Opinion
A145300
01-31-2017
In re KEVIN F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KEVIN F., Defendant and Appellant. RANDY F., et al. Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. SJ1101751101)
The parents of a juvenile, who was adjudicated a ward of the court based on his sexual assault of another minor, appeal from the juvenile court's decision holding them jointly and severally liable for the full amount of the $80,000 restitution judgment imposed on their son. They contend the juvenile court referee who held them responsible for the entire amount ignored provisions of statutes that place limits on the amount and the types of losses resulting from crimes committed by children for which parents may be adjudged responsible. They also contend the juvenile court denied them due process by failing to provide them notice and an opportunity to be heard on the subject of their joint and several liability.
The People make no effort to defend the juvenile court's decision on the merits, relying instead on various procedural arguments. They argue the parents lack standing to appeal, were required to appeal from the original restitution order rather than the order holding them jointly liable, and forfeited their claims by failing to raise them in the juvenile court. The People do contest the parents' due process argument.
We reject the People's standing, appealability and forfeiture arguments and conclude the juvenile court erred in imposing joint and several liability on the parents without affording them notice and a hearing, permitting evidence regarding their ability to pay and considering the statutory limits on their liability. Because we reverse the juvenile court's order and judgment against the parents and remand for further proceedings, we do not reach the parents' claim that they were denied due process.
BACKGROUND
In a wardship petition filed in August 2011, the People charged Kevin F. (Kevin) with seven felonies, including one count of kidnapping and six counts of penetration with a foreign object on a minor. The charges arose out of an incident in February 2010 in which Kevin, then 16 years old, and a 19-year-old named Babak M. Kamkar took 15-year-old Taylor B. (Taylor) out drinking at night and digitally penetrated her multiple times while she was too intoxicated to resist. The initial and amended petitions gave Kevin's parents notice that they "may be jointly and severally liable for . . . any restitution owed to the victim." At the initial hearing, at which Kevin and his parents were present, the court notified Nancy F. and Randy F. (collectively, Parents), "that if [Kevin's] found responsible and if there is any Restitution to any victim that you will have to pay that."
In September 2011, the court held a hearing at which it ordered that Kevin be detained at the Juvenile Justice Center. Later that month, Kevin admitted to one count of sexual assault, and the remaining counts and special allegations were dismissed. At a disposition hearing in October 2013, the court adjudged Kevin a ward of the court, ordered that he be released from custody to Parents and placed him on probation. At the recommendation of the probation department, the court ordered that Kevin participate in a secure residential treatment program at a facility in New Mexico known as Tierra Blanca Ranch and in an approved program for sexual offenders. The court imposed a restitution fine of $100 on Kevin and required him, among other things, to complete 250 hours of volunteer work arranged in cooperation with his probation officer. The court also ordered Parents to reimburse the county for the cost of Kevin's care while he was in county custody "in an amount and at a rate as determined by the financial hearing officer, including attorney's fees." The court scheduled a date a few weeks later for determination of restitution.
Parents appeared at the proceedings leading up to the disposition. Kevin was represented by counsel, but Parents were not.
On October 17, 2011, the court ordered that Parents pay the county, at the rate of $35 per month, an amount representing the approximately $25 per day cost of the minor's support during his detention for the month from September 13 to October 13, 2011, plus fees of approximately $1,300 for juvenile investigation, juvenile supervision, drug and substance testing, and lab test confirmation. The order was pursuant to stipulation entered after a determination by the court's financial hearing officer that Parents had the ability to pay these costs and fees. This determination was based on a hearing before the county evaluation officer that Parents were ordered to attend. There is no indication that the evaluation officer considered or assessed Parents' ability to pay any restitution that could or would later be imposed on Kevin by the court.
From November 2, 2011, through November 2, 2012, a series of hearings were held at which the probation department reported on Kevin's progress in the residential program and sex offender treatment in New Mexico, and the court continued in effect its prior orders and continued the hearing to determine restitution. Kevin appeared through counsel at these hearings; his parents did not appear.
In November 2012, a "Restitution Hearing" was set for December 5, 2012. Prior to that hearing, Kevin's counsel and the deputy district attorney submitted briefs regarding restitution. There is no indication in the record that Kevin's parents were notified of the hearing or served with the briefs. Based on claims submitted by the parents of the victim, Taylor, the district attorney requested that the court order restitution of $65,000. However, an exhibit attached to the district attorney's brief showed a claim totaling $83,889. This included approximately $43,000 in lost wages claimed by Taylor's parents for about 540 hours of their time spent at hearings in both Kevin's matter and his co-participant's adult court matter, as well as in therapy and meetings, approximately $20,000 for a residential treatment program attended by their daughter, approximately $2,000 for co-payments made for psychotherapy, approximately $14,000 for expenses relating to travel to and from the residential treatment program to deliver Taylor and participate in family therapy sessions, and about $4,000 for "[a]mount owed to California Victim's Comp."
