In re D.C.

Filed 2/19/10 In re D.C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I.INTRODUCTION

Appellant D.C. appeals a juvenile court order vacating his dependency status (Welf. & Inst. Code,  300[1]) and declaring him a ward ( 602) after the court found he committed a lewd act upon a child under the age of 14 (Pen. Code,  288, subd. (a)) and a forcible lewd act upon a child (Pen. Code,  288, subd. (b)(1)). The court ordered appellant removed from his guardian and placed in a court-approved home or institution. Appellant contends the case plan is inadequate and the juvenile court erred in failing to appoint an educational representative. We will affirm.

II.FACTUAL AND PROCEDURAL BACKGROUND

On October 6, 2008,[2] the Contra Costa County District Attorney filed a juvenile wardship petition, alleging that appellant, then 16 years old, committed a lewd act upon a child under the age of 14. ( 602; Pen. Code,  288, subd. (a).) On December 5, the petition was amended to add a second count, forcible lewd act upon a child. (Pen. Code,  288, subd. (b)(1).)

A contested jurisdictional hearing was held on January 6, 30, and February 10, 2009. Antioch police officer Jeong testified that, on October 2, 2008, he responded to the Child and Family Services (CFS) office where he spoke with D.F., appellants stepmother, guardian and caretaker. He also spoke with D.F.s daughter, 11 year-old M., and appellants sister, 12 year-old C. C. and M. shared a bedroom at D.F.s house.

M. was upset during the interview with Officer Jeong because she was afraid appellant might be removed from her mothers house. Jeong told her to be honest with him and tell him what she knew. M. told Jeong about an incident in which appellant came up behind C., pushed her down, pulled her pants down and tried to put his thing in her butt. She used the term thing to mean his penis.

Officer Jeong testified that it was difficult to obtain information from C. C. told him that appellant would pin her down and kiss her neck. On one occasion, appellant made her touch his penis by grabbing her hand and putting it on his penis. Officer Jeong asked C. if appellant ever touched her private area. She told him that appellant touched her cookie over her pants and sometimes under her pants. She used the term cookie to mean vagina. C. told Jeong that appellant put his finger in her cookie and that, in July or August, appellant put his penis in her cookie. There was also an incident in which she was in her room sitting on her bed, watching television, when appellant got on top of her, pulled his pants down, pulled her shirt up, pulled her pants down and tried to put his penis in her cookie. C. was able to block this attempt.

At the jurisdictional hearing, C. testified that she and appellant began living with their stepmother D.F. and their stepsister M. in June 2008. At some point after appellants birthday in July 2008, appellant touched C. in a way that made her uncomfortable. She was in the bedroom she shared with M. and they were watching TV. She was unable to describe what appellant did.

M. testified that she saw appellant touch C. in an inappropriate way. Sometimes appellant would come into the bedroom she shared with C. and would get on top of C., lying on top of her and pinning her to the bed. C. would struggle to get him off and sometimes appellant would kiss her neck. Appellant would not get up until C. screamed or he could hear D.F., at which point he would jump up and run to his room. M. would try to get appellant off of C. by pulling on his arms, but she could not move him. These incidents happened at night multiple times.

M. also testified that she saw appellant try to put his penis in C.s butt. This happened while M. and C. were in appellants room playing a game on the Play Station 2. Appellant was wearing boxer shorts and both girls were wearing pajamas. M. was playing the game, so she was not paying a lot of attention, but she observed appellant come up behind C. and throw her on his bed. C. struggled to get away and told appellant to leave her alone; appellant tried to pull down her pajama bottoms. M. could see appellants penis sticking out of the opening in his boxer shorts. M. said appellants penis touched C.s lower back, very close to her butt.

M. also testified that once during that summer, appellant pulled his pants down in front of M. and C. and exposed himself to them.

On February 10, 2009, the court sustained the petition as to both counts. The court ordered probation to provide a joint report with Social Services, pursuant to section 241.1.

