In re A.L.

Filed 1/6/10 In re A.L. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Kern County. Louie L. Vega, Judge.

Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

This is an appeal from orders of the juvenile court. We will affirm the orders.

Facts and Procedural History

The minor, appellant A.L., pursuant to orders in a dependency proceeding, had lived in the same foster home from July of 2002 through April of 2008 except for a brief period in 2006. Although appellant was performing poorly in school, receiving a failing grade in all classes on an April 2008 report card, he apparently was not a behavior problem in the foster home or at school.

In May of 2008, appellant received a police referral for fighting; he completed an informal probation program. In December of 2008, appellant began openly to smoke marijuana, to fight at school, and to glamorize the gang lifestyle, according to his social worker. On December 3, 2008, appellant was under the influence of marijuana at school, was detained by a school security guard, and was arrested by the police. A few days later, appellant participated in an altercation with the same security guard, cursed school personnel, and again was arrested. After the altercations at school, appellant was transferred from his foster family to a group home in a different city.

On January 29, 2009, a Welfare and Institutions Code section 602 petition was filed on behalf of appellant. The petition alleged three misdemeanors: being under the influence of a controlled substance (Pen. Code,  647, subd. (f)), battery on a school employee (Pen. Code,  243.6), and public use of offensive words likely to cause an immediate violent reaction (Pen. Code,  415, subd. (3)). Appellant entered a denial of the petition.

Because appellant was a dependent of the court at the time the Welfare and Institutions Code section 602^[1]petition was filed, the probation department and the department of human services were required to file a joint report recommending dependency or wardship as the status that will serve the best interests of the minor and the protection of society. ( 241.1, subd. (a).) The joint assessment recommended wardship. The assessment contended that wardship would be best suited for th[e] rehabilitation of this minor because of the probation departments greater level of supervision, regular drug testing as a condition of probation, and the potential for confinement.

At a hearing on the joint assessment on March 12, 2009, appellants counsel argued that appellant should be continued as a dependent child. Counsel contended appellants behavior had deteriorated over a period of time due to insufficient supervision in the foster home. She said that appellant had shown significant improvement in his behavior while in his current group home placement. Counsel contended the services being provided to appellant were sufficient and effective; if theres no need to change [the level of services being provided], then why is there a need to make him a ward?

The court agreed with the joint assessment that appellant would benefit from the closer supervision that would be provided by the probation department if appellant were declared a ward. Appellant then admitted count one of the section 602 petition, violation of Penal Code section 647, subdivision (f). The courts determination that the matter should proceed under section 602 provides the first issue in this appeal.

At the disposition hearing on March 26, 2009, appellants counsel requested that the conditions of probation specifically establish visitation for appellant with his siblings and his former foster parents. The court declined to order visitation, but stated it would order that [sibling visitation] be considered by the probation department. The courts refusal to order visitation constitutes the second basis for this appeal.

The court declared appellant a ward of the court and placed him on formal probation; the court imposed conditions of probation. Appellant filed a timely notice of appeal.

Discussion

Appellant contends the order terminating dependent status and declaring him a ward of the court under section 602 was not supported by substantial evidence. He cites In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014, for the proposition that the juvenile courts decision is to be reviewed under the substantial evidence standard.

We disagree. The courts determination under section 241.1 clearly is to be reviewed for abuse of discretion. Section 241.1, subdivision (a) requires the court to determine which status [dependent or ward] is appropriate for the minor. While there must undoubtedly be a factual basis for the courts determination, the statutory determination is akin to a best interest of the child determination, which uniformly has been reviewed under the abuse of discretion standard. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1065 -1067 [discussing at length the relationship between the two standards of review].)

In the present case, the sufficiency of the evidence cannot seriously be questioned. The wardship determination was supported by appellants self-described addiction to marijuana, his misconduct at school, and his gang affiliation, all of which had grown more pronounced and disruptive in the months leading up to the filing of the section 602 petition. This evidence was wholly undisputed.

There were also claims, essentially offers of proof, that appellant was working on his problematic conduct and was doing better in the weeks since he had been removed from his foster family and placed in the more structured environment of the group home. But the issue was not the existence of either body of fact. The issue was what those facts said about the best interests of the minor and the protection of society ( 241.1, subd. (a)), an issue entrusted to the sound discretion of the juvenile court.

In re Marcus G., supra, 73 Cal.App.4th 1008, dealt with an entirely different question. Marcus G. was an appeal from an order of the dependency court terminating dependency jurisdiction. The appellate court concluded there was no evidence that the requirements of section 241.1 had been fulfilled. In the absence of the joint assessment required by section 241.1 (and assuming the dependency court even had jurisdiction to make the section 241.1 determination), there was insufficient evidence to support an exercise of discretion: The court was not presented with an assessment in light of the factors specified in section 241.1, e.g., the nature of the minors conduct, the minors prior out-of-control or delinquent behavior, his functioning at school, and his home environment. (In re Marcus G., supra, at p. 1015.) In essence, the social worker in Marcus G. unilaterally decided it was a waste of our resources for the child welfare department to provide services to a minor who was receiving services from the probation department. (Ibid.) While the appellate court agreed with that proposition, it held that this conclusion by the social worker did not provide substantial evidence to make a determination as to which of the relevant departments should continue to provide services so at to avoid the duplication of services. (Id. at p. 1014.)

In the present case, the joint assessment contained the necessary information. It provided an explanation for the conclusion that the greater structure available in the probation context would be more likely to result in the minors rehabilitation. The determination of the trial court was reasonable in light of all of the evidence before it, was in accord with the requirements of section 241.1, and was therefore not an abuse of discretion. (See In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

Appellant also contends the court abused its discretion in declining to order that appellant have visitation with his siblings and his former foster parents. Instead of granting the request, the juvenile court ordered that the probation officer consider visitation as part of the placement plan.

We note that appellants request did not pertain to visitation with parents as part of a potential reunification of the family. The considerations that informed the decision of the appellate court in In re James R. (2007) 153 Cal.App.4th 413, 442 (requiring a determination by the court concerning the nature and frequency of visitation with a delinquent minors parents), are not applicable to visitation with former foster parents and the minors siblings.

In the present case, appellant effectively acknowledged his younger brother was attempting to follow appellants lead into drug use and gang participation. Appellants attorney acknowledged that appellants placement in the foster home had been a significant source of the deterioration in his behavior. Under these circumstances, it was not unreasonable for the court to defer its own intervention into the visitation issue until the probation officer and the group home counselors had a greater opportunity to determine whether the requested visitation would be beneficial to appellants rehabilitation. The juvenile courts order did not foreclose further review of visitation at future postplacement hearings if appellant believed visitation permitted by the probation office turned out to be unduly restrictive. The court did not abuse its discretion.

Disposition

The orders of March 12, 2009, and March 26, 2009, are affirmed.

___________________________

VARTABEDIAN, Acting P. J.

WE CONCUR:

__________________________________

WISEMAN, J.

__________________________________

GOMES, J.

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^[1]All further section references are to the Welfare and Institutions Code unless otherwise indicated.