The hearing was held on December 5, 2012. Kevin appeared by counsel, but his parents were not present. The victim's mother testified. Before the incident, her daughter was well behaved and a "normal kid" involved in her school, sports and her church, and afterward she became apathetic, angry and disrespectful, and her behavior followed a "downward spiral." Taylor's parents put her in outpatient therapy during 2010 for nearly a year, and she was diagnosed as having post-traumatic stress, mood and anxiety disorders. Taylor's parents and therapist agreed she needed more intensive therapy because the outpatient therapy was not effective, and they enrolled her in a residential facility in Arizona. Taylor's parents visited her and participated in family treatment there, and after eight months she returned home "a different person" and was again healthy, doing well in school and involved in mentoring other girls. Taylor's parents sought restitution for the costs of Taylor's tuition, board and counseling, and wages lost by them while attending hearings, meetings with the district attorney and counseling sessions, spending a day at the hospital and visiting Taylor in Arizona. Taylor's mother testified that they were reimbursed by their insurer and a victim's compensation board for about $14,000 and $3,700, respectively, and that they were "out of pocket a little over 80,000," about half of which was for wage loss and half for the other expenses. The district attorney informed the court that the adult co-participant was ordered to pay restitution of $40,000, of which $36,000 went to Taylor and about $4,000 to reimburse the Victim's Compensation Fund. After Taylor's mother testified, the court continued the hearing until January 2013.
Prior to the January 2013 hearing, Kevin submitted additional briefing. On January 8, 2013, the continued hearing on restitution was held. Again, Kevin appeared through counsel, and his parents were not present. The court ordered Kevin to pay restitution of $80,259 to Taylor's mother. At the hearing, the court explained this amount consisted of "the 40,000 that was ordered that you've agreed to; 25,875 lost wages for juvenile court appearances, and 14,384 paid by Aetna." Apparently, the $40,000 that the court referred to as having been agreed on was the same $40,000 ordered against the adult co-participant, to which Kevin's counsel had offered to stipulate, which, according to the district attorney, consisted of $36,000 for the residential treatment program, visits by the parents, and lost wages to attend local counseling sessions, and $4,000 to reimburse the Victim's Compensation Fund.
There was no discussion of Parents' liability at the December 2012 or January 2013 restitution hearings. Nor did the court orally or in its minute order impose joint and several liability on Parents for all or any part of Kevin's restitution obligation.
On January 15, 2013, the court served on Kevin and Parents by mail its minute order imposing restitution on Kevin. The order stated that "[t]he minor, parent or guardian may apply, within 10 days of service, to the Juvenile Court Judge for a rehearing of the referee's order." The order did not refer to parental liability.
In June through November 2013, the court held additional progress hearings regarding Kevin, in which Kevin continued to appear through counsel and Parents did not appear. In the meantime, Kevin graduated from high school, completed sex offender treatment, completed 281 hours of community service, began paying restitution and enrolled in college in New Mexico. Also during this time, his parents moved to New Mexico, and the court was notified of their move.
In May 2014, the probation department recommended "that the minor be continued under the present order with a JV790 and consideration of dismissal scheduled for 6 months." In November 2014, it again recommended that the court continue Kevin "under the present order with a dismissal and a JV790 scheduled for 6 months, before his 21st birthday on May [...], 2015." In April 2015, the probation department filed a "Dismissal Report" again recommending that Kevin's case be "dismissed with a JV790 order." The report noted that "the subject's adult co-participant, Babak M. Kamkar . . . was ordered to pay $40,226 in Adult Court. The undersigned has included Mr. Kamkar to be severally and jointly liable on the attached Abstract of Judgment." The report noted that the probation officer had "left a voicemail message for Nancy [F.] . . . reminding her and the subject of today's hearing." The record contains no proof of service indicating that the report, filed with the court on April 24, 2015, was served on Parents by mail or otherwise.
On April 30, 2015, the court held a hearing, attended by Kevin, his counsel and Randy F., at which it dismissed the wardship, terminated probation and signed a JV-790. A few minutes into the hearing, the court addressed Randy F., stating: "And then, you know, Mr. [F.], his father, you're responsible for this as well. So this will be—I don't know if you own a home, or whatever, but it will be a lien against your house and your tax returns." Kevin's counsel then requested that Kevin be allowed to "address the Court before the Court makes a final decision on the order." The court responded: "What final decision should I be making?" Kevin's counsel responded: "About the financial responsibility of his parents." The court responded: "No, they have to be. It's by law. But anyway you want to say something, go ahead." Kevin then stated that he had been trying hard to take responsibility for the bad choices he made as a juvenile and did not want his parents to be held responsible for what he had done. He was trying to get a degree so he could pay the restitution himself. The court told Kevin: "And, you know, there is no option here. The law says that a parent of any minor is responsible for the Restitution. [¶] So I would suggest that you can pay your parents back, and that would be the way to do it, if something happens, but they're going to be, like I said before, subject to a lien on their home, if they own one, and their tax returns will be attached if there's any refund." (Italics added.)