A report and case plan were filed on March 13, 2009, recommending that dependency be vacated and that appellant be placed in an out-of-home sex offender program.

On March 13, 2009, the court vacated dependency, adjudged appellant a ward with no termination date, and ordered appellant removed from his guardian and placed in a court-approved home or institution.

A revised case plan was filed on March 16, 2009, prior to the March 24, 2009 review hearing.

On April 7, 2009, probation filed a report indicating that appellant had been accepted by Gateway Residential Programs.

On April 7, 2009, appellant filed a timely notice of appeal.

III.DISCUSSION

Appellant contends the dispositional order must be reversed because the case plan is inadequate. Specifically, appellant argues that the case plan contains insufficient information about appellants educational needs and otherwise fails to meet key statutory requirements. Appellant also contends the juvenile court erred in not appointing an educational representative for him.

We review the juvenile courts disposition orders for abuse of discretion. (In re Lorenza M. (1989) 212 Cal.App.3d 49, 53.) 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. [Citations.] 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. (Ibid.)

A. Proceedings in the Juvenile Court

At appellants October 7, 2008, detention hearing, the court ordered a mental health assessment. That October 17, 2008, assessment reported appellant appeared to have possible cognitive delays, and lacked insight into his intellectual, emotional and sexual development. The evaluator could not ascertain whether appellants molestation of C. was the result of underlying sexual deviance, or was symptomatic of any possible past abuse or exposure to sexual materials or behaviors. She recommended a sex offender evaluation and a specialized sexual offender program to reduce appellants risk of reoffending. She also recommended treatment to address[] his depression, impulsiveness, abandonment, unresolved trauma and grief ([related to] the recent death of his mother in 2007 and his reported physical abuse by the father) . . . . The evaluator recommended that he continue psychiatric care. Because of his special education status, she also recommended that appellants IEP (Individualized Education Plan) be updated. On October 21, the court ordered an updated IEP.

The petition was sustained on February 10, 2009.

The dispositional social study was prepared by February 26, 2009. Appended to that study was probations case plan reassessment, dated March 3.

On March 6, 2009, the court ordered a separate section 241.1 report to address whether appellant should remain a dependent or be declared a ward. Appellants counsel asked for a continuance, expressing concerns about the contents of the case plan, and indicating she was unaware if appellants dependency counsel knew that CFS and probation had recommended wardship.

At the March 13, 2009, dispositional hearing, the court indicated it was prepared to adopt the recommendations [and findings] in the [social study], which included: (1) termination of dependency and establishment of wardship; (2) placement in a court-approved facility; (3) that reasonable efforts [had been] made to prevent or eliminate the need for minors removal from the home; (4) the [c]ourt has reviewed the case plan and finds that placement continues to be appropriate and necessary; (5) [t]he probation department has complied with the case plan by making reasonable efforts to make it possible for the child to safely return home and complete whatever steps are necessary to finalize permanent placement . . .; and (6) the [l]ikely date for return home is set for March 3, 2010. Both appellants dependency counsel and delinquency counsel objected to the termination of dependency.

Appellants delinquency counsel listed a number of complaints about the March 3 case plan. Eventually, the court interrupted, stating, Im not able to keep up with all the requests that youre making. So some of them I may want to change the proposed case plan in accordance with the recommendation that youre making . . . [W]e should stop and go back so that I can make the notations and then I will have them as part of the Courts order . . . . The court then went over counsels recommendations and ordered changes to the case plan.

The court accepted the recommendations of probation as orally modified. It vacated dependency and established wardship. It ordered custody be given to the probation department for placement. The court indicated it had reviewed the case plan. I find that placement continues to be appropriate and necessary. However, as weve previously stated, the Court is requesting the probation department . . . update and modify the case plan based on the comments that were made in court today and to provide that updated case plan at the next hearing which will be the [section] 737 hearing. [] The Probation Department has complied with the plan by making reasonable efforts to make it possible for the child to safely return home and complete whatever steps are necessary to finalize permanent placement with the child.

