Filed 10/18/17 In re J.O. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John W. Parker, Judge. (Retired judge of the San Joaquin Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Anthony Da Silva, and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant J.O. (minor) has a history of violating the terms and conditions of his informal and formal probation. Following minor’s repeated violations, the juvenile court ordered minor placed outside the home in a family-like setting for a period of six to nine months. Minor’s sole contention on appeal is that the juvenile court abused its discretion in ordering minor placed outside of the home. We find no abuse of discretion, and affirm the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

Minor entered the juvenile court system at the age of 12 in October 2013, after he committed a battery on a school employee engaged in the performance of her duties. On December 19, 2013, minor was placed on informal probation.

However, minor violated the terms and conditions of his informal probation by failing to follow his mother’s rules, refusing to go to school, and using marijuana. In addition, minor continued to have problems following directions at school, listening, and being disrespectful. Minor also refused to attend his counseling services. Minor admitted to using marijuana at least twice a week, and having conflict with his mother. Minor acknowledged that he had anger issues and had been hospitalized twice for depression and anger. Minor believed that the only way his behavior could improve is if he lived with his stepmother or his paternal uncle.

On April 17, 2014, minor’s informal probation was revoked, and on May 15, 2014, the juvenile court declared minor a ward of the court and placed minor on formal probation in the custody of his mother on various terms and conditions.

On June 3, 2014, minor’s mother reported that minor left home without permission and appeared to be under the influence of a controlled substance.

On June 12, 2014, the probation officer conducted a home visit with minor and his mother. Minor’s mother stated that minor had a poor attitude and refused to follow her directives. Minor admitted to using marijuana. The probation officer admonished minor regarding his attitude and ordered minor to complete a drug test.

On June 17, 2014, minor and his mother attended an office visit at the probation department. Minor’s mother again reported that minor leaves the home without permission and returns after curfew. Minor also admitted to using marijuana and agreed to drug test. Minor’s drug result was positive for marijuana.

On June 26, 2014, minor was detained and cite-released by police after he was found to be a passenger in a stolen vehicle.

On August 19, 2014, minor punched another student at school. Minor’s teacher reported that minor had assaulted another student during class previously and that minor’s behavior was consistently poor. The probation officer recommended minor be ordered to serve 30 days in custody to allow minor to have time to reflect on his behavior, attend school, and participate in counseling.

On September 17, 2014, minor was arrested for violating curfew. On September 19, 2014, a probation violation petition was filed, alleging minor violated the terms of his probation by punching another student, failing to obey his mother and cooperate with a plan of rehabilitation, and failing to return home by curfew.

On September 22, 2014, minor admitted to violating curfew as alleged in the petition. In return, the remaining allegations were dismissed. The juvenile court thereafter continued minor as a ward of the court, maintained minor on probation in the custody of his mother, and ordered minor to serve 15 days in custody.

On March 16, 2015, the Department of Children and Family Services (CFS) removed minor from his home and placed him in a group home due to suspected domestic violence, caretaker incapacity, and physical abuse. Minor was declared a dependent of the court under Welfare and Institutions Code[1] section 300, subdivision (b), on April 9, 2015, due to minor’s mother’s substance abuse and neglect, domestic violence in the home, and his mother’s inability to control minor’s delinquent behavior.

Approximately one month later, on May 14, 2015, a subsequent section 602, subdivision (a) petition was filed alleging minor committed criminal threats (Pen. Code, § 422; count 1), violating another’s civil rights (Pen. Code, § 422.6, subd. (a); count 2), and resisting a police officer (Pen. Code, § 148, subd. (a)(1); count 3) while residing in his group home.

While in juvenile hall, minor’s behavior was described as poor. He failed to follow directives, displayed negative peer interactions, incited other youths to violence, and was involved in a physical altercation with another youth.

On May 27, 2015, minor admitted count 1 of the subsequent petition after the People reduced that count to a misdemeanor. In return, the remaining counts were dismissed. The juvenile court thereafter continued minor as a ward of the court, ordered minor to serve 30 days in juvenile hall, and placed him in the custody of CFS.

On June 19, 2015, minor admitted to using marijuana. On July 5, 2015, minor left his group home without permission and failed to return.

On July 7, 2015, a warrant was issued for minor’s arrest, and a probation violation petition was filed.