Kevin's counsel pointed out that "in the order following the [restitution] hearing, there was no indication of a joint and several liability with the parents. And I understand that that's a statutory requirement, but this week is the first notice that the parents have had." The court disagreed: "Not true. Every parent that walks into this courtroom I tell at the very first hearing that if there is Restitution that they'll be responsible for it. And they can go back and find the court reporter, but I'm absolutely positive I did that. I don't think I've ever missed." It continued: "All right. So your case is now dismissed. And I'm signing this JV 790." (Italics added.)
The JV-790 is a Judicial Council form entitled "Order for Restitution and Abstract of Judgment." The order signed by the court in this case provided as follows: "On (date) 10-13-2011, child (name) [Kevin] was found to be a person described in Welfare and Institutions Code section 602, which entitles the victim to restitution. . . . Wardship is terminated. . . . [¶] Parents or guardians jointly and severally liable (name each): [¶] Randy [F.] (Father) [¶] Nancy [F.] (Mother). . . . [¶] Co-offenders found jointly and severally liable (name each): Babak M. Kamkar . . . [¶] Evidence was presented that the victim named below suffered losses as a result of defendant's/child's conduct. Defendant/child was informed of his or her right to a judicial determination of the amount of restitution and: [¶] . . . a hearing was conducted. . . . [¶] THE COURT ORDERS defendant/child to pay restitution to: [¶] . . . the victim (name): Laura [B.] in the amount of $80,259.00." There is a place on the form to specify the categories included in the restitution amount, including medical expenses, or lost wages or profits incurred by the victim or his or her parents for various reasons. The only box checked by the court was for "other (specify): Counseling Services." On May 1, 2015, the court served its minute order on Kevin and Parents by mail to their address in New Mexico. The minute order, like others in the case, was issued by a referee and stated that the minor or his parents could apply, within 10 days of service, to the juvenile court for rehearing of the order.
Statutory references are to the Welfare and Institutions Code except as otherwise indicated.
On May 29, 2015, the court received from an attorney representing Parents an "Application For Rehearing" of the matter decided on April 30, 2015, on the ground that the court's finding that the parents were liable for restitution of $80,249 for counseling services was erroneous because the parents were not given notice or an opportunity to present evidence, parental liability was limited by statute to $39,300 and was further limited to medical, dental and hospital expenses, and the restitution included alleged losses of " 'derivative victims.' " The application cited section 730.7, Civil Code section 1714.1 and In re Scott (2012) 209 Cal.App.4th 864. The court rejected the application and returned it on the ground that it was "not timely. Would need to file within 10 days from that court date where restitution was ordered. Time has lapsed to do so."
On June 1, 2015, Parents filed a notice of appeal from the "Order of Restitution and Abstract of Judgment entered on or about April 30, 2015." The notice requested appointment of counsel on appeal and indicates appellants were "not represented by an appointed attorney in the superior court."
DISCUSSION
I.
Legal Background: Parental Liability for Restitution
Section 730.6 provides that a victim of conduct for which a minor is adjudicated to be a ward of the court, who incurs economic loss as a result of the minor's conduct, "shall receive restitution directly from that minor." (§ 730.6, subd. (a)(1).) That section further provides that the court "shall" impose restitution "in the amount of the losses, as determined," that it "shall order full restitution unless it finds compelling and extraordinary reasons for not doing so," and that "[a] minor's inability to pay shall not be considered a compelling or extraordinary reason not to impose a restitution order, nor shall inability to pay be a consideration in determining the amount of the restitution order." (Id., subd. (h)(1).) It further provides that the restitution order "shall be of a dollar amount sufficient to fully reimburse the victim or victims for all determined economic losses incurred as the result of the minor's conduct," including "[m]edical expenses" and "[w]ages or profits lost due to injury incurred by the victim, and if the victim is a minor, wages or profits lost by the minor's parent, [or] parents, . . . while caring for the injured minor" or "due to time spent as a witness or in assisting the police or prosecution." (Ibid.) Section 730.6 provides that "[a] minor shall have the right to a hearing before a judge to dispute the determination of the amount of restitution." (Id., subd.(h)(2).)
Regarding parental responsibility for restitution ordered to be paid by a minor, Section 730.7, subdivision (a) provides: "In a case in which a minor is ordered to make restitution to the victim or victims, . . . a parent . . . who has joint or sole legal and physical custody and control of the minor shall be rebuttably presumed to be jointly and severally liable with the minor in accordance with Sections 1714.1 and 1714.3 of the Civil Code for the amount of restitution, fines, and penalty assessments so ordered, up to the limits provided in those sections, subject to the court's consideration of the parent's . . . inability to pay. When considering the parent's . . . inability to pay, the court may consider future earning capacity, present income, the number of persons dependent on that income, and the necessary obligations of the family, including, but not limited to, rent or mortgage payments, food, children's school tuition, children's clothing, medical bills, and health insurance. The parent . . . shall have the burden of showing an inability to pay. The parent . . . shall also have the burden of showing by a preponderance of the evidence that the parent . . . was either not given notice of potential liability for payment of restitution, fines, and penalty assessments prior to the petition being sustained by an admission or adjudication, or that he or she was not present during the proceedings wherein the petition was sustained either by admission or adjudication and any hearing thereafter related to restitution, fines, or penalty assessments." (§ 730.7, subd.(a), italics added.)