The court set the anticipated date appellant could safely be returned home as March 3, 2010. The probation officer indicated appellant would be in placement for one year. The court set August 25, 2009, for a six-month permanent plan review hearing.

A revised case plan dated March 16, 2009, reflecting the courts March 13 oral modifications, was received by the court by the March 24, 2009, hearing. The court also noted it had received a report from probation that appellant had been referred to Gateway Residential Programs, but had not yet been accepted. Appellant did not object to the revised case plan or proposed placement.

A memorandum from the probation department, filed April 7, 2009, indicated Gateway had accepted appellant, but he had not yet been transported to the program. A second section 737 status review hearing was held that day. The reporters transcript of that hearing is not part of the record; the clerks transcript contains no note of any objection to the revised case plan or placement.

B. The Case Plan

The probation departments assessment indicated that appellants mother was deceased and his fathers whereabouts were unknown. His aunt D.F. was his temporary guardian. The report identified strengths of appellant and his family as appropriate housing; available family to work with probation; minor understands/acknowledges problems/issues; supportive relatives or friends; willing to participate in counseling/programs; and the fact that appellant had been a section 300 dependent in placement via CFS. The familys needs were identified as address victimization issues; anger management; develop appropriate peer relationships; improve behavior at home; improve community behavior; and mental health involvement. In addition, the report noted that appellant will need specialized sex offender treatment in a residential group home setting under the care and supervision of the Probation Department. Preplacement services required to return appellant safely home were identified as anger management counseling; counseling for physical/sexual abuse; intensive supervision and mental health counseling. The report stated that appellant was in need of placement and that the above services should be incorporated into his treatment plan for possible reunification upon completion of residential treatment.

The case plan stated that if efforts to reunify fail, the alternative was transitional living arrangement/foster care. Appellants two felony offenses and his need for specialized sex offender treatment in a licensed group home offering those services were identified as the circumstances surrounding his removal from D.F.s home and the need for placement. Services previously offered or provided to the family were anger management and mental health services. The services were beneficial; however, appellant engaged in additional problematic sex offender behavior; the causes and treatment had not yet been determined and implemented. His health and dental care providers were identified in the case plan, as were his prescribed medications. The report also stated that appellant would have a medical and dental examination within 30 days of placement.

Under school information/educational needs, appellants high school and grades were listed. The report indicated that he was a special education student, but the date of his last IEP was blank. The report also stated that no educational assessment/IEP was needed. The report stated that school records were attached to the case plan, but noted that [i]f the required health and education information is not in the case plan it can be located in the placement folder.

Appellants needs were determined to be 24-hour supervision, address victimization issues, anger management, completion of court ordered programs, develop appropriate decision making skills, individual counseling, medication assessment/adjustment, non-public school, on-going doctor/dentist appointments, regular physical activities, sex offender counseling, and victim awareness/restitution.

Because appellant was 16 years old, he was eligible for an independent living plan. The report stated that he would be given a transitional independent living plan once he is assessed at his placement and has a psychological evaluation. Only then can his specific independent living program be designed for his needs.

The most appropriate placement for appellant was determined to be a residential group home specializing in intensive sex offender therapy and which would also include the ability to dispense the medications he needs, therapy, independent living skills, a nurturing environment, an on-grounds school, a structured setting, and therapy for molestation victims and perpetrators. The placement would be out-of-county because there were no juvenile sex offender programs located in Contra Costa County.

The case plan service objectives and client responsibilities listed activities and services designed to assist in reunification, enable a safe return home, or emancipation. The probation officer was assigned the responsibilities of monitoring appellants behavior to ensure compliance with court orders; monthly visits for appellant with the placement provider; monthly review of appellants progress on his case plan to monitor compliance; arranging and identifying services to achieve the case plan goal; and arranging monthly visits for appellant with his guardian, D.F. Appellants service objectives were to comply with all orders of the court, obey all laws, complete his education, resolve issues of oppositional behavior, sexual acting out, anger management, and mental health issues, as well as to attend specialized sex offender treatment in a residential placement setting. The projected completion date for these objectives was March 3, 2010. Appellants assigned responsibilities were to attend school regularly and on-time, to participate in all classroom activities and complete all required school work, compose a letter of apology to the victim, refrain from use of all controlled substances, participate in anger management counseling, and enroll/participate/complete sexual offender treatment. The projected completion date for these activities was listed as March 3, 2010. In addition, appellant was also required to complete a psychiatric/psychological evaluation within 90 days of arrival in his placement.

