Opinion
A155949
11-27-2019
In re T.K., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JV01037705)
Defendant T.K. appeals from the juvenile court's disposition order removing him from his mother's custody, continuing him as a ward of the court, placing him in the care and custody of the probation department, and subsequently placing him in a short-term residential therapeutic program. Defendant argues that under Welfare and Institutions Code section 706.6 , the probation department was required to, but did not, convene a child and family team meeting prior to submitting its dispositional report to the court. He also argues that his out-of-home placement violates his right to substantive due process and California statutes reflecting this right. We affirm the disposition order.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
A. The Underlying Offenses
A second amended wardship petition alleged that defendant committed the following felony offenses: two counts of carjacking (Pen. Code, § 215, subd. (a), counts Nos. 1 and 3); four counts of second degree robbery (Pen. Code, § 211, counts Nos. 2, 4, 5 and 6); and two counts of vehicle theft (Veh. Code, § 10851, subd. (a), counts Nos. 7 and 8). The petition also alleged that defendant had two prior sustained felonies (Veh. Code, § 2800.2). Counts Nos. 1 and 2 specially alleged that defendant inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)); counts Nos. 3 and 4 specially alleged that the victim was over age 65 (Pen. Code, § 667.9, subd. (a)).
1. Counts Nos. 1 and 2
On September 9, 2018, a woman was sitting in her parked car when she saw a male subject, whom she later identified as defendant, running toward her. She tried to roll up her window, but defendant opened the driver's side door and ordered her out of the car. Defendant grabbed the woman, pulled her out of the car, and threw her to the ground, injuring her index finger. Defendant demanded her car keys, took them, and he and a passenger drove off. Surveillance cameras recorded the incident, and the woman's car was located with GPS tracking. Officers found defendant in the driver's seat with two passengers in the back seat. The trio fled, but all were apprehended.
2. Counts Nos. 3 and 4
On September 8, 2018, defendant and another male approached a woman over the age of 65 as she unloaded belongings from her Mercedes. Defendant pulled her to the ground while removing her purse and backpack containing an iPhone and credit cards. He grabbed the car keys and drove off in her car. The car was subsequently found damaged and abandoned. When defendant was arrested on September 9, 2018, he had a key fob on him that started the stolen Mercedes and his fingerprint was found inside of the Mercedes. The victim identified defendant as one of the carjackers.
3. Counts Nos. 5 and 6
On June 1, 2018, defendant and two other males came up behind two women walking on the street. The men grabbed the women's purses from behind, pulling one woman to the ground. The women's bags contained laptops and credit cards. When one woman resisted, a robber hit her in the face. The robbers fled in a waiting Toyota, and a witness wrote down the license plate. The car had been reported stolen earlier that day.
4. Counts Nos. 7 and 8
On June 1, 2018, a woman reported that she was seated in her parked Toyota with the driver's side door open when a car pulled up next to her, two men pulled her out of her car by her legs, sprayed her face with pepper spray, and drove away in her car. Defendant was recorded on surveillance video driving the stolen Toyota. When the police attempted to stop defendant, he continued driving. The police pursued defendant for over a mile and then canceled pursuit for the safety of the public. The Toyota was found abandoned.
On May 10, 2018, a woman walking in Oakland was robbed of her purse. The robber fled in a car reported stolen earlier that day. About an hour after the robbery, a surveillance camera recorded defendant using the victim's credit card at a Burger King and leaving in the stolen car. B. Procedural History
On July 3, 2018, at age 14, defendant was adjudged a ward of the Alameda County Juvenile Court (§ 602) following sustained petitions on two felony violations for fleeing from peace officers during high-speed chases (Veh. Code, § 2800.2, subd. (a)). He was placed on formal home supervision with his mother.
On July 5, 2018, defendant was arrested in another county for robbery, evading the police, and possession of stolen property. The charges were dismissed, and defendant was released to his mother. On July 10, 2018, the Alameda County Probation Department issued a warrant for defendant's arrest for violating probation and for being arrested in another county. On July 20, 2018, defendant was found in a vehicle suspected to have been involved in a robbery, and police took defendant into custody on the warrant. Defendant was released on GPS to his mother.
On September 9, 2018, defendant was arrested while on GPS. The Alameda County District Attorney filed a subsequent wardship petition, which it twice amended.