The incorporated Civil Code sections address a parent's civil liability for willful misconduct by his or her child. Relevant here is section 1714.1, which provides that the parent having custody and control of a child "shall be jointly and severally liable with the minor for any damages resulting from the [child's] misconduct." (Civ. Code, § 1714.1, subd. (a).) Section 1714.1, subdivision (a) provides that acts of willful misconduct of a minor that result in injury or death to another person or injury to property shall be imputed to the parent or guardian having custody and control of the minor, who shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct. Section 1714.1, subdivision (a) further provides that the joint and several liability of the parent "shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor and, in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000)." (Ibid.) Finally, section 1714.1, subdivision (c) provides that the $25,000 amount "shall be adjusted every two years by the Judicial Council to reflect any increases in the cost of living in California, as indicated by the annual average of the California Consumer Price Index," rounding "up or down to the nearest hundred dollars." The adjusted amount set by the Judicial Council effective at the time Kevin committed the crime in February 2010 is set forth in the Historical Notes to Appendix B to the California Rules of Court and, as Parents point out, was $37,100.
Civil Code section 1714.3 addresses parental liability for injury caused by a minor's discharge of a firearm and is not pertinent here.
Civil Code section 1714.1 provides that "[t]he maximum liability imposed by this section is the maximum liability authorized under this section at the time that the act of willful misconduct by a minor was committed." (Civ. Code, § 1714.1, subd. (d).)
There are also provisions of the Welfare and Institutions Code that address notice to parents of their potential joint and several liability and their opportunity to be heard. Section 656 requires a petition to commence proceedings to declare a minor a ward of the court to contain, among other things, "[a] notice to the parent or guardian of the minor that if the minor is ordered to make restitution to the victim pursuant to . . . Section 730.6, or to pay fines or penalty assessments, the parent or guardian may be liable for the payment of restitution, fines, or penalty assessments." (§ 656, subd. (k), italics added.)
Section 729.5 provides that when a section 602 petition is sustained against a minor, "the court, in addition to the notice required by any other provision of law, may issue a citation to the minor's parents or guardians, ordering them to appear in the court at the time and date stated for a hearing to impose a restitution fine," and that "[t]he citation shall notify the parent or guardian that, at the hearing, the parent or guardian may be held liable for the payment of restitution if the minor is ordered to make restitution to the victim. The citation shall contain a warning that failure to appear at the time and date stated may result in an order that the parent or guardian pay restitution up to the limits provided for in Sections 1714.1 and 1714.3 of the Civil Code." (§ 729.5, subds. (a), (b).) Service of the citation "shall be made on all parents or guardians of the minor whose names and addresses are known to the petitioner" and "shall be made at least 10 days prior to the time and date stated therein for appearance, in the manner provided by law for the service of a summons in a civil action, other than by publication." (Id., subds. (g), (h).) The hearing may be held "immediately following the disposition hearing or at a later date, at the option of the court," and "[i]f the parent or guardian fails to appear pursuant to this section, the court may hold the parent or guardian jointly and severally liable with the minor for restitution, subject to the limitations contained in subdivision (b)." (Id., subds. (c), (d).)
The permissive "may" language at the outset of this section raises the question whether the Legislature intended the procedures it sets forth to be mandatory or discretionary when a juvenile court is considering imposition of liability on parents. The ambiguity is compounded by the mandatory language of the remainder of the section which prescribes notification and a warning the citation "shall" contain and the method by which the citation "shall" be served. The procedures the section prescribes are obviously designed to afford parents due process before a juvenile court imposes joint and several liability on them. We need not decide whether section 729.5's notice and hearing procedures, which the referee did not follow in this case, are mandatory or discretionary because the parties have not raised the issue and in any event we are reversing on other grounds.
"Execution may be issued on an order holding a parent or guardian jointly or severably liable with the minor for restitution in the same manner as on a judgment in a civil action, including any balance unpaid at the termination of the court's jurisdiction over the minor." (§ 729.5, subd. (e).) Also, "[a]t any time prior to the full payment of restitution ordered pursuant to this section, a person held liable for payment of restitution may petition the court to modify or vacate the order based on a showing of change in circumstances." (Id., subd. (f).)
II.
The Order Imposing Joint and Several Liability on Parents Is Appealable , and
Parents Have Standing.
Parents argue that the juvenile court's order imposing joint and several liability on them for Kevin's restitution obligation is appealable. The People dispute this, arguing that the parents lack standing.
As Parents point out, two Court of Appeal decisions have held that parents have the right to appeal from a juvenile court order imposing liability on them for restitution for criminal acts committed by their children. (In re Michael S. (2007) 147 Cal.App.4th 1443, 1448-1449 (Michael S.); In re Jeffrey M. (2006) 141 Cal.App.4th 1017, 1021 (Jeffrey M.).)