C. The Adequacy of the Case Plan

Before a dispositional order is made for a minor who is determined to be a ward of the juvenile court, the probation department must prepare and the court must consider a social study of the minor, including a case plan containing details of the minors history, needs, and goals. (Welf. & Inst. Code,  706, 706.5, subd. (a), 706.6.) [R]elevant policies of juvenile court law require that the court consider the broadest range of information in determining how best to rehabilitate a minor and afford him adequate care. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1329.)

Section 706 provides that the court shall hear evidence on the question of the proper disposition to be made of the minor. The court shall receive in evidence the social study of the minor made by the probation officer and any other relevant and material evidence that may be offered . . . . In any judgment and order of disposition, the court shall state that the social study made by the probation officer has been read and that the social study and any statement has been considered by the court. Similarly, rule 5.785 of the California Rules of Court provides in part that [t]he probation officer must prepare a social study of the child, which must contain all matters relevant to disposition, including any parole status information, and a recommendation for disposition. . . . [] The court must receive in evidence and consider the social study and any relevant evidence offered by the petitioner, the child, or the parent or guardian. . . .

Section 706.5 provides in part that [a]t each status review hearing, the social study shall include, but not be limited to, an updated case plan as described in Section 706.6 and the following information: [] (1) The continuing necessity for and appropriateness of the placement. [] (2) The extent of the probation departments compliance with the case plan in making reasonable efforts to safely return the minor to the minors home or to complete whatever steps are necessary to finalize the permanent placement of the minor. (706.5, subd. (c).) California Rules of Court, rule 5.785(c), provides: If the probation officer believes that foster care placement is the most appropriate disposition for the child, the case plan must include all of the information required by section 706.6.

Section 706.6 provides a detailed list of the information the case plan must contain. Of the fifteen categories of information specified, appellant contends the following, by subsection of section 706.6, were erroneously left out of his case plan: (d) Specific time-limited goals and related activities designed to enable the safe return of the minor to his or her home, or in the event that return to his or her home is not possible, activities designed to result in permanent placement or emancipation. . . . [] (e) The projected date of completion of the case plan objectives and the date services will be terminated. [] (j) Health and education information about the minor, school records, . . . names and addresses of the minors health and educational providers; . . . assurances that the minors placement in foster care takes into account proximity to the school in which the minor was enrolled at the time of placement; . . . [] (n) A statement that the parent or legal guardian, and the minor have had an opportunity to participate in the development of the case plan, to review the case plan, to sign the case plan, and to receive a copy of the plan, or an explanation about why the parent, legal guardian, or minor was not able to participate or sign the case plan.

In addition to the several categories of information specified in section 706.6 that appellant contends the juvenile court erroneously failed to include in his case plan, appellant also contends the court failed to make specific findings regarding the completeness of the case plan, the evidence of the probation departments efforts and compliance with the case plan, and the participation of appellant and his guardian in the process of developing the case plan.

