Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ116045 Robert J. McIntyre, Judge.
Cindi B. Mishkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Beauford T. Miller, Jr., Deputy County Counsel, for Respondent Riverside County Probation Department.
No appearance for Respondents T.C. and C.C.
OPINION
RICHLI Acting P.J.
Minor P.C. appeals the denial of a motion to preclude billing and reimbursement of the cost of Minor’s custody. It had been previously ordered pursuant to Welfare and Institutions Code section 903 that “parents/minor” should pay the cost of custody. Minor claims that neither he nor his parents should be held responsible for the cost of his custody because it violated his right to a free appropriate public education since he was subject to an individualized education plan (IEP) while he was in custody.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Minor and his parents never appealed the original judgment and order at the time it was made to impose the payment under section 903. The subsequent denial of their motion to preclude billing and reimbursement of the cost of minor’s custody was not a subsequent order or judgment that was appealable and could properly be denied under sections 775 and 778. As such, we affirm the juvenile court’s denial of Minor’s motion to preclude billing and reimbursement of the cost of Minor’s custody.
I
PROCEDURAL AND FACTUAL BACKGROUND
Minor had a long history of emotional problems and had been diagnosed with bipolar disorder. Minor’s parents T.C. (Father) and C.C. (Mother) (collectively, Parents) were forced to put Minor in a private institution called Leroy Haynes Boys Home in Los Angeles County.
While at the home, Minor and some of the other boys set fire to the school office. Minor was charged in Los Angeles County with arson (Pen. Code, § 451, subdivision (c)) and second degree commercial burglary (Pen. Code, § 459).
At his detention hearing on February 27, 2008, held in Los Angeles County, Minor admitted to the burglary charge, and the arson charge was dismissed. Parents were asked if Minor could return home, but Father stated that was “not an option.” Since Parents lived in Riverside County, the case was transferred to the Riverside County juvenile court.
Minor was transferred to Riverside County juvenile hall on March 6, 2008. At the detention hearing in Riverside County, Minor was ordered to remain in custody, and a psychological examination was ordered.
The matter was continued from April 14, 2008, to April 28, 2008, at Minor’s request as he was scheduled for an updated IEP, which Minor hoped would lead to services under Government Code section 7576 for him.
According to an updated probation report, Minor’s IEP had been conducted, and Minor was determined to be emotionally disturbed and in need of special education classes. Minor needed a structured and consistent environment in order to learn. The recommendation was consistent with a prior IEP done on August 2, 2007, which had recommended Minor’s placement at the Le Roy Haynes School.
On April 20, 2010, Minor filed a request for judicial notice of the completed IEP reports. Although they were not introduced below, they were referred to in the probation reports and are relevant here merely to confirm the dates they were prepared. We therefore grant the request for judicial notice.
Parents requested that Minor’s placement be recommended by a professional because they did not feel they could appropriately choose a proper placement. In order to complete an evaluation pursuant to Government Code section 7576, the matter was continued for 30 days.
On May 19, 2008, another petition was filed against Minor and charged him with committing battery upon another minor while at juvenile hall. Minor admitted he committed the battery.
The original petition and second petition were continued several times in order for the Government Code section 7576 evaluation to be completed.
On August 12, 2008, Minor was adjudged a ward of the court under the first and second petitions and his care and custody were placed with the probation department. Minor was to be put in an appropriate placement facility under Government Code section 7576. The juvenile court adopted the recommendations of the probation department. One of those conditions was that “[m]aintenance to be paid by Riverside County at the established rate and the county be authorized to collect reimbursement per Section 903, et seq. of the Welfare and Institution[s] Code in the amount and manner to be determined by the Court Financial Services Division....” It was also adopted that “Parent(s)/minor are to cooperate with Court Financial Services Division regarding all monetary matter[s]....” No appeal was taken from the disposition.
Minor was placed at Olive Crest Treatment Center (Olive Crest) on August 13, 2008. On October 28, 2008, Minor ran away. Minor was arrested and detained on November 1, 2008. A section 777 petition was filed against Minor. Minor admitted that he had run away from Olive Crest.
At a detention hearing conducted on November 4, 2008, Minor’s counsel complained for the first time that the Riverside County Court’s Financial Services Division (court financial services) was trying to recover the costs for Minor’s custody from Parents. The matter was referred to the probation department for a determination of the appropriate costs. In a report dated November 14, 2008, the costs of detention were estimated as $1,848.88, and Parents had paid $1,329.36. It was recommended by the probation department that Parents bear the costs of custody.
According to a report prepared by the probation department on November 14, 2008, it was recommended that, based on Minor’s mental health treatment needs and history of abhorrent behavior, a more secure placement facility was required. A further IEP was needed, and the matter was continued.
According to a report filed on December 15, 2008, the revised IEP recommended that Minor be placed in a “highly restrictive environment” and that he was eligible for mental health services. The matter was continued to find an appropriate facility.