See also In re Q.N. (2012) 211 Cal.App.4th 896, 905 (relying on Jeffrey M. and Michael S. to hold Department of Education could appeal from order in juvenile proceeding that required it to provide special education services to minor).
The People contend Parents lack standing to appeal because "the juvenile court no longer has jurisdiction to alter the restitution order because [Kevin] is over age 21 and because the court terminated his wardship and dismissed his probation." "Any attempt to effectuate or to challenge [the JV-790] must be made in civil court." The People rely in part on In re Almalik S. (1998) 68 Cal.App.4th 851 (Almalik S.) and a treatise that cites that case, for the proposition that section 800, regarding appeals from section 602 proceedings, "affords no right of appeal to parents in juvenile delinquency matters." We find this argument unpersuasive for two reasons.
First, as the Michael S. court observed, Almalik S. did not involve any direct interest of the parent. (Michael S., supra, 147 Cal.App.4th at pp. 1449-1450 & fn. 4.) In Almalik S., the mother appealed from an order declaring her son a ward based on his admitted violation of a criminal statute, and sought to challenge the ruling that the violation was a felony. (Almalik S., supra, 68 Cal.App.4th at p. 852.) The court held the parent of a minor lacks standing to appeal a judgment against the minor in a juvenile delinquency matter when the minor has not been removed from the parent's custody. (Id. at pp. 853-854.) Its statement that section 800 "affords no right to appeal in juvenile delinquency matters to a parent" (Almalik S., at p. 854) does not preclude a parental appeal where other statutes authorize such appeal, and here section 730.7, section 1714.1 of the Civil Code, and section 904.1 of the Code of Civil Procedure provide such authority. (See Code Civ. Proc., § 904.1, subd. (a)(1) [an appeal may be taken from a judgment]; Jeffrey M., supra, 141 Cal. App. 4th at p. 1021; Michael S., supra, 147 Cal.App.4th at pp. 1448-1450.) Parents are not challenging the restitution award against their son; rather, they appeal only the order imposing joint and several liability on them, an order in which they have a direct and legally distinct interest.
Second, the People's argument that Kevin's majority deprives the courts of jurisdiction is incorrect. Although this case involves parental liability, it is analogous to two cases in which the courts rejected arguments similar to that asserted by the People here that a juvenile court necessarily and for all purposes loses jurisdiction over restitution in a delinquency matter once the ward reaches majority: In re J.V. (2014) 231 Cal.App.4th 1331 (J.V.) and In re Keith C. (2015) 236 Cal.App.4th 151 (Keith C.).
In J.V., the juvenile court issued a revised restitution order (reflecting the then-current amount) and an abstract of judgment against the delinquent ward after he turned 21, and the former ward claimed the order and judgment were invalid because the court's jurisdiction had terminated by operation of law. (J.V., 231 Cal.App.4th, supra, at pp. 1333, 1335.) This court rejected the argument, holding "the juvenile court acted within its authority in issuing the order/abstract." (Id. at p. 1336.) In Keith C., we similarly rejected a ward's contention that the juvenile court, having issued an earlier restitution order, lacked jurisdiction to enter an abstract of judgment (JV-790) permitting collection of the restitution debt more than two years after the minor reached his 21st birthday. (Keith C., supra, 236 Cal.App.4th at pp. 154, 155-157.) While recognizing that "[a]s a general matter, a juvenile court loses jurisdiction over a ward who attains 21 years of age," we observed that a restitution order is "deemed a money judgment" and "[c]ivil judgments are enforceable for 10 years [citation] and may be renewed any time during those 10 years." (Id. at p. 155.) "A juvenile's obligation to pay restitution thus extends beyond the period of wardship and survives the termination of juvenile court jurisdiction." (Ibid.) "Under the provisions of the Code of Civil Procedure applicable to the enforcement of money judgments, the juvenile court has the authority to renew restitution orders and the obligation to issue abstracts of judgment for at least 10 years." (Id. at p. 156.)
Just as the obligation of the ward to pay restitution "extends beyond the period of wardship and survives the termination of juvenile court jurisdiction," so, too, does a parent's joint and several liability, once established pursuant to section 730.7. This makes perfect sense. The interest Jeffrey M. and Michael S. held parents were entitled to protect via appeal—i.e., avoiding personal liability for injury caused by their child in excess of that authorized by law—does not disappear when a child turns 21. On the contrary, the civil judgment against the parents for joint and several liability may be enforced against them to the same extent as any civil judgment and may be renewed. (See Michael S., supra, 147 Cal.App.4th at p. 1448 [liability arising out of section 730.7 is civil liability giving rise to money judgment for civil damages]; § 729.5, subd. (e).) Such a judgment is enforceable for a period that extends well beyond the termination of the wardship and the ward's attaining the age of majority. (See § 729.5, subd. (e).) Indeed, section 729.5, subdivision (f) requires the juvenile court to entertain petitions to modify or vacate a restitution order based on changed circumstances "[a]t any time prior to the full payment of restitution ordered," which obviously may encompass periods beyond the date at which the juvenile attains full majority. (Id., subd.(f), italics added.)
