In re J.M.
Filed 12/4/08 In re J.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.M., a Person Coming Under the Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. J.M., Defendant and Appellant. | E045024 (Super.Ct.No. J216303) OPINION |
APPEAL from the Superior Court of San Bernardino County. Miriam Morton, Temporary Judge (pursuant to Cal. Const., art. VI, 21.), and Harold T. Wilson, Jr., Judge. Affirmed.
Christopher Blake under appointment by the Court of Appeal for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting and Emily R. Hanks, Deputy Attorneys General for Plaintiff and Respondent.
J.M. (hereinafter also defendant) appeals from a judgment entered against him asserting that (1) the juvenile court abused its discretion in ordering that he enter foster care that might place him outside of his own community, and (2) the juvenile court failed to comply with the requirements of the Indian Child Welfare Act, 25 United States Code, section 1901 et seq. and related California legislation (ICWA). Specifically, he argues that Welfare and Institutions Code section 224.3[1]required the juvenile court to inquire whether he has any Indian heritage and its failure to do so requires reversal. We find that J.M.s first argument is not ripe for consideration on the record before us and decline to reverse the judgment on that ground. And, because the question has no bearing on the outcome of this appeal, we decline to consider whether the juvenile court was required to comply with the ICWA. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On July 31, 2007, a Welfare and Institutions Code section 602 petition was filed alleging that defendant, a minor, possessed a firearm in violation of Penal Code section 12101, subdivision (a)(1), and committed street terrorism in violation of Penal Code section 186.22, subdivision (a). The petition also alleged that defendants possession of a firearm was for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members in violation of Penal Code section 186.22, subdivision (b)(1).
On August 28, 2007, defendant admitted the allegation that he committed street terrorism, and the People dismissed the firearms possession charge and the related gang enhancement. The juvenile court found the charge to be a felony and the maximum period of confinement to be three years. Defendant was released to his mothers custody. On September 12, 2007, defendant was declared a ward of the court and was placed on probation.
On October 17, 2007, a second Welfare and Institutions Code section 602 petition was filed alleging defendant committed two counts of residential burglary (Pen. Code, 459; counts 1 & 3), one count of knowingly receiving a stolen motor vehicle (Pen. Code, 496d, subd. (a); count 2), and one count of receiving stolen property (Pen. Code, 496, subd. (a); count 4). The following day defendant admitted counts 3 and 4 and the People dismissed the remaining counts. The juvenile court found the offenses to be felonies and the maximum period of confinement to be seven years four months.
On November 27, 2007, the juvenile court continued defendant as a ward of the court. It ordered him placed in the custody of the probation officer pending placement in a foster care facility as determined by the probation department. A condition of probation was that defendant be placed in a safe setting, which 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 childs special needs and best interests. The juvenile court also ordered that defendant be screened for Glen Mills. This appeal was filed on January 29, 2008.
DISCUSSION
A. The Juvenile Courts Placement Decision Was Not an Abuse of Discretion
This court reviews a dispositional decision in a juvenile criminal action for an abuse of discretion. (In re Angela M. (2003) 111 Cal.App.4th 1392, 1396.) We are required to indulg[e] all reasonable inferences to support the juvenile courts decision. (Ibid.) It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the [juvenile] court, whose determination we reverse only if it has acted beyond the scope of reason. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.)
Appellant was an admitted member of the Hustler Squad Clique street gang. At the time he committed the burglary and receipt of stolen property he was on probation for street terrorism and was under the maximum level of supervision available for juvenile probationers. In a report filed October 17, 2007, defendants probation officer stated that, in his opinion, defendant needed constant supervision, and therefore [f]or the protection of society, he needs to be removed from the community and placed in an out of home placement where he can be monitored on a constant basis. At the November 27, 2007, disposition hearing, pursuant to its statutory authority (see 727, subd. (a)), the juvenile court followed the probation officers recommendation and ordered defendant placed in the custody of the probation officer, physical[ly] present in juvenile hall awaiting placement in [a] suitable foster care facility as determined by probation. This decision was within the juvenile courts statutory authority and was not unreasonable given defendants past criminal acts, lack of success while on probation, and the recommendation of his probation officer. We therefore hold that the juvenile court did not abuse its discretion in ordering defendant removed from his home and placed in a suitable foster care facility.
