In re Jerome D.

















Filed 2/7/13 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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.













IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)






>

In re JEROME D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. JEROME D., Defendant and Appellant.	C065223 (Super. Ct. No. JV128685) OPINION ON TRANSFER

Minor
Jerome D.href="#_ftn1" name="_ftnref1" title="">[1]
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, § 602href="#_ftn2" name="_ftnref2" title="">[2].) 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,href="#_ftn3" name="_ftnref3" title="">[3]
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.)href="#_ftn4"
name="_ftnref4" title="">[4]

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),href="#_ftn5" name="_ftnref5" title="">[5]
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.”href="#_ftn6" name="_ftnref6" title="">[6] (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).







BLEASE , Acting
P. J.





We concur:





ROBIE , J.





MURRAY , J.