In short, we hold that the juvenile court retains jurisdiction over matters concerning restitution after the wardship is terminated and the subject reaches the age of 21, at least where, as here, the court ordered restitution and imposed joint and several liability on the parents before the ward reached the age of 21.
We do not address whether a juvenile court would have jurisdiction to issue a restitution order against a youth or his parents in the first instance after the youth had reached the age of majority.
Finally, the People argue Parents lack standing because Kevin "has not appealed the restitution order and yet he is the only 'judgment creditor' listed on the JV-790. His parents are not so named." We are frankly amazed that the People have advanced this argument, which is patently meritless. The parents are named on the JV-790, i.e., the "Order for Restitution and Abstract of Judgment" as "jointly and severally liable" for restitution of $80,259.00. As we have already noted, under section 729.5, "[e]xecution may be issued on an order holding a parent or guardian jointly or severally liable with the minor for restitution in the same manner as on a judgment in a civil action, including any balance unpaid at the termination of the court's jurisdiction over the minor." (§ 729.5, subd. (e).) Indeed, the juvenile court commissioner made plain this was the case at the hearing where he imposed joint and several liability on Parents, stating that the JV-790 would "be a lien against your house and your tax returns."
We conclude that the April 30, 2015 order of the court resulting in the issuance of the JV-790, is an appealable order and that Parents have standing to appeal.
III.
Parents Did Not Forfeit Their Objections to the Joint and Several Liability Order and
Judgment , and Their Appeal Was Timely.
The People advance several additional procedural arguments. First, they argue Parents failed to preserve their objections because "[w]hen confronted with the victim's restitution request, [they] did not obtain representation by counsel and/or timely assert that they should not be jointly and severally liable for [Kevin's] restitution" and "did not raise the specific claims here regarding application of Civil Code sections 1714.1 and 1714.3." In a similar vein, they argue Parents' appeal is untimely because they did not "appeal their joint and several liabilities when the restitution order issued on January 8, 2013" or seek rehearing of the referee's restitution order. Neither argument is persuasive.
First, at the December 2012/January 2013 "Restitution Hearing," the district attorney sought restitution from Kevin, and her brief neither requested nor discussed imposing liability on Parents. Kevin's brief likewise addressed only his personal restitution obligation, not parental liability. There is no indication Parents were provided notice of the restitution hearing, but even if they had received such notice they would have no reason to expect their own liability would be addressed at that hearing based on the content of the district attorney's brief. Not surprisingly given the absence of any indication that their rights were at stake, Parents did not submit briefing or evidence or appear at the hearing. Nor, when they received the minute order imposing restitution on Kevin after the court clerk served it on them by mail would they have had any reason to seek rehearing or file an appeal unless they intended to challenge the award of restitution as to Kevin. And as already noted, they do not, in this appeal, challenge the underlying restitution order, either at all or in amount. They seek simply to enforce the distinct limitations imposed by statutes governing parental responsibility for restitution.
Second, contrary to the People's contention that Parents were required to appeal from the original restitution order against Kevin, and waived their rights by failing to do so, for similar reasons we cannot agree. At the time that order was entered against Kevin in January 2013, no liability had been imposed on Parents. Nor was there any judgment against them at that juncture. There was no waiver because they were not required to appeal until an order or judgment actually imposed joint and several liability on them. That order and judgment were issued in April 2015, and their appeal from it is timely.
Again, Parents do not challenge the determination of the amount of restitution imposed on Kevin or seek to assert his statutory rights under section 730.6. We need not therefore address whether, had they sought to assert such a challenge, even derivatively to protect their own rights, they were required to do so at the restitution hearing in 2012 and 2013. Here, as we have discussed, they seek only to assert their rights as parents under the statutes specifically limiting parental liability, and those rights did not become ripe until the court issued the JV-790 in January 2015.
The People also claim Parents forfeited their rights because Randy F. was present at the April 30, 2015 hearing at which the court imposed joint and several liability on parents and failed to dispute liability on his own behalf or request a hearing on the issue. There are two problems with this argument.
First, there is no indication in the record that Parents were given notice prior to the April 30, 2015 hearing that their rights would be addressed at the hearing. Without reasonable notice that their rights would be addressed at that hearing, Parents were deprived of the opportunity to consult counsel to advise them on their rights and/or represent them at the hearing. In that circumstance, we cannot find their failure to argue on their own behalf worked a forfeiture.
