In re L.M. CA5

Filed 5/27/16 In re L.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 L.M., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F070991
Plaintiff and Respondent, (Tulare Super. Ct. No. JJD065084)
v.
OPINION
L.M.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Arthur Lee Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, William K. Kim and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Gomes, Acting P.J., Kane, J. and Poochigian, J.
Appellant L.M., a minor, appeals from the juvenile court’s dispositional order
committing her to the California Department of Corrections and Rehabilitation, Division
of Juvenile Justice (DJJ) for a violation of her probation under Welfare and Institutions
Code sections 602, subdivision (a), and 777, subdivision (a).1 Specifically, appellant
contends there was insufficient evidence presented to conclude appellant would benefit
from the placement and that less restrictive alternatives would be ineffective. For the
reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant’s Current Petition, Subsequent Probation Violation Notices, and
Dispositions
Appellant is a child with a long history before the juvenile court in Tulare County.
Appellant’s current commitment to the DJJ follows multiple notices of probation
violations tied to a sustained petition previously filed on November 5, 2013.
On October 25, 2013, while committed to the Tulare County Probation
Department’s long-term care program,2 appellant attacked another minor. As a result of
that attack, a petition pursuant to section 602, subdivision (a), was filed, alleging
appellant committed the crime of assault by means of force likely to produce great bodily
injury. Appellant admitted the charge in the petition and was recommitted to the long-
term care program.
In the long-term care program appellant participated in a drug and alcohol
treatment program, was provided with weekly mental health sessions, although she
regularly refused to participate, and was offered family counseling, although her parents
only attended one session. Appellant was proceeding well at a status hearing on May 28,
1 All statutory references are to the Welfare and Institutions Code unless otherwise
noted.
2 The long-term care program is identified in court records as the “Tulare County
Youth Correctional Center Unit (YCCU) Program.” The circumstances leading to this
commitment are detailed below.
2.
2014, and a second hearing was set for August 20, 2014. Shortly before that hearing,
however, appellant again attacked an individual.
As a result, a notice of violation of probation was filed, which appellant admitted.
The probation officer’s report noted that appellant had been engaged in anger
management counseling, had begun taking Lexapro for her depression, and was seeing a
counselor once a week. However, appellant had been regularly refusing to take her
medication or participate in counseling in the recent past. Appellant did not feel she was
ready to return home and was concerned she would run away if placed in a group home.
The juvenile court ordered appellant moved from the long-term program to the Youth
Facility program,3 ordered her to continue attending individual and family counseling,
and set a three-month review hearing for December 11, 2014.
Appellant performed well in the program prior to the December 11, 2014 hearing,
having only three incidents with others detailed in her probation report. She attended her
individual and family counseling sessions, and was recommended for transition to the
Aftercare Program. The juvenile court recognized appellant’s progress, granted release
to the Aftercare Program, placed appellant on electronic monitoring, and ordered her to
continue her counseling.
Two days later, appellant cut off her electronic monitor, attended a party where
she consumed alcohol, marijuana, and cocaine, and associated with known gang
members. Appellant was arrested on December 14, 2014. A notice of violation of
probation was filed on January 7, 2015, and appellant admitted the violation on January
8, 2015. The current appeal is taken from the disposition of this violation.
3 The Youth Facility program is identified in court records as the “Tulare County
Youth Facility.” It appears to be regularly referred to as the “Mid-Term Program.”
3.
Appellant’s Prior Petitions, Probation Violation Notices, and Dispositions
Prior to the October 2013 incident leading to appellant’s current petition, appellant
had been a continuous ward of the court since 2011. Appellant came before the court at
the age of 13, under a petition filed November 22, 2010. That petition alleged appellant
had committed a battery on school, park, or hospital property. In the course of these
proceedings, the court was made aware that appellant had recently been released from a
mental health hospital and was undergoing extensive mental health counseling for issues
arising from two prior sexual assaults. She was also taking medication for depression.