Respondent argues that appellant forfeited these claims regarding the adequacy of the case plan by failing to object on these grounds below. As stated above, appellant did not object to the revised case plan at the section 737 status review hearing on March 24, 2009, and there is no evidence of any objection at the second section 737 status review hearing on April 7, 2009. In general, a party is barred from raising on appeal any claim not raised in the trial court. 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, 411-412.) Forfeiture principles apply to juvenile dispositional hearings. (See In re Sheena K. (2007) 40 Cal.4th 875, 880-885; In re JosueS. (1999) 72 Cal.App.4th 168, 172-173; In re Khonsavanh S. (1998) 67 Cal.App.4th 532, 536-537; In re Abdirahman S. (1997) 58 Cal.App.4th 963, 971; In re Riva M., supra, 235 Cal.App.3d at pp. 411-412.) Courts have also ruled that the failure to object to the contents of an adult probation officers report or a delinquency dispositional social study forfeits appellate claims regarding the sufficiency of those reports. (See In re Travis W. (2003) 107 Cal.App.4th 368, 379; In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500, fn. 2, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2, 932, fn. 13; People v. Bloom (1983) 142 Cal.App.3d 310, 320.)

We agree with respondent that appellant has forfeited these issues for appeal. Appellant has filed no reply brief challenging respondents arguments on this point. Further, as in In re Riva M., supra, 235 Cal.App.3d at p. 412, the requirements of sections 706.6 and 727.2, and rules 5.785 and 5.810 are statutory and are not constitutionally compelled. Nor did the alleged errors involve[] the fundamental jurisdiction of the court to act. (In re Riva M., supra, 235 Cal.App.3d at p. 412; In re S.D. (2002) 99 Cal.App.4th 1068, 1080-1082.)

However, even assuming that appellant has not forfeited his complaints about the juvenile courts findings and the revised case plan, the issues he raises do not warrant reversal.

First, appellants contention that Rule 5.785, subdivision (c)(5),[3] of the California Rules of Court[4] required the juvenile court to make a specific finding that the case plan included all of the information required by section 706.6 has no merit. By its terms, the rule does not require a separate finding by the court that the case plan is complete.

Second, appellant complains that the court failed to reference in its written findings the evidence upon which it based its finding that the probation department made reasonable efforts and complied with the case plan. Although rule 5.810 provides that in making this determination, the court must reference, in its written findings, the probation officers report and any other evidence relied on in reaching its decision (rule 5.810(a)(4)), it is apparent from the transcript of the hearing that the court relied on the case study and the case plan in making its findings. Moreover, in considering the statutory requirement that the court shall consider the safety of the minor and make findings and orders which determine . . . [] . . . [t]he extent of the probation departments compliance with the case plan in making reasonable efforts to safely return the minor to the minors home or to complete whatever steps are necessary to finalize the permanent placement of the minor (section 727.2, subd. (e)), it bears repeating that, at this early stage in the proceedings, no placement had yet been found for appellant.

Next appellant contends that the court failed to make a finding whether the probation officer solicited and integrated into the case plan the input of appellant and his family as required by rule 5.785(c)(2). Neither appellant nor his guardian signed the case plan. Although no input from appellant or D.F. is expressly included in the revised case plan, the case study indicates that the probation officer interviewed appellant on multiple occasions. The probation officer described appellant as initially quite hesitant, but more forthcoming on subsequent occasions. It can certainly be inferred that the probation officer incorporated into the recommendations in the case plan appellants admissions regarding his sexual misconduct (e.g., that it involved both C. and M. and that he used condoms during the incidents, evidencing that he planned such conduct and at least attempted penetration), as well as appellants acknowledgement that he had anger issues and at times would lose control of his behavior. The social study also includes information provided by appellants guardian, D.F. She was aware that appellant had anger issues, but stated that he was not aggressive or inappropriate in his general behavior. In addition, she did not believe a commitment to DJJ would be appropriate as [appellant] is too immature, unsophisticated, and would be easily victimized in that setting. She feels group home placement in a sex offender treatment program would be in [appellants] best interests as he is not a threat to the general community, is not a run away risk, and has done well in previous placement settings. The revised case plan indicated that a copy of the plan was not given to a parent because of [u]navailability.

Appellants arguments regarding section 706.6 fare no better. Although the revised case plan did not include all of the information required by section 706.6, it did contain much of the information required by statute in order for the court to make an informed placement of appellant and indicated that other information was available in other parts of appellants file. As for the information required by particular subdivisions of section 706.6 that appellant contends was omitted, the juvenile court had ample information for making its findings and orders at the dispositional hearing.