Minor’s whereabouts remained unknown until his arrest on September 3, 2015. The following day, on September 4, 2015, minor admitted leaving his group home without permission. In return, the People dismissed the remaining allegation with the stipulation it could be considered in the preparation of a report for purposes of disposition and restitution.

Minor reported that he ran away from his group home because he was not getting along with the other residents, and believed he would be caught up in bigger problems. While an absconder for two months, minor did not attend school, was homeless, used marijuana and alcohol, and panhandled to pay for the marijuana and alcohol. In addition, while in juvenile hall, minor’s behavior continued to be poor. He had trouble following simple directives, displayed serious anger issues, and was disrespectful to staff.

On September 21, 2015, the juvenile court continued minor as a ward of the court, ordered minor to serve another 30 days in juvenile hall, and maintained him in the custody of CFS.

On February 26, 2016, minor attempted to flee from an officer while driving a stolen vehicle, and eventually came to a stop after he struck a curb disabling the vehicle.

On March 1, 2016, a subsequent section 602, subdivision (a) petition was filed, alleging minor unlawfully took or drove a vehicle (Veh. Code, § 10851, subd. (a); count 1), received a stolen vehicle (Pen. Code, § 496d, subd. (a); count 2), and resisted a peace officer (Pen. Code, § 148, subd. (a)(l); count 3). The following day, minor admitted to unlawfully taking or driving a vehicle as alleged in count 1. In return, the remaining counts were dismissed.

The probation officer reported that before minor’s current offense, minor and his mother were participating in services through the probation department and CFS. Staff at juvenile hall reported that minor had been doing well overall and that he had minor behavioral issues, but not to the level of requiring physical intervention. Minor had been respectful towards staff and was participating in school and services. The probation department was not opposed to minor being placed in the custody of his mother and CFS. The social worker was in agreement with the probation officer’s recommendation of continuing minor in the custody of his mother on dual status with CFS as the lead agency.

On March 16, 2016, the juvenile court continued minor as a ward of the court in the custody of CFS, and ordered minor to serve 46 days in juvenile hall. After his time in juvenile hall, the juvenile court ordered minor to be released to the custody of his mother or CFS.

On June 10, 2016, another probation violation petition was filed, alleging minor violated the terms and conditions of his probation by violating curfew, failing to obey his mother, failing to report to his probation officer as directed, and failing to attend school as directed.

On June 13, 2016, minor admitted to violating curfew. In return, the People dismissed the remaining allegations with the stipulation they could be considered in the preparation of a report for purposes of disposition and restitution. Minor was thereafter continued as a ward of the court and ordered to serve another 30 days in juvenile hall before being released to the custody of his mother.

While in juvenile hall, minor continued to be incorrigible. He failed to follow staff directives, was disrespectful towards staff, yelled, banged on tables during free time, called staff names, tossed food across the room, had a messy room, and threatened staff. In addition, on June 24, 2016, during a verbal dispute with another youth over a basketball, minor punched the other youth in the face three to four times with “clinched fists,” causing the other youth to sustain chin lacerations.

On June 30, 2016, another subsequent section 602, subdivision (a) petition was filed, alleging minor committed felony battery causing serious bodily injury to another. (Pen. Code, § 243, subd. (d).)

On July 1, 2016, the People amended the subsequent petition to add the offense of misdemeanor battery (Pen. Code, § 242). Minor thereafter admitted to that added offense. In return, the felony battery charge was dismissed and the juvenile court set minor’s maximum time of juvenile confinement at four years. The matter was thereafter continued for a dispositional hearing.

The probation officer recommended that minor be placed outside the home in a family-like setting. The probation officer noted that minor’s home was unstable and chaotic, that minor’s mother had little to no control over minor, and that minor had not attempted to abide by the terms and conditions of probation. The probation officer also reported that minor had been provided with services but that minor had failed to take advantage of those services. Minor admitted to smoking marijuana and reported he would continue to smoke marijuana while on probation. Minor also reported drinking alcohol, smoking methamphetamine, and experimenting with cocaine. Minor’s mother reported that minor had issues controlling his temper, that minor was out of control, and that minor failed to follow her rules. Minor’s mother further stated that minor was disrespectful, a bad influence on his younger brothers, did not attend school, and came home after curfew. Minor’s mother believed minor had negative friends in his life, and acknowledged minor’s drug use. Due to minor’s negative behavior, the probation officer believed minor was putting his safety and the safety of the community at risk. The probation officer opined minor required placement in a structured setting where minor could be taught and expected to follow rules, participate in structured activities, attend school daily, and receive counseling to address his substance abuse, mental health, defiance, family reunification, and academic issues.