A first amended petition was filed on March 1, 2011, adding an additional
allegation of vandalism. Appellant was arraigned and denied the charges on March 2,
2011. Recognizing appellant’s major mental health needs, the juvenile court ordered a
full psychological evaluation, and required appellant to see mental health professionals
on a regular basis. An assessment following this order identified severe mental issues,
including suicidal tendencies, but noted appellant was receiving and would continue to
receive treatment through therapy and medication. At a status hearing on March 18,
2011, the juvenile court recognized that mental health care was appellant’s most
important issue, confirmed appellant had been seeing a counselor, and confirmed
appellant had been experiencing progress due to her medication.
Appellant ultimately admitted to the charges in the first amended petition on
March 22, 2011. Appellant was adjudged a ward of the court on April 7, 2011, and
placed with her mother. The juvenile court specifically ordered that her individual and
family therapy include treatment based on her psychological evaluation, and appellant
was placed on electronic monitoring.
In early May 2011, appellant removed her electronic monitor and ran away from
home twice in a two-day period. A notice of violation of probation was filed, which
appellant admitted. At the notice hearing, appellant’s mother noted that appellant had
4.
ceased taking her medication and threatened suicide shortly before absconding. As a
result, the juvenile court ordered another mental health review.
Around this time, appellant became pregnant. Appellant’s medication was ceased,
due to her pregnancy, although she continued to receive individual therapy. Although the
juvenile court had concerns about home placement, on August 1, 2011, appellant was
released to the care of her mother with wrap around services in place. Although she
remained off her medication, appellant continued counseling and was considered to be
doing well through her May 3, 2012 status hearing.
In August 2012, a second notice of violation of probation was filed, alleging that
appellant left her residence on July 26, 2012, and did not return until July 28, 2012.
Appellant admitted to the violation, and the probation report indicated that appellant had
been drinking and engaging in inappropriate sexual conduct during the month of July
2012. Recognizing services to keep appellant placed at home had failed, the juvenile
court placed appellant in foster care. Additional counseling was ordered, and it was
noted that appellant had been refusing to take her prescribed medication since the birth of
her child.
Appellant was ultimately placed at the Promesa Group Home, with her new
daughter, on September 13, 2012. Prior to placement, appellant continued her counseling
but was not given medication. After placement, appellant attended individual counseling
weekly, group therapy twice a week, and was placed back on Zoloft.
On December 31, 2012, a third notice of violation of probation was filed, alleging
that appellant absconded from the group home, failed to obey her caregiver, and failed to
comply with group home rules. Appellant admitted the violation. As a result, appellant
was removed from the group home, where reports showed she was not willing to
participate in her counseling and treatment, and placed in the Tulare County Probation
5.
Department’s short-term program.4 Family counseling was added to her probation
requirements.
Appellant successfully completed the short-term program, including attending her
mental health sessions despite her mother’s failure to attend family counseling, and on
April 10, 2013, was ordered to return to a group home placement.
That same day, appellant attacked an individual while detained in the Tulare
County Juvenile Hall. A second petition under section 602, subdivision (a) was filed,
under which appellant admitted to the crime of battery. In addition, appellant was
provided with and admitted to a fourth notice of violation of probation for participating in
gang related activity, possessing letters with gang related writing, using profanity towards
staff, and creating a unit disturbance by kicking her door and being involved in a physical
altercation on April 9, 2013. Appellant admitted at her hearing on these matters that she
had voluntarily ceased taking her medication. On May 7, 2013, appellant was again
committed to the short-term program.
While appellant was proceeding on these issues, a third petition under section 602,
subdivision (a), was being prepared. This third petition was filed on May 9, 2013, and
alleged appellant had committed an assault and battery on April 30, 2013, with the
special allegation that it was committed for the benefit of, at the direction of, and in
association with a criminal street gang. At her pretrial hearing on the third petition,
appellant confirmed she had not been taking her medication and admitted the charges,
including the gang enhancement, contingent upon a Deferred Entry of Judgment (DEJ).
The juvenile court, however, did not find appellant suitable for DEJ. Despite this
ruling, appellant reconfirmed her prior admissions. Disposition was set for one month
out, to allow appellant an opportunity to show she could follow the rules without
4 The short-term program is identified in court records as the “Tulare County Youth
Treatment Center Unit (YTCU) Program.”
6.
incident. Appellant could not, although she did begin taking her medication again. As a
result, she was committed to the Youth Facility program.