On October 9, 2018, the court accepted defendant's agreement to admit the carjacking allegation in count No. 1 in exchange for dismissal of the remaining counts and allegations, with facts and restitution open. Defendant's maximum confinement time on three sustained counts (one carjacking and two prior high-speed chases) was 10 years, four months. At the hearing, defendant's counsel informed the court that she intended to submit a proposed home release plan to avoid defendant's placement in a group home, and the court suggested that counsel work with probation. Counsel confirmed that she would do so.
On October 18, 2018, defendant filed a home placement plan recommending that he remain in his mother's care. This document included plans for defendant's therapy and counseling at the Seneca program, a special day program provided at his high school, and a schedule for his weekend and weekly activities at school, after school, and with family. His mother proposed to take a leave of absence from her job to supervise defendant. The probation officer filed a dispositional report the same day, attaching defendant's home release plan and reviewing his social, educational, family, and criminal history, as well as his current offenses. Probation assessed defendant's risk of reoffending as high and screened him for out-of-home placement. Given the nature of defendant's offenses, his mental health history, and his criminal history since age 13, probation recommended that defendant be removed from his mother's custody and placed in a suitable family or group home to receive needed therapy and to focus on rehabilitation.
At the disposition hearing on October 23, 2018, after receiving and reviewing the dispositional report, defendant's home placement plan, and materials on the Seneca program, and after hearing testimony from defendant and his family, the court continued defendant as a ward of the court and placed him in the care and custody of the probation department to be placed in a suitable family or group home, with various terms and conditions of probation and restitution open. The court set a placement review hearing two weeks out.
On November 6, 2018, the probation officer filed a memorandum advising that he had considered defendant's home placement plan. The officer concluded, however, that defendant's "recent involvement in repeated serious offenses suggests an immediate need for crisis intervention." The officer noted that defendant could utilize his home placement plan following his successful completion of a period of therapy and treatment in a controlled environment. On December 24, 2018, defendant was placed with the Children's Home of Stockton (Children's Home), a short-term residential therapeutic program. Defendant timely appealed the court's disposition order.
II. DISCUSSION
A. Failure to Conduct a Child and Family Team Meeting
Defendant argues that the juvenile court's disposition order must be reversed because a child and family team (CFT) meeting was required under section 706.6 before the court could order him removed from his mother's custody and placed out-of-home. We review a juvenile court's disposition order for abuse of discretion, indulging all reasonable inferences to support its decision. (In re Oscar A. (2013) 217 Cal.App.4th 750, 755; In re Antoine D. (2006) 137 Cal.App.4th 1314, 1320.)
1. The Statutory Scheme
In juvenile delinquency proceedings, before a disposition order is made for a minor, the probation officer must prepare, and the court must consider, a social study of the minor. (§§ 706, 706.5.) If the probation officer recommends placement in foster care, the social study prepared by the probation officer and received into evidence at the disposition hearing "shall include a case plan, as described in Section 706.6." (§ 706.5, subd. (a); see also Cal. Rules of Court, rule 5.785(a)(1) .) The case plan shall either be attached to the social study or incorporated as a separate section within the social study. (§ 706.6, subd. (c).) The probation officer must submit the social study and case plan to the court 48 hours before the disposition hearing. (Rule 5.785(a)(1)-(2); see also rule 5.785(c)(1) [a case plan must be filed with the court by the date of disposition].)
All further rule references are to the California Rules of Court.
Section 706.6 provides a list of information that the case plan must provide in applicable situations. (§ 706.6, subd. (c)-(q).) In 2015, the Legislature amended section 706.6 by enacting the Continuum of Care Act (the Act). (See Stats. 2015, ch. 773, § 49.5.) The Act generally sought to improve California's child welfare system. (Id., § 1, subd. (a).) It introduced the idea of the CFT, recognizing "[t]hat working with the child, youth, and family as part of a team results in better outcomes. The child and family team, including extended family and community or tribe, is the primary vehicle for collaboration on the assessment, case planning, and placement decisions that are made by placing agencies. Use of these teams is based upon the wraparound model of care and is intended to support social work, practice, and decisionmaking." (Id., § 1, subd. (c)(1)(C)(5).) Among other statutes, the Act amended sections 706.6 and 16501 to incorporate the concept of the CFT. (Stats. 2015, ch. 773, §§ 49.5, 108.5.)