Notably, the juvenile court referee did not follow the statutory procedure prescribed in section 729.5 for providing parents notice and an opportunity to be heard. It issued no citation to Parents "ordering them to appear in the court at the time and date stated for a hearing to impose a restitution fine," "notify[ing] [them] that, at the hearing, the parent . . . may be held liable for the payment of restitution if the minor is ordered to make restitution to the victim," or "warning that failure to appear at the time and date stated may result in an order that the parent . . . pay restitution up to the limits provided for in Sections 1714.1 and 1714.3 of the Civil Code." (See § 729.5, subds. (a), (b).) Indeed, there is no indication that any notice stating that the court planned to address Parents' joint and several liability at the hearing was served on Parents, much less that such notice was given "at least 10 days prior to the time and date stated therein for appearance," and "in the manner provided by law for the service of a summons in a civil action." (Id., subds. (g), (h), italics added.) The sole indication in the record that Parents received any notice regarding the April 2015 hearing is a probation department report stating "[t]he undersigned left a voicemail message for Nancy [F.] on April 22, 2015, reminding her and the subject of today's [April 30, 2015] hearing." Even assuming the probation officer informed Nancy [F.] in the voicemail message that the issue of joint parental liability for restitution would be addressed at the hearing, which is not at all apparent from this cryptic entry, an oral message left on the phone of an out-of-state parent eight days before a hearing falls well short of the kind of notice the statute indicates is adequate. (See § 729.5, subds. (a), (b), (g), (h) [citation must notify parents that at hearing they may be held liable for restitution, contain warning that failure to appear may result in an order that they pay restitution up to statutory limits, and be served on parents at least 10 days prior to hearing in the manner provided for service of summons in civil action].)
Further, we agree with Parents that they were not afforded a meaningful opportunity to be heard at the April 30, 2015 hearing. After a brief discussion of Kevin's progress and whether he had been making restitution payments, the court remarked: "And then, you know, Mr. [F.], his father, you're responsible for this as well. So this will be—I don't know if you own a home, or whatever, but it will be a lien against your house and your tax returns." (Italics added.) When, thereafter, Kevin's counsel asked if he could address the court on the subject of his parents' responsibility for restitution, the referee initially cut her off: "No, they have to be. It's by law." (Italics added.) The court did then allow Kevin to speak, but after Kevin stated he hated to see his parents be held responsible for his mistakes and intended to pay the restitution back himself, the court stated: "And, you know, there is no option here. The law says that a parent of any minor is responsible for the Restitution." (Italics added.) The court suggested that Kevin could pay his parents back, but observed "they're going to be, like I said before, subject to a lien on their home, if they own one, and their tax returns will be attached if there's any refund." (Italics added.) At that point, Kevin's counsel noted that "in the order following the [restitution] hearing, there was no indication of a joint and several liability with the parents. And I understand that that's a statutory requirement, but this week is the first notice that the parents have had." The court disagreed because "Every parent that walks into this courtroom I tell at the very first hearing that if there is Restitution that they'll be responsible for it." The court then dismissed the wardship proceedings and stated, "And I'm signing this JV 790." (Italics added.)
The court's comments were legally inaccurate, disregarding the limitations on parental liability afforded by section 730.7 and Civil Code section 1714.1. Further, it communicated in no uncertain terms—and in derogation of these statutes—that there were no legal bases upon which the court could decline to impose liability on Parents for Kevin's restitution obligation or limit their liability in any way, that they were liable for the entire restitution amount, and there was nothing they could say or do that would change that outcome. After misinforming Randy F. that there was no evidence, argument or circumstances that could justify a different result, the court cut off discussion entirely and stated it was signing the joint and several liability judgment.
Contrary to the court's suggestion that its oral admonishment at the outset of the case, some four years prior to the April 2015 hearing, that Parents would be liable if restitution was ordered against Kevin provided them adequate notice, it did not. That warning was inaccurate for the same reasons as the court's comments at the hearing: it failed to take into account any of the limitations on parental liability contained in Civil Code section 1714.1 and incorporated into section 730.7. More accurate was the statement in the written petitions that were served around the same time stating they "may be jointly and severally liable for . . . any restitution owed to the victim." (Italics added.) However, even that warning failed to inform parents they would have an opportunity to address the subject of their liability, much less when and where such opportunity would be afforded.
Finally, the court's minute order was apparently served on Parents by mail on May 1, 2015, but the judgment was not included in it. It did inform Parents they could apply to the juvenile court for rehearing of the court's order within 10 days of service. Under Code of Civil Procedure section 1013, subdivision (a), this deadline was extended by law by an additional 10 days because it was served by mail on Parents living out-of-state, making their petition for rehearing due on May 21, 2015. They did submit an Application for Rehearing, signed by counsel on their behalf, on May 29, 2013, and that petition raised all of the issues Parents have raised on appeal. However, the court returned the Petition with a form indicating it was "not timely" because "[w]ould need to file within 10 days from that court date where restitution was ordered." Given the lack of adequate advance notice of the hearing and the misinformation provided by the court at the hearing, we will not hold that the extra eight days it took them after service to retain counsel and file the petition worked a forfeiture.
IV.
The Juvenile Court Erred As a Matter of Law in Ordering That Parents Were Jointly
and Severally Liable on Kevin's Entire $80 , 259 Restitution Obligation.