While in the Youth Facility program, appellant received her fifth notice of
violation of probation, alleging a multitude of violations, such as disrespecting staff,
disruptive behavior, profanity toward staff, flooding her cell, assault on staff, intimidation
of others, and refusal to participate in the program. Appellant denied the allegations, but
the juvenile court found them to be true beyond a reasonable doubt after a hearing on
September 19, 2013. Evidence from the hearing showed appellant was not taking her
medication on a daily basis. However, because it was unclear whether it was procedures
at the facility or appellant’s willful choice that was causing the failure, the juvenile court
ordered that medication be provided at a specified time and appellant’s conduct
documented to ensure it was taken. Appellant was then committed to the long-term
program.5
Appellant’s Commitment to the DJJ
As explained above, appellant’s next violation, resulting in her fourth petition
under section 602, subdivision (a), occurred on October 25, 2013, and, along with her
sixth and seventh notices of violation of probation, led to the disposition appellant now
contests. In that disposition, appellant was committed to the DJJ with a maximum term
of five years six months, less 949 days of credit for time served.
In pronouncing appellant’s commitment to the DJJ, the juvenile court addressed
appellant directly. The juvenile court explained, “with your behavior, you are not giving
me a lot of choices. I have given you every chance I could to try to get you on track.”
Continuing this line of thought, the juvenile court later said: “We’ve tried to give you as
5 Although the oral pronouncement placed appellant in the long-term program, the
signed order placed appellant in the Youth Facility as opposed to the YCCU program.
Later summaries show appellant as placed consistent with the oral pronouncement, in the
YCCU program.
7.
many tools to [put yourself in the right direction], and it is just not working. It tells me
you need something different and something more. That’s why you are going to DJJ . . . .
I’m going to use every tool I have and DJJ is the last tool I have to help you. So that’s
why I’m going to send you to DJJ, because it is the last chance I have.”
In addition, the juvenile court discussed the DJJ commitment generally, saying:
“I don’t see DJJ as a situation where it is just like well, we are just going to throw you
away. DJJ has a lot of really good programs, and a lot of kids exactly in the same
position you are in. Kids that have not done well in local reasons [sic] for whatever
reason. [¶] Everybody is different. They all have different reasons. But DJJ has a lot
more resources and a lot more programs than I have here to help you. They have a lot
more things that can get you on track. They have good job training programs. They have
good programs that can help you get on a positive track.”
This timely appeal followed.
DISCUSSION
Appellant contends it was an abuse of discretion to commit her to the DJJ.
Specifically, relying heavily on her mental health issues, appellant alleges there was
insufficient evidence before the juvenile court to conclude that less restrictive alternatives
to the DJJ would have been ineffective. Appellant also argues insufficient evidence
shows any benefit to being sent to the DJJ.
Standard of Review and Applicable Law
“We review a juvenile court’s commitment decision for abuse of discretion,
indulging all reasonable inferences to support its decision.” (In re Antoine D. (2006) 137
Cal. App. 4th 1314, 1320.)
Commitment to the DJJ will be upheld “where the evidence demonstrates a
probable benefit to the minor from the commitment and less restrictive alternatives would
be ineffective or inappropriate.” (In re M.S. (2009) 174 Cal. App. 4th 1241, 1250.) “ ‘ “In
determining whether there was substantial evidence to support the commitment, we must
8.
examine the record presented at the disposition hearing in light of the purposes of the
Juvenile Court Law.” ’ ” (In re Oscar A. (2013) 217 Cal. App. 4th 750, 756.)
“One of the primary objectives of juvenile court law is rehabilitation, and the
statutory scheme contemplates a progressively more restrictive and punitive series of
dispositions starting with home placement under supervision, and progressing to foster
home placement, placement in a local treatment facility, and finally placement at the
DJJ.” (In re M.S., supra, 174 Cal.App.4th at p. 1250.) In following the statutory scheme,
“the court has broad discretion to choose probation and/or various forms of custodial
confinement in order to hold juveniles accountable for their behavior, and to protect the
public.” (In re Eddie M. (2003) 31 Cal. 4th 480, 507.)
