In re Robert O.

Filed 4/11/07 In re Robert O. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed as modified.

Cannon & Harris and Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Michelle L. Palmer, Deputy County Counsel, for Plaintiff and Respondent.

* * *

Despite the caption, this case is, in substance, neither a juvenile dependency case nor a juvenile delinquency case. In substance, it is a civil liability laches case involving the parent of a juvenile delinquent. Specifically, Darryl O., the father of Robert O., appeals from a judgment for $3,974.64 obtained by the Orange County Probation Department to cover the costs of Roberts stay in juvenile facilities during two periods, (1) May 23, 2004 through October 31, 2004, and (2) September 15, 2005 through September 30, 2005. (Darryl got a good deal on the terms of payment: The court ordered him to make payments at the rate of only $100 a month.)

I. Appealability

We first address the question of appealability, about which we have no choice. (E.g., In re Mario C. (2004) 124 Cal.App.4th 1303, 1307 [We raised this question on our own motion because a reviewing court is without jurisdiction to consider an appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its own motion.].)

Recently, in In re Michael S. ( 2007) 147 Cal.App.4th 1443, this court had occasion to explain that juvenile court orders (or, as here, judgments[1]) imposing vicarious civil liability incurred by parents because of their minor children are appealable -- not as a matter of the appealability statutes in the Welfare and Institutions Code, but as a matter of the statute governing normal civil appeals, Code of Civil Procedure section 904.1, subdivision (a). However, Michael S. involved a juvenile court order made pursuant to Welfare and Institutions Code section 730.7, which expressly incorporated certain Civil Code provisions by reference, so this court could validly conclude that the Welfare and Institutions Code statute itself contemplated appealability under the normal Code of Civil Procedure. In the case before us, however, the order from which Darryl appeals was made pursuant to section 903 of the Welfare and Institutions Code,[2] and neither section 903, nor section 903.45 which provides more details about section 903, has any incorporation of rules of normal Civil Code liability as did section 730.7 in Michael S.

Nevertheless, we conclude that the judgment from which Darryl appeals is appealable, because of the maxim that, all else being equal, substance trumps form. (See Civ. Code,  3528.)

An order for reimbursement under section 903 is an order relating to child support arrears, because it seeks the costs of the minors support during a period of commitment to a juvenile institution. (See  903, subd. (a) [The father, mother, spouse or other person liable for the support of a minor . . . shall be liable for the reasonable costs of support of the minor while the minor is placed, or detained in, or committed to, any institution or other place pursuant to Section 625 or pursuant to an order of the juvenile court.]; cf. In re Ricky H. (1970) 2 Cal.3d 513, 520.[3])

The nature of section 903 as a civil support reimbursement statute is underscored by noting the statutes history. In In re Jerald C. (1984) 36 Cal.3d 1, the Supreme Court struck down an earlier version of section 903, as a violation of equal protection, because it saddled parents of incarcerated persons with the costs of incarceration qua the protection of society from the confined person. (In re Jerald C., supra, 36 Cal.3d at p. 7.) But four members of the Jerald C. court, in what the Supreme Court would later acknowledge was mislabeled a concurring opinion by Justice Kaus (it was really the majority opinion[4]), distinguished between costs of confinement qua confinement from the costs of support qua child support. According to this true majority in Jerald C., the costs of confinement in the interests of the public safety might not be fastenable on parents, but the costs of support as such could still be imposed. Wrote Justice Kaus: My basic theory is this: it is undeniable that equal protection principles do not permit us to saddle a tiny segment of the public with the cost of protecting society from persons who, for one reason or another, must be confined in institutions. Yet if such a person has someone who is legally responsible for supporting him with the necessaries of life -- food, clothing, shelter -- I see no reason why the state cannot charge the responsible party for whatever he saves by not having to support the person on the outside. (In re Jerald C., supra, 36 Cal.3d at p. 11 (conc. opn. of Kaus, J.), italics added.) In the wake of an earlier (then withdrawn upon grant of rehearing) version of the Jerald C. opinion, the Legislature re-wrote section 903 to excise from it costs of incarceration, treatment, or supervision as distinct from support (see In re Jerald C., supra, 36 Cal.3d at p. 14 (conc. opn. of Kaus, J.)), and as re-written the statute passed constitutional muster in County of San Mateo v. Dell J., supra, 46 Cal.3d 1236.

As a de facto final civil judgment for child support arrears, an order or judgment is of course appealable under the Code of Civil Procedure. (See Code Civ. Proc.,  904.1, subd. (a)(1) [An appeal . . . may be taken from any of the following: [] From a judgment . . . .].) And none of the exceptions stated in the Code of Civil Procedure apply: A section 903 reimbursement order is not an interlocutory judgment, a judgment of contempt, or a judgment granting or denying a writ of mandate. (See ibid.) We therefore proceed to the merits.[5]

II. The Merits

A. The May-October 2004 Period

Statutory authority for the juvenile court to make orders or judgments against the parents of juvenile offenders who are housed and fed in juvenile facilities is found in both sections 902 and 903. Section 902 basically provides that the juvenile court may impose liability on the parents of a ward of the court for the wards support and maintenance.[6] Section 903, subdivision (a) (quoted in full in due course) more plainly imposes liability, while the remainder of the statute elaborates on the terms and conditions of that liability.

Section 903, subdivision (c), and section 903.45, subdivision (b), condition parental liability on ability to pay.[7] However, this is not an ability to pay case. We thus do not need, in this opinion, to determine whether, for example, the amount that Darryl spends on cable television or a large donation to a drug rehabilitation facility in Mexico in 2004 constitutes substantial evidence of ability to pay under sections 903 and 903.45. Even though the countys respondents brief devotes considerable attention to the details of Darryls financial situation, in Darryls opening brief the actual argument is more in the nature of an estoppel or laches. The exposition of the argument is going to require some further elaboration:

Robert O. had been in trouble with the law for reasons other than those leading to his May-September 2005 stay in juvenile facilities. (The exact nature of his numerous run-ins with the law -- with one important exception, dealt with in part II. B below -- is not worth going into for purposes of this opinion.) And in March 2003 -- that is, involving events unrelated to Roberts future incarceration in the period May-October 2004 -- the county financial officer formally found (and the finding was memorialized in a minute order) that Darryl and his wife did not have the financial ability to pay for Roberts stays in county facilities based on crimes adjudicated in 2002 and 2003. Robert was also placed on probation.

The May-October 2004 stay was the result of probation violations found in May 2004 (though the stay was later extended as the result of petitions alleging vandalism were filed in August 2004). But it was not until January 18, 2006 that a county officer gave notice of a hearing, scheduled for late January 2006, to hold Darryl responsible for the May-October 2004 stay. And it was not until May 2006 that the hearing was actually held, and the court made its finding that Darryl had the ability to pay $100 a month on a debt of about $4,000. (Darryl was represented at the hearing by an attorney from the juvenile defenders office.)

To the degree that Darryls opening brief argues that the March 2003 finding of the financial officer was per se preclusive of the courts finding in May 2006 concerning the May-October 2004 stay, the argument is borderline frivolous. A finding that one does not have the ability to pay in March 2003 to pay a certain sum is not an implied finding that one does not have the