The contested dispositional hearing was held on August 2, 2016. At that time, minor’s probation officer Rodriguez testified. Rodriguez had been minor’s probation officer since May 10, 2016, and acknowledged that her previous disposition recommendation had been for 30 days in custody. Regarding the most recent petition, Rodriguez was concerned because, while minor admitted the allegations and took responsibility for his actions, he showed little remorse. Rodriguez also acknowledged that minor’s prior out-of-home placement was due to parental neglect and that minor and his mother wanted minor to return home so they could work on the family relationship. Both minor and his mother desired family counseling and other services to assist in fostering their relationship. However, minor had failed to appear at an appointment prior to June 2016 to discuss his counseling options. Rodriguez, however, acknowledged that minor appeared committed to abiding by his school requirements.

Rodriguez believed minor had not shown the growth necessary for home placement because minor had shown little or no remorse for his actions and remained a danger to himself by disregarding his mother’s directives, violating curfew, and interacting negatively with peers. Rodriguez also opined that minor showed no respect for probationary rules. Rodriguez believed minor’s history showed that juvenile probation was not working for minor and he therefore required more intense supervision. The probation department had tried but failed through the following efforts to eliminate the need to remove minor from his home: (a) custodial services; (b) informal probation; (c) formal probation; (d) intensive supervision; (e) participation in a probation sponsored class; (f) referral to counseling; and (g) referral to community service. In addition, minor’s fights in juvenile hall demonstrated his worsening behavior.

Rodriguez acknowledged that minor’s mother wanted minor home, but his mother also said minor was out of control, would not follow any rules she set, and interacted with negative influences. Rodriguez noted that minor admitted to drinking alcohol and using illegal substances and was troubled by the fact that minor did not believe he had a substance abuse problem. Minor also reported that he did not trust anyone with a badge.

Rodriguez believed that an out-of-home placement in a more structured setting and greater supervision would benefit minor because minor could receive the needed counseling services, educational support, anger management training, and substance abuse training. Out-of-home placement would also remove minor from negative peer associations and make it more likely that he would obey curfew. Rodriguez noted that once minor was placed outside the home, he could get help for substance abuse, meet his educational needs, address his health needs, get evaluated for psychological issues, and receive needed medication and counseling.

Following argument and statements from minor and his mother, the juvenile court continued minor as a ward of the court and ordered minor placed outside the home in a family-like setting for a period of six to nine months.

On August 8, 2016, minor filed a timely notice of appeal.

III

DISCUSSION

Minor argues the juvenile court abused its discretion in ordering minor placed outside his home. We disagree.

We review a placement decision only for abuse of discretion and will indulge all reasonable inferences to support the decision of the juvenile court. (In re Asean D. (1993) 14 Cal.App.4th 467, 473.) An appellate court will not lightly substitute its decision for that of the juvenile court and the decision of the court will not be disturbed unless unsupported by substantial evidence. (In re Robert H. (2002) 96 Cal.App.4th 1317, 1330.) When determining whether there was such substantial evidence, “we must examine the record presented at the disposition hearing in light of the purposes of the Juvenile Court Law.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)

“The juvenile court’s goals are to protect the public and rehabilitate the minor.” (In re Kacy S. (1998) 68 Cal.App.4th 704, 711.) Section 202, subdivision (b), thus provides: “Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter. . . . When the minor is no longer a ward of the juvenile court, the guidance he or she received should enable him or her to be a law-abiding and productive member of his or her family and the community.”

Section 726, subdivision (a), provides that “no ward or dependent child shall be taken from the physical custody of a parent or guardian, unless upon the 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.”

Section 727.1, subdivision (a), provides: “If the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727, the decision regarding choice of placement . . . shall be based upon selection of a safe setting that is the least restrictive or most family like, and the most appropriate setting that meets the individual needs of the minor and is available, in proximity to the parent’s home, consistent with the selection of the environment best suited to meet the minor’s special needs and best interests. The selection shall consider, in order of priority, placement with relatives, tribal members, and foster family, group care, and residential treatment pursuant to Section 7950 of the Family Code.”