The Juvenile Court Did Not Abuse its Discretion
Our review of the record before the juvenile court shows no abuse of discretion
occurred when appellant was committed to the DJJ. The juvenile court explained its
belief that less restrictive alternatives would not be effective by noting appellant had been
through all of the programs available at the local level, but had failed to improve in a
meaningful way. Substantial evidence supports this conclusion. As the facts above
show, appellant had been provided with home monitoring, foster care placement, and
multiple local services, including stints in the short-, mid-, and long-term programs
offered by Tulare County. While appellant had stretches where she was able to generally
comply with the terms imposed on her, most notably during her pregnancy, when
presented with opportunities to have her supervision lessened she engaged in increasingly
violent conduct, culminating in the admitted charge of assault with force likely to cause
great bodily injury and ultimately the decision to cut off her electronic monitor, rejoin her
gang friends, and partake in alcohol, marijuana, and cocaine. This repeated pattern of
behavior was sufficient evidence for the court to conclude that less restrictive alternatives
to DJJ would be ineffective.
9.
We are not convinced by appellant’s claim that the trial court failed to properly
consider appellant’s mental health needs in the context of less restrictive placements.
The record is replete with explicit references to appellant’s mental health needs. Indeed,
the juvenile court recognized early on that mental health care was appellant’s top need,
and even in the most recent commitments made specific orders designed to ensure
appellant was taking her medication and receiving both individual and family counseling.
The juvenile court’s explanation for committing appellant to the DJJ includes a
recognition that all of these services had failed, and that a more secure setting was needed
to give them, and the other services provided, an opportunity to take. While it is true that
the juvenile court did not identify and specifically reference individual mental health
placements which might have been available as an alternative to the DJJ commitment, it
is equally true that appellant did not identify the placements noted in this appeal to the
juvenile court and, thus, cannot complain that such evidence was not explicitly
considered. (In re Joseph H. (2015) 237 Cal. App. 4th 517, 544.) Ultimately, the question
is not whether particular services could be offered in a less restrictive setting—we know
from appellant’s extensive receipt of mental health services from Tulare County that they
can—but whether a less restrictive placement would be ineffective or inappropriate. (In
re M.S., supra, 174 Cal.App.4th at p. 1250.) The juvenile court did not abuse its
discretion in concluding less restrictive alternatives would be ineffective.6
6 Appellant’s reliance on In re Jorge Q. (1997) 54 Cal. App. 4th 223, 232, for the
proposition that “ ‘a complete failure in rehabilitating the minor’ ” must be shown to
warrant a DJJ commitment is misplaced. In re Jorge Q. relies on a line of cases derived
from the former version of section 777, in place before Proposition 21 passed in March
2000, which expressly required evidence “ ‘sufficient to support the conclusion that the
previous disposition has not been effective in the rehabilitation or protection of the
minor.’ ” (Former Welf. & Inst. Code, § 777, subd. (a), added by Stats. 1989, ch. 1117,
§ 18.) Proposition 21 removed this requirement, among others. (See In re Melvin J.
(2000) 81 Cal. App. 4th 742, 756-757, disapproved on another ground in John L. v.
Superior Court (2004) 33 Cal. 4th 158, 181 fn. 7.)
10.
Likewise, we find substantial evidence supports the juvenile court’s determination
that appellant would benefit from commitment to the DJJ. The juvenile court explained
the benefits it saw in the DJJ commitment, noting “DJJ has a lot more resources and a lot
more programs than I have here to help you. They have a lot more things that can get
you on track. They have good job training programs. They have good programs that can
help you get on a positive track.” In light of appellant’s history with the local programs,
the juvenile court’s recognition that the programs had not been successful, and the court’s
view of the quality of the DJJ programs available, we see no error in the juvenile court’s
analysis. As explained in In re Jonathan T. (2008) 166 Cal. App. 4th 474, 486, “[a]
juvenile court must determine if the record supports a finding that it is probable the
minor will benefit from being committed to DJJ. [Citation.] In the instant case, we infer
the juvenile court found it was probable minor would benefit from being committed to
DJJ, because it anticipated minor’s needs would be addressed by programs offered at
DJJ. There is no requirement that the court find exactly how a minor will benefit from
being committed to DJJ. The court is only required to find if it is probable a minor will
benefit from being committed, and the court did so in this case.”
DISPOSITION
The judgment is affirmed.
11.