App.3d at
pp. 412-413 [“Because the issue is not one of constitutional dimension, the
question is whether there is a reasonable probability the outcome would have
differed in the absence of the procedural irregularityâ€].)
Appellant
contends the failure to provide a complete, updated case plan was prejudicial
because: 1) the court did not have current information on appellant’s grades
and school attendance, disciplinary history, physical and mental health, etc.;
and 2) appellant’s family had made substantial “life changes†including the
procurement of new housing. He also cites
In re Devin J. (1984) 155 Cal.App.3d
1096 (Devin J.) and
a complete, updated case plan requires reversal.
In
Devin J., before the minor was
committed to the Department of Juvenile Justice (DJJ) (formerly CYA), the
probation department provided the court with an evaluation and social study
prepared for the minor’s fitness hearing, but not a current social study
report. The Devin J. court found that because the fitness and the disposition
hearings served different purposes, “a social study prepared for the limited
purpose of a fitness hearing fails to comply with the requirement of a current
social study for a dispositional hearing.â€
(Devin J., at p. 1101.) Thus, it reversed the juvenile court’s
commitment order. (Id. at p. 1102.)
In
L.S., the juvenile court committed a
minor adjudicated for possession of cocaine base for sale (Health & Saf.
Code, § 11351.5) to the DJJ without a current probation report, although it
apparently had available a 19-month old report that was prepared for a previous
disposition hearing. In reversing the
court’s commitment order, this court noted that the preparation of a current
social study report is mandatory and it found that a “social study report
prepared 19 months earlier as a result of appellant’s [prior adjudication] does
not satisfy this requirement.†(
a current social study report, a
241.1 report, and a social study report from July 2012, as well as the
incomplete case plan. Collectively,
these documents provided the court with a wealth of current information on
appellant including the information noted earlier that appellant erroneously claims
was not before the court. Further, the
information provided by these documents was more than adequate for the court to
address the central issue in appellant’s case, whether or not to place him
outside the home. (Cf.
study harmless where requirement substantially complied with];
742, 755 [where the juvenile court “was aware of all underlying facts†at the
time of the dispositional hearing, the lack of a current probation report was
not reversible error].) Moreover,
appellant cites his family’s procurement of new housing as the only significant
change that occurred since a completed case plan was filed in February 2012 and
the court was aware of this change at least as of the December 11, 2012,
hearing. Thus, even if appellant’s claim
were properly before us, we would reject it because appellant has not shown how
he was prejudiced by the failure of the probation department to provide the
court with a complete, updated case plan for him.
The Alleged
Failure to Make Educational Findings
California Rules of Court, rule 5.651(b)(2) (rule 5.651(b)(2)) provides:
“At the
disposition hearing ..., 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; [¶] (i)
If the court finds the parent’s or guardian’s educational rights should not be
limited, the court must direct the parent to his or her rights and responsibilities
in regard to the child’s education as provided in rule 5.650(e) and (f); or [¶]
(ii) If the court finds the parent’s or guardian’s educational rights should be
limited, the court must determine who will hold the child’s educational rights.
The court must explain to the parent or guardian why the court is limiting his
or her educational rights and must direct the parent or guardian to the rights
and responsibilities of the education representative as provided in rule
5.650(e) and (f).â€
Appellant
contends the court erred by its failure to complete form JV-535, as required by
rule 5.651(b)(2), and by its failure to consider limiting his mother’s right to
make educational decisions for him.
Appellant
did not object to the court’s failure to complete form JV-535 or to the court’s
alleged failure to consider limiting his mother’s right to make educational
decisions. Thus, for the reasons
discussed in the previous section, we conclude appellant forfeited his right to
raise these issues on appeal. (
at p. 379.)
Alternatively,
appellant contends he was denied the effective assistance of counsel by defense
counsel’s failure to preserve these issues by objecting in the juvenile
court. However, appellant has again failed
to show he was prejudiced by defense counsel’s alleged deficient
representation. (Strickland v. Washington, supra,
466 U.S. at p. 697.)
“[I]t
is defendant’s burden on appeal to affirmatively demonstrate error—it will not
be presumed. [Citations.]†(People
v. White Eagle (1996) 48 Cal.App.4th 1511, 1523.) Accordingly, we will not presume that the
court failed to consider limiting the right of appellant’s mother to make
educational decisions for him because appellant does not cite any evidence in
the record that supports this contention.
Nevertheless,
we note appellant’s dispositional report did not recommend the court issue an
order limiting his mother’s right to make educational decisions for him. Nor did defense counsel or anyone else express
any doubt as to the ability of appellant’s mother to advocate for his
educational needs. Further, although
appellant’s mother was facing serious health issues, there is no evidence in
the record that suggests they affected her ability to make educational
decisions for appellant. Moreover, the
court’s placement order should allow appellant’s mother to focus more on
appellant’s educational needs because it relieved her of the stress involved in
supervising appellant on a daily basis.
Thus, even if the court did not consider limiting the right of
appellant’s mother to make educational decisions for him, we find the failure
to do so was harmless.
Nor
has appellant shown how he was prejudiced by the court’s failure to fill out
form JV-535. The main impediment to
appellant’s educational success was his lack of school attendance, which was
caused and/or exacerbated by his delinquent behavior, his poor choice of peer
associations, and his drug use. The
juvenile court clearly was aware of its duty to consider appellant’s educational
needs and it considered and addressed these needs, stressing the importance of
appellant’s school attendance, when it made the following order at appellant’s
disposition hearing:
“School
rule has changed. And it will be in an
attachment. You’re to attend school. Do not
have any unexcused absences or tardies.
Maintain passing grades in all graded classes. Comply with all school rules and regulations
concerning behavior. Do not leave school
during school hours, including the lunch period. And upon high school graduation or G.E.D.
you’re to continue your education and/or seek and maintain steady employment.†(Italics added.)
During
the disposition hearing, neither defense counsel nor appellant’s mother requested
any additional educational orders, testing, or evaluations. Further, the court’s disposition order addressed
many of the issues it was required to address by rule 5.651(b)(2) including the
underlying causes of appellant’s poor school performance. Besides specifically addressing appellant’s poor
school attendance, the court imposed drug, alcohol and gang conditions, and it
ordered appellant to participate with his parent or guardian in counseling
sessions approved of and as directed by his probation officer. Additionally, a placement form executed by
appellant’s probation officer on December 11, 2012, indicates appellant’s
placement would include family counseling, group and individual therapy, and
substance abuse treatment. It is clear
from the foregoing that the juvenile court adequately considered appellant’s
educational needs in ordering him into placement and that appellant suffered no
prejudice as a result of the court’s failure to formalize its educational
findings in form JV-535. Accordingly, we
reject appellant’s ineffective assistance of counsel claim.
DISPOSITION
The
judgment is affirmed.
Peña, J.
statutory references are to the Welfare and Institutions Code.