Defendant contends that the juvenile court abused its discretion by ordering that he be placed in a foster care facility in Pennsylvania, or by issuing an order that allows for a placement outside his community. He argues that he should be placed in a facility that is in close proximity to his family because it will promote his rehabilitation.
As indicated above, the juvenile court merely ordered that defendant be placed in a suitable foster care facility in the most appropriate setting available in close proximity to the parents home, but also in an environment best suited to meet defendants needs. It did not order that he be placed in Pennsylvania, but that he be screened for Glen Mills.
After the disposition, the juvenile court held additional hearings on December 11, 2007, and December 21, 2007. Both minute orders demonstrate that defendant was interviewed by the Glen Mills school on November 10, 2007, but that no placement decision had been reached because defendants mother objected to an out-of-state placement. The matter was referred to the Interagency Placement Council for review and continued to April 15, 2008. No further information concerning defendants placement is contained in the record before us.
As defendant had not been placed at the time this appeal was filed, his argument is premature. In order to be addressed by this court, an issue must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1722.) The issue of whether, and under what circumstances the juvenile court is permitted to order defendant placed in an out-of-state foster care facility is not ripe for this court to decide.
B. The Juvenile Courts Failure to Comply With the ICWA Has Not Been Shown to be Prejudicial
Defendant asserts that the trial court failed to comply with section 224.3, subdivision (a), which provides, [t]he court . . . and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care. There is no evidence in the record that the juvenile court or the probation department complied with this statute.
The People counter that in spite of the clear language of section 224.3, the ICWA does not apply to defendants delinquency proceeding because (1) the ICWA only applies when the court knows or has reason to know that a child is an Indian child (25 U.S.C., 1912); (2) the ICWA only applies to child custody proceedings, not delinquency proceedings (25 U.S.C., 1903; In re Enrique O. (2006) 137 Cal.App.4th 728, 732); and (3) section 224.3 only applies to delinquency cases when the rights of the parent or Indian custodian are implicated (25 U.S.C., 1921; In re Alejandro A. (2008) 160 Cal.App.4th 1343). The People also argue that if the juvenile court was required to comply with the ICWA in this case, defendant has failed to show that the error was prejudicial and therefore the judgment must be affirmed.
We conclude that we need not determine whether or not the trial court was required to comply with the ICWA in this case because resolution of this issue is not necessary to the determination of this appeal. Even if we were to assume that defendants arguments have merit, he has not demonstrated that he is entitled to relief. The ICWA expressly permits [s]tate or [f]ederal law [to] provide[] a higher standard of protection . . . than the rights provided under the ICWA. [Citation.] (In re S.B. (2005) 130 Cal.App.4th 1148, 1158; see also 25 U.S.C., 1921 [where state or federal law applicable to a child custody proceeding provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided by the ICWA court shall apply the state or federal standard].) However, any failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.] (In re S.B., supra, 130 Cal.App.4th at p. 1162.) We simply cannot disturb the juvenile courts disposition order without a showing that defendant was prejudiced by the error that he claims occurred. (Cal. Const., art. VI, 13.) Because J.M. has failed to even suggest that he has any Indian ancestry, he has failed to demonstrate the requisite prejudice. (In re N.E. (2008) 160 Cal.App.4th 766, 769-771.) Consequently, even if the ICWA does apply to juvenile delinquency proceedings, a question we do not here decide, any asserted error by the trial court must be held to have been harmless.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ MILLER
J.
We concur:
/s/ RAMIREZ
P. J.
/s/ RICHLI
J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