The statutory scheme guiding the juvenile court in its treatment of juvenile offenders “ ‘ “ ‘contemplates a progressively restrictive and punitive series of disposition orders in cases such as that now before us—namely, home placement under supervision, foster home placement, placement in a local treatment facility and, as a last resort, Youth Authority placement.’ ” ’ ” (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.) However, “less restrictive placements do not actually have to have been tried.” (Ibid.) “f there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.” ([i]Ibid.) Reversal is unwarranted if there is “some evidence to support the judge’s implied determination that he sub silentio considered and rejected reasonable alternative dispositions.” (Ibid.)

The placement decision here did not constitute an abuse of discretion, contrary to minor’s assertion. The record shows that the juvenile court considered less restrictive alternatives, namely home supervision, before ordering minor placed in a family-like setting outside the home. The juvenile court here clearly considered and reasonably rejected a disposition in which minor would remain in his family home. Minor’s record is replete with evidence that minor’s mother was unable to properly supervise minor if the juvenile court allowed minor to remain in her custody. In fact, minor’s mother acknowledged that she was unable to control minor and that minor continued to fail to follow her rules. Indeed, minor had not followed his mother’s directives or the terms of his probation since being placed on informal probation at the age of 12 in 2013. By the time of the most recent dispositional hearing in August 2016, minor was 15 years old and still refusing to abide by the terms and conditions of his home supervision, despite having many opportunities to correct his behavior while in juvenile hall custody. As minor’s probation officer noted, minor still had not shown growth, even after being provided with services and numerous opportunities during home supervision. Of further concern was minor’s drug use, minor’s mother’s inability to control minor’s drug use, and minor’s negative influence on his younger brothers. Furthermore, minor’s mother was still in the process of combating her own drug problems and had recently reunified with her children.

Minor’s probation officer believed that a more controlled, structured environment and greater supervision would benefit minor because minor could receive the necessary psychological evaluation, health care services, counseling services, medication, educational support, anger management training, and substance abuse training. Minor’s probation officer also noted that placement outside the home would get minor away from negative peer associations, and make it more likely that he would obey curfew.

Minor argues that the juvenile court’s out-of-home placement order was based upon an insufficient record because his probation officer last interviewed him on July 1,

2016, and did not review his most recent performance in school before the contested August 2, 2016 dispositional hearing. However, the probation department’s August 2, 2016 report included an entry that minor earned 19 of 20 available points at his school, an entry minor’s trial counsel repeatedly referenced during argument in support of minor’s placement in his mother’s custody. In addition, that same August 2, 2016 probation report described minor’s progress in juvenile hall as poor. In any event, despite prior efforts in juvenile hall since 2013, the record is replete with evidence showing minor had not shown growth, except perhaps in school. Minor had continued to fail to follow directives at home and while in custody, violate curfew, interact poorly with peer and staff while in custody, display anger issues, have a poor attitude, threaten staff, and call staff derogatory names.

Minor also contends the juvenile court unreasonably presumed he could not maintain the strong academic achievement and good behavior reflected in his most recent juvenile hall assessment, ignored evidence he ran away from a group home in order to go home, discounted the possibility he would more likely complete his classes if placed with a family member or in foster care, and deferred the inevitable building of trust that must occur between mother and son. The record belies these assertions. Minor’s most recent juvenile hall assessment, as set forth in the August 2, 2016 probation report summarized above, discussed the behavioral problems minor continued to present. The juvenile court reasonably concluded from the record before it that minor had not shown that either he or his mother could adequately control his behavior, despite their mutual desire minor be returned to his mother’s custody. The juvenile court acted within its discretion by ordering a reunification plan designed to help both minor and his mother achieve that result within the shortest reasonable time.

Even if the probation officer had not spoken to minor and his mother for a month prior to the August 2, 2016 contested dispositional hearing, as minor claims, it is clear from the past supervision of minor, his conduct, and the current circumstances in minor’s home, that the juvenile court properly exercised its discretion in ordering minor not to be placed in his mother’s custody. The evidence in this case shows that home supervision under minor’s mother’s custody had not achieved its dual purpose of transforming minor into a law-abiding and protective member of his family and community while providing for the protection and safety of the public. (§ 202, subds. (a), (b), & (d).)

Given the foregoing evidence, particularly the evidence of minor’s repeated past failures during home supervision, minor’s mother’s inability to control minor, and minor’s poor conduct while in juvenile hall, the juvenile court reasonably concluded that minor required out-of-home placement in a family-like setting.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.