Minor was accepted at the Cinnamon Hills Youth Crisis Center in Utah (Cinnamon Hills), but the placement had to be approved under the State’s Interstate Compact on the Placement of Children (ICPC). Minor was finally placed at Cinnamon Hills in April 2009.
II
ANALYSIS
Minor’s sole contention in this appeal is that the denial of his motion seeking that the juvenile court preclude billing and reimbursement of costs of Minor’s custody was erroneous.
A. Additional Factual Background
As set forth, ante, on August 12, 2008, Minor was declared a ward of the court and it was ordered that he and Parents be responsible for the cost of custody under section 903.
Section 903, subdivision (a) provides in part: “The father, mother, spouse, or other person liable for the support of a minor, the estate of that person, and the estate of the minor, shall be liable for the reasonable costs of support of the minor while the minor is placed, or detained in or committed to, any institution or other place pursuant to Section 625 or pursuant to an order of the juvenile court.”
On February 11, 2009, minor’s appointed counsel filed a notice of motion and motion to preclude the billing and reimbursement of the cost of Minor’s custody (the motion). Minor’s counsel argued that since minor was subject to an active IEP while he was in custody, Parents were not responsible for payment of Minor’s custody. The motion relied almost exclusively on County of Los Angeles v. Smith (1999) 74 Cal.App.4th 500 (Smith).
“‘An IEP is a comprehensive statement of a disabled child’s educational needs and the specifically designed instruction and related services that will meet those needs. [Citation.] It is developed by a school official qualified in special education, the child’s teacher, and the parents. [Citation.] It guides the school system as to how the child will be educated. However, parents may disregard the IEP and educate their child in a manner different from that specified by the IEP. [Citations.]’ [Citation.]” (In re R.W. (2009) 172 Cal.App.4th 1268, 1270, fn. 1.)
In Smith, the appellate court concluded a minor is entitled to a free appropriate public education, and a minor who is in custody under an IEP cannot be charged for that custody. (Smith, supra, 74 Cal.App.4th at pp. 522-523.)
The motion was referred to a research attorney at the juvenile court. On February 23, 2009, the motion was called for hearing. The juvenile court noted it had reviewed the memorandum from the research attorney and agreed that until the county filed an action against Parents to recover the money or they had paid money, the issue was moot. Minor’s counsel informed the trial court that Parents had paid money and had their tax refund checks held. Father stated that he had been working with financial services and that the payments had stopped when Minor went to Olive Crest. Payments were renewed once he was put back in juvenile hall. The trial court again stated that financial services had not filed suit for reimbursement and understood that was required.
The research attorney did prepare a confidential memorandum that the trial court filed and is included in the clerk’s transcript. Minor’s counsel was given a copy. Since the trial court did not rely on the memorandum and the conclusions that the parents had not been billed or made payments on the debt were erroneous, we will not rely on its conclusions in deciding the instant appeal.
The court ordered that the probation department file a response to the motion. A hold on the parent’s California State tax refund was lifted by the juvenile court pending final disposition of the motion. A representative from court financial services was present at the hearing and advised the juvenile court that no lawsuit was required in order to collect from Parents and attach their tax refund.
In the opposition to the motion filed by the probation department, it argued that since Minor was not placed in a residential facility and was not detained because of the IEP, but rather for his own protection and as a flight risk, Parents were responsible for his custody costs.
Minor’s counsel filed a reply on March 20, 2009. Minor’s counsel clarified that on February 19, 2009, Parents’ tax refund was intercepted for a total amount of $1,830.08. Further, Parents had paid by personal check $1,329.36 to court financial services. Minor’s counsel indicated that charges were accruing until Minor was placed at Cinnamon Hills.
In its response to Minor’s reply, the probation department again argued that there was no evidence that Minor’s detention was to facilitate his education needs. It submitted a declaration from the supervisor with the enhanced collections division of the Riverside Superior Court. According to the supervisor, the total juvenile hall costs charged to Parents was $4,046.40, and Parents had paid $1,329.36.
The motion was heard on June 10, 2009. The trial court tentatively ruled based on the documents filed that the charge to Parents was proper for local incarceration of defendant. Minor’s counsel argued that everyone was under the assumption when Minor was sent to Riverside County that he needed residential treatment because of his educational needs. Minor was considered for treatment under Government Code section7576, but it took several months to find him placement there. Minor’s counsel argued that he was always being detained to get proper treatment.
The probation department argued that Minor was never in custody for his educational needs, as required by Smith. Minor’s counsel claimed that Parents wanted Minor to come home; detaining him was only in order for him to get the proper treatment.
The trial court did not think the Smith case involved the same facts as the instant case. The trial court denied the motion.
Minor and Father filed a notice of appeal from the “June 10, 2009 order on billing of Minor’s parents while Minor was WIC 602 ward with disability subject to IEP placement.” (Capitalization omitted.) Father did not file a brief.