As pertinent here, section 706.6 provides, "Services to minors are best provided in a framework that integrates service planning and delivery among multiple service systems, including the mental health system, using a team-based approach, such as a child and family team. A child and family team brings together individuals that engage with the child or youth and family in assessing, planning, and delivering services. Use of a team approach increases efficiency, and thus reduces cost, by increasing coordination of formal services and integrating the natural and informal supports available to the child or youth and family." (§ 706.6, subd. (a).) "In its development of the case plan, the probation agency shall consider any recommendations of the child and family team, as defined in paragraph (4) of subdivision (a) of Section 16501. The agency shall document the rationale for any inconsistencies between the case plan and the child and family team recommendations." (§ 706.6, subd. (b)(2).)
The CFT is "a group of individuals who are convened by the placing agency and who are engaged through a variety of team-based processes to identify the strengths and needs of the child or youth and his or her family, and to help achieve positive outcomes for safety, permanency, and well-being." (§§ 16501, subd. (a)(4), 706.6, subd. (b)(1)-(2).) The CFT process "shall engage the child or youth, the child's family, and other people important to the family or to the child or youth . . . ." (§ 16501, subd. (a)(4)(B)(i).) "[W]hen appropriate," the CFT shall include representatives who provide formal supports to the youth, including but not limited to the caregiver; the placing agency caseworker; a county mental health representative; a representative from the regional center if the youth is eligible for regional center services; the youth's Court-Appointed Special Advocate, if one has been appointed, unless the youth objects; and, a representative of the youth's tribe or Indian custodian, as applicable. (Id., subd. (a)(4)(B)(i)(I)-(IV).) "As appropriate, the child and family team also may include other formal supports," including, if placement into a short-term residential therapeutic program or a foster family agency that provides treatment services has occurred or is being considered, a licensed mental health professional. (Id., subd. (a)(4)(B)(ii).)
2. Analysis
Defendant's argument that the court violated section 706.6 does not support reversal of the disposition order.
First, defendant's lack of timely objection to the failure to convene a CFT meeting prior to the dispositional report, hearing, or order forfeited this challenge. (In re Christopher S. (1992) 10 Cal.App.4th 1337, 1344; People v. Smith (2001) 24 Cal.4th 849, 852; In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) When the juvenile court convened the disposition hearing, both parties acknowledged receipt of the dispositional report, and defendant did not object to the report or to the court's subsequent disposition order on the grounds that a CFT meeting had not been convened. Instead, only after the parties submitted the matter and the court issued its disposition order did defendant's counsel argue that a future CFT meeting should be convened to discuss placing defendant with another family member.
Defendant did not object despite the fact that his counsel had previously informed the court that defendant sought to avoid group placement and intended to make a home placement recommendation, and despite the fact that defendant's counsel assured the court that she would follow up with probation regarding the home placement recommendation before the disposition hearing.
Defendant argues on appeal that the CFT meeting should have taken place before the disposition hearing, not after that hearing and before the November 6, 2018 placement review as his counsel argued below. The record does not reflect that defendant made any objection to the failure to convene a CFT meeting at the November 6, 2018 placement review hearing.
Next, even if defendant had preserved his appeal, and even assuming a CFT meeting must be convened before the probation officer submits a dispositional report, any error here was harmless. (In re Riva M., supra, 235 Cal.App.3d at pp. 412-413 [assessing claim of failure to comply with certain statutory requirements of the Indian Child Welfare Act for harmless error]; In re Jesusa V. (2004) 32 Cal.4th 588, 624 [a harmless error analysis is generally used when a statutory mandate is not followed].)
Defendant asserts for the first time in his reply brief that the court acted in excess of its jurisdiction by issuing the disposition order. He forfeited this argument by failing to timely raise it and by failing to provide reasoned argument and authority supporting the assertion that the alleged violation of section 706.6 here led to an act in excess of the court's jurisdiction under the Constitution, express statutory declaration, or rules developed by the courts. (In re Jesusa V., supra, 32 Cal.4th at p. 624; see Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061-1062, fn. 7.)
Defendant asserts that harmless error cannot apply because it is impossible to know what the CFT's recommendation would have been. This assertion is exaggerated. The CFT is to engage the youth, the youth's family, and people important to the family or youth to provide input into the youth's placement decision and the services to be provided to the youth. (§ 16501, subd. (a)(4)(A)(i)-(ii), (B)(i).) That input, and the recommendation that defendant remain in his mother's custody that flowed therefrom, was included in the home release plan. The probation department also interviewed defendant and his mother before filing the dispositional report, and it twice attempted to contact a mental health professional at the Seneca program. The juvenile court reviewed the dispositional report, the home release plan, and an overview of the Seneca program. The court also heard testimony from defendant, defendant's mother, aunt, grandmother, grandfather, brother, and a family friend. The court thus had before it precisely the input that would come from the CFT and what it needed to make an informed placement decision.