Appellant faults the revised case plan for failing to contain specific time-limited goals and related activities designed to result in the plans end goal of emancipation. ( 706.6, subd. (d).) However, the probation report indicated that the goal was for appellant to return home by March 2010. The probation officer who prepared the case plan also indicated: Minor will be given transitional independent living plan once he is assessed at his placement and has a psychological evaluation. Only then can his specific independent living program be designed for his needs. At the time, appellants placement had not yet been established. The probation officers setting of goals and related activities for one year, such as for appellant to complete his education, and to resolve issues of oppositional behavior, sexual acting out, anger management, and mental health issues, was reasonable in light of appellants well-documented circumstances as described in the case study and case assessment.

Appellant also contends the revised case plan contains minimal educational information, no school records, and only abbreviated information about his IEP. (See 706.6, subd. (j).) The revised case plan indicated that appellant was a special education student, that a new IEP was not needed and that appellants school records were attached or could be located in the placement folder. The case study provided additional information, i.e., at his last school he was a Special Resources student and while at school in juvenile hall he passed both components of the California High School Exit Exam. This constituted substantial compliance with the statutory requirement inasmuch as appellant was still awaiting placement at the time the revised case plan was prepared.

Appellant also contends that the juvenile court failed to consider the proximity of any proposed placement to his last school and that the probation officer was required, but failed, to solicit comments from the appropriate local education agency prior to completion of the social study. However, again, appellants placement had not yet been determined. Moreover, the only residential juvenile sex offender programs were located outside of appellants home county, and there was no likelihood that the court would order appellant placed anywhere but just such a specialized sex offender program that could also address his other needs.

As for appellants complaint that the record [does not] show whether or not the court reported appellants special educational needs to the placement, as required by Education Code section 56156, at the time of the revised case plan and the dispositional hearing, no placement had yet been established for appellant. According to the record, those educational records were in the placement folder, where a prospective placement could review them to ascertain appellants educational needs.

D. Appointment of an Educational Representative

Appellant contends that the court was required to consider whether it was necessary to limit his guardians right to make educational decisions for him and to appoint a responsible adult as his educational representative pursuant to rule 5.790(f)(5), and rule 5.650(b) and (c). Based on the lack of any discussion in the case plan of whether the guardians right to make educational decisions for appellant should be limited, appellant suggests that the court appears to have been unaware of its discretion to limit the guardians right and appoint another adult. In other words, appellant would have us presume from the silence that the court either was unaware of or failed to perform its duty to consider whether to appoint a different educational representative.

But such a presumption would . . . require the reviewing court to ignore a cardinal principle of appellate review: A   judgment or order of the lower court is presumedcorrect [, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.  [Citation.] As this court has stated, we apply the general rule that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]  (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) This rule derives in part from the presumption of Evidence Code section 664 that official duty has been regularly performed,  and thus when a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. (Ibid.) (In reJulian R. (2009) 47 Cal.4th 487, 498-499.)

The presumption that the court considered whether to limit D.F.s right to make educational decisions for appellant is appropriate here where both the original case plan and the revised case plan indicated that D.F.s right to make decisions should not be limited. The court indicated that it read the case study and it went through the case plan page by page at the dispositional hearing. There is no indication in the record that D.F. was unable or unwilling to make educational decisions for appellant or that her ability to do so had been compromised. Thus, we find no error.

IV.DISPOSITION

The order appealed from is affirmed.

_________________________

Haerle, J.

We concur:

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Kline, P.J.

_________________________

Richman, J.

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[1] All further undesignated statutory references are to the Welfare and Institutions Code.

[2] Except as otherwise stated, all further dates refer to the year 2008.

[3] Rule 5.785(c)(5), of the California Rules of Court provides: If the probation officer believes that foster care placement is the most appropriate disposition for the child, the case plan must include all of the information required by section 706.6.

[4] All further unspecified references to rules are to the California Rules of Court.