Although the probation department has argued that Minor lacks standing to file the instant appeal, we note that the terms and conditions instituted below referred to Minor and Parents being responsible for the cost of custody, and section 903 provides that the parents and estate of a minor are jointly and severally liable for the cost.
B. Analysis
The juvenile court adopted the terms and conditions of the probation report on August 12, 2008, and declared Minor a ward of the court. It was also ordered that Minor and Parents pay for his custody under section 903 at that time. The court services started collecting on the debt after this date, and Parents made a partial payment.
We have no record that Minor filed an appeal from this disposition order. The disposition order is an appealable order. (In re Melvin S. (1976) 59 Cal.App.3d 898, 900). A minor defendant must file a notice of appeal within 60 days after the juvenile court issues an appealable order. (Cal. Rules of Court, rules 5.585, 8.406(a)(1); § 800). Therefore, in order to challenge the court’s order requiring Parents and/or Minor to pay for Minor’s custody under section 903, Minor must have filed a notice of appeal within 60 days of the disposition order. “If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal.” (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; see also In re Gary R. (1976) 56 Cal.App.3d 850, 853; Smith, supra, 74 Cal.App.4th at pp. 503-504 [defendant challenged order under section 903 from original judgment].) Hence the time to appeal from any errors arising from the original judgment entered on August 12, 2008, has long since passed.
We note that Parents were absent at the time of the oral hearing on August 12, 2008. Father never appealed from the original judgment and never filed a brief in this case. Minor, who was present, should have filed an appeal from the original judgment. Minor provides no argument as to why an appeal was not filed after the disposition order wherein the juvenile court ordered “Parent(s)/minor” were ordered to cooperate with court financial services.
Moreover, “[a] judgment in a proceeding under section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment. Pending appeal of the order or judgment, the granting or refusal to order release shall rest in the discretion of the juvenile court.” (§ 800, subd. (a), italics added.)
Denial of the motion was not an “order” or “judgment.” Minor has provided no authority, and we have found no authority, that such a denial of the motion constituted an order that was directly appealable. “‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) As set forth, ante, the order issued on August 12, 2008, which ordered Minor/Parents to pay under section 903 the costs of Minor’s custody, was appealable. However, we cannot conceive how the motion, which was essentially a request for the juvenile court to reconsider its decision made on August 12, 2008, can be considered an appealable order under section 800, subdivision (a). (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458 [“majority of recent cases... have concluded that orders denying motions for reconsideration are not appealable”].)
For the first time in the reply brief, Minor admits that no appeal was taken from the August 12, 2008 order, but he argues that in fact the motion was a motion brought under section 775. He claims that such motion can be made at any time, and he presumes that he can appeal such an order.
Section 775 provides: “Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article.” Section 778 sets forth the procedure for petitioning the juvenile court to change, modify, or set aside any order of the court, and requires that such petition be based upon a change of circumstance or new evidence. Section 778 reads in pertinent part: “Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court.”
Sections 775 and 778 must be read in conjunction with each other. (In re Corey (1964) 230 Cal.App.2d 813, 832.) “There can be little doubt that an order made after a hearing pursuant to section 778 is a proceeding after the original judgment and commitment substantially affecting the rights of the minor and that it is an ‘subsequent order’ under section 800.” (Id. at p. 822.)
Minor never claimed in the juvenile court that he was seeking modification of the original judgment under sections 775 and 778. Here, the juvenile court and the parties were confused by the motion brought by Minor’s counsel. At one point, the juvenile court was going to consider the motion moot because court financial services had not filed an action against Parents for recovery. However, Father clarified that he had already made payment and that his state tax refund was being withheld. Clearly, the only judgment entered that made it possible for court financial services to collect from Parents was made on August 12, 2008, adopting the probation officer’s recommendation that Parents be responsible under section 903.
If the trial court had been properly informed that the motion was brought under sections 775 and 778 as a modification or change to the August 12, 2008, disposition order, the trial court could have reviewed the claim. However, the motion would have been properly denied because Minor failed to show below (and on appeal) that changed or new circumstances warranted filing such a motion. Minor was present at the time he was declared a ward of the court and the conditions were imposed on August 12, 2008. He was subject to an IEP at that time, which had been prepared in 2007. Smith had been decided in 1999, long before the imposition of the costs in this case. The motion provided no facts or circumstances not known at the time the judgment was entered that justified a change or modification to the imposition of the cost of custody pursuant to section 903.
The juvenile court did not need to reach the merits of Minor’s claim in the motion. It was properly denied (if considered a request for reconsideration pursuant to sections 775 and 778), as it failed to meet the requirements that new or different evidence be presented. As such, the motion was properly denied and the merits need not have been addressed by either the juvenile court or this court.
III
DISPOSITION
The order appealed from is affirmed.
We concur: KING J., MILLER J.