The record also reflects that the probation department and the court documented the rationale supporting their rejection of the family's home release plan. (See § 706.6, subd. (b)(2).) The probation department reviewed defendant's home release plan, but, given his recent involvement in repeat, serious offenses, it recommended immediate crisis intervention and group home placement rather than family placement. At the disposition hearing, the juvenile court considered defendant's family support and their testimony and recommendation, but, given the serious nature of defendant's crimes and defendant's high risk of reoffending, the court determined that out-of-home placement was appropriate.
Defendant argues in his reply brief that the disposition order should be reversed for lack of input from a licensed county mental health representative or representative from the Children's Home. (§ 16501, subd. (a)(4)(B)(i)(IV), (ii) [the CFT shall include a county mental health representative who provides formal support to the youth "when appropriate," and a licensed mental health representative "as appropriate," where placement in a short-term residential therapeutic program is being considered].) But assuming without deciding that there was error below, we see no prejudice. Defendant claims that placing him in an out-of-home facility with delinquent youths could cause him more harm than good. But defendant had a criminal history starting at age 13, and he committed numerous serious felonies while on felony probation and under his mother's formal supervision. He engaged in this criminal activity despite having access to mental health services and having received other services at the Seneca program for many years. He was a local gang member, he admitted to being influenced by the wrong people, and he had a very high risk of reoffending. He also had impulse control problems and needed therapeutic intervention programs such as those provided at the short-term residential therapeutic program where he was ultimately placed. Moreover, in its December 20, 2018 request that the court approve placement of T.K. at the Children's Home, the Probation Department reported that the Children's Home "offer[ed] individual and family counseling, cognitive behavioral counseling, psychiatric services, and group counseling for a variety of issues"; it further noted that T.K. would "participate in individual, family, and group counseling as well as cognitive behavioral therapy," and would "attend the on-site school daily." The court ordered T.K.'s placement at the Children's Home based on "[a]dequate proof" demonstrating that the Children's Home was a "suitable" place for T.K. On this record, it is not reasonably probable that the court would have decided against out-of-home placement had the CFT meeting occurred with input from a representative of the Children's Home as defendant urges.
Defendant does not provide a record sufficient to show error with respect to his assertion that the CFT meeting should have included a licensed mental health representative from the Children's Home. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [a party challenging a judgment has the burden of showing reversible error by an adequate record].) In October 2018, probation recommended, and the court ordered, defendant's placement in a "suitable family home or group home." On November 6, 2018, probation reported referrals to "ROP [Rites of Passage], DN Associates, and Aaron's Boys Home," and the court approved placement at the Rites of Passage. The court did not approve defendant's placement at the Children's Home until December 24, 2018. Thus, nothing in the record shows that probation was considering placing defendant with the Children's Home of Stockton prior to the disposition hearing.
In re L.S. (1990) 220 Cal.App.3d 1100, overturned on other grounds by People v. Bullock (1994) 26 Cal.App.4th 985, and In re Devin J. (1984) 155 Cal.App.3d 1096, cited by defendant, do not convince us that the disposition order here must be reversed. In In re L.S., at pp. 1102-1103, the appellate court reversed a disposition order rendered without a current social study. The probation officer said that he needed more time to prepare a social study and the minor's attorney argued that such a report was needed before disposition, but the court committed the minor to the California Youth Authority (CYA). The appellate court held, "On this record, without the benefit of a current social study there is no evaluation or insight into defendant's problems, aside from the obvious Health and Safety Code violation. Given the law's concern for rehabilitation of minors, tempered with accountability [citation], it would seem impossible without the benefit of a current social study for the juvenile court to give the required sensitive consideration to all of the factors required to make any commitment, much less a CYA commitment which requires evidence of a probable benefit to the minor and the inappropriateness of less restrictive alternatives." (Id. at p. 1105.) The court held that if a written social study was not filed with the juvenile court before disposition, the disposition order must be reversed. (Id. at pp. 1106-1107.)