Having disposed of the People's procedural arguments, we now turn to the merits of this appeal, specifically, whether the juvenile court's order and judgment imposing joint and several liability on Parents for Kevin's restitution obligation was error. As a general rule, we review an order of restitution for abuse of discretion. (In re Anthony M. (2007) 156 Cal.App.4th 1010, 1016.) However, "[t]he court abuses its discretion when it acts contrary to law. . . . Moreover, when the propriety of a restitution order turns on the interpretation of a statute, a question of law is raised, which we review de novo." (Ibid.)
The juvenile court abused its discretion by imposing joint and several liability on Parents without regard to the rebuttable nature of the presumption of such liability under section 730.7 and without regard to any of the limitations imposed by that section and the Civil Code sections it incorporates. The court provided Parents no opportunity to demonstrate whether they had the ability to pay, although it was required to do under section 730.7. The court disregarded the ceiling placed on parental liability for a child's acts causing personal injury under section 1714.1 of the Civil Code, and incorporated in section 730.7. Thus, even if the court had found Parents were able to pay the full restitution amount, it erred in imposing liability on them in excess of that approximately $37,100 ceiling. (Civ. Code, § 1714.1, subds. (b)-(d); see Michael S., supra, 147 Cal.App.4th at pp. 1455-1456 ["the maximum liability that even might possibly have been assessed against Michael's mother Catherine was $25,000"].) Finally, having failed to afford Parents notice and an opportunity to be heard on the matter, the court did not have occasion to address the argument they make here that section 730.7 incorporated section 1714.1's substantive limitations on the categories of losses for which parents may be held liable and that none of the restitution awarded against Kevin was for losses falling within those categories.
Ironically, the court did apparently address their ability to pay the various court fines imposed on them amounting to a few thousand dollars, but made no effort to determine their ability to pay the $80,000 restitution judgment.
Parents argue here that the restitution award included no "medical, dental or hospital" expenses within the meaning of section 1714.1. The "counseling services" identified in the JV-790 consisted of outpatient psychotherapy and the cost of counseling, tuition and board at an out-of-state school called the "Re-creation Retreat." Further, a substantial part of the award was apparently for wage loss the victim's parents incurred as a result of the court proceedings and her treatment. Parents also argue that section 1714.1 "cannot intelligibly be read to impose liability for either 'counseling services' or 'lost wages' on parents." This argument rests on a comparison of sections 730.7 and 1714.1 to the statutes imposing direct responsibility on perpetrators, adult and juvenile, for restitution.
In regard to personal injuries, section 1714.1 limits parental liability to "medical, dental and hospital expenses incurred by the injured person." (Civ. Code, § 1714.1, subd. (a).) The restitution judgment and abstract of judgment prepared by the court on Judicial Council form JV 790 described the $80,259 in restitution as including only "Other," specifically "Counseling Services," although its oral statements indicated it included the victim's parents' claimed wage losses to attend juvenile court hearings and counseling sessions, as well as travel expenses they incurred to visit their daughter.
The People make no attempt to address section 1714.1 or its limitations. They focus on section 730.6, the statute governing restitution awards against perpetrators who are minors, and argue it was intended to require the juvenile court to order full restitution absent compelling reasons for not doing so. That is true enough, but section 730.7 is different. It provides a rebuttable presumption of joint and several liability "in accordance with Section[] 1714.1 . . . of the Civil Code for the amount of restitution . . . so ordered, up to the limits provided in [that] section[]" and "subject to the court's consideration of the parent's . . . inability to pay." (§ 730.7.)
The People ignore those limits, arguing with a broad brush that the Legislature intended to impose liability on parents for the "economic damages" arising from their children's criminal acts. This ignores that section 1714.1 limits parental liability, however, to $25,000 for each tort of the minor as adjusted by the Judicial Council at the time of the criminal act. As we have discussed, in 2010 the adjusted amount was $37,100. This is "the maximum liability that even might possibly have been assessed against" Kevin's parents. (Michael S., supra, 147 Cal.App.4th at p. 1455.) It also ignores Parents' argument that "[i]n the present case, the victim did not claim any 'medical, dental or hospital' expenses," that the counseling services and lost wages for which the victim's parents sought restitution are not "medical expenses" within the meaning of section 1714.1 and that none of the economic losses for which restitution was ordered fall within categories of losses for which parents can be held responsible.
Parents' arguments should have been addressed by the People. The failure of a respondent to address an appellant's argument does not amount to a concession of its merit (Griffin v. Haunted Hotel (2015) 242 Cal.App.4th 490, 505; Kruger v. Department of Motor Vehicles (1993) 13 Cal.App.4th 541, 546), but given both the People's failure to address them and the fact that the juvenile court did not consider them, we are not inclined to decide them in the first instance on appeal. Rather, the juvenile court shall provide Parents notice and an opportunity to be heard on their liability for restitution.
DISPOSITION
The order imposing joint and several liability against Parents and the judgment and abstract of judgment based thereon are reversed. We remand this case to the juvenile court for proceedings consistent with this opinion. Because we reverse the judgment against Parents, we need not resolve their arguments that the juvenile court denied them due process.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.