In re Devin J., supra, 155 Cal.App.3d 1096, involved a minor who was committed to CYA at a disposition hearing for which the probation officer had prepared a summary memorandum stating that his recommendation had not changed from his prior recommendation advocating commitment to CYA. (Id. at p. 1099.) But the officer's prior recommendation was prepared for a fitness hearing, not a disposition hearing. (Ibid.) Noting the differences between the two hearings and between the requirements for the probation reports for each, the court reversed the minor's order of commitment to CYA because use of the social study prepared for the fitness hearing was prejudicial. (Id. at pp. 1100-1102.)
Unlike in In re L.S. or In re Devin J., the juvenile court here had a current dispositional report with relevant, current input as well as a recommendation of home placement from defendant and his family, even though a formal CFT meeting had not been convened. The juvenile court was thus aware of the relevant underlying facts when it acted. (See In re Melvin J. (2000) 81 Cal.App.4th 742, 754-755 [affirming a disposition order where minor failed to properly appeal the order but also finding the court did not err in conducting a disposition hearing without a copy of the most recent probation report where the court had three prior reports and the probation officer gave an oral update on recent facts], disapproved on other grounds in John L. v. Superior Court (2004) 33 Cal.4th 158, 181, fn. 7.) B. Substantive Due Process
Defendant argues that his out-of-home placement unconstitutionally infringes on his substantive due process right to live with his family because it is not supported by a "compelling necessity." We decline to address this issue as defendant forfeited it by failing to object and ask the juvenile court to apply a compelling necessity standard. "All issues, even those involving an alleged constitutional violation, are subject to the rule of forfeiture, and a defendant's failure to raise the issue before the trial court will generally result in the appellate court's refusal to consider it." (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347, fn. 9; see also In re M.H. (2016) 1 Cal.App.5th 699, 713-714 [declining to address a constitutional argument where, in absence of a complete factual record made in the trial court, it would be imprudent to decide constitutional issues on appeal]; In re Christopher S., supra, 10 Cal.App.4th at p. 1344 [" '[E]ven constitutional rights, including those of a minor in the area of juvenile court procedure, will ordinarily be waived by silence, i.e., by their nonassertion' "].)
Were the argument not forfeited, we would also reject it. Defendant does not cite authority specifically requiring a showing of compelling necessity before a juvenile who has been adjudged a ward of the court for committing a serious felony can be removed from his parent's custody and committed to a short-term residential therapeutic program. Nonetheless, we think it implicit in the juvenile delinquency statutes, which authorize an out-of-home commitment in the juvenile court's discretion in appropriate circumstances (§§ 202, subd. (e)(4), 726, subd. (a)(1)-(3), 727, subd. (a)(1), (4)), that commission of felony offenses involving serious public safety concerns constitutes a compelling necessity.
For the first time in his reply brief, defendant claims that his out-of-home placement violated his right to procedural due process. With this cursory and belated argument, he has forfeited the issue. (Sourcecorp, Inc. v. Shill, supra, 206 Cal.App.4th at pp. 1061-1062, fn. 7 [appellant forfeited his argument on an issue through cursory and belated invocation of the argument in his reply brief]; Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 537 [issue unsupported by cognizable legal argument deemed abandoned].)
Defendant finally briefly asserts that his placement violates California statutes embodying the constitutional protection afforded to the right of families to live as families, citing sections 202, subdivision (a) and 726. This claim has no merit. Section 202 sets forth the general purpose of juvenile law "to provide for the protection and safety of the public and each minor under the jurisdiction of the juvenile court and to preserve and strengthen the minor's family ties whenever possible, removing the minor from the custody of his or her parents only when necessary for his or her welfare or for the safety and protection of the public . . . ." (§ 202, subd. (a).) Under section 726, a ward may not be taken from the custody of a parent unless, after hearing, the court finds one of the following facts: "(1) That the parent or guardian is incapable of providing or has failed or neglected to provide proper maintenance, training, and education for the minor. [¶] (2) That the minor has been tried on probation while in custody and has failed to reform. [¶] (3) That the welfare of the minor requires that custody be taken from the minor's parent or guardian." (§ 726, subd. (a)(1)-(3).) The juvenile court made the requisite factual findings under section 726, subdivision (a)(1)-(3), and defendant does not challenge these findings. His out-of-home placement did not violate sections 202 or 726.
III. DISPOSITION
The juvenile court's disposition order is affirmed.
In his reply brief, defendant asked this court to take judicial notice of the briefing in another appeal before this court, In re A.M., but defendant provided the case number for this appeal. We deny the request. (Rule 8.252(a)(1), Ct. App. First Dist., Local Rules of Ct., rule 6, Requests for judicial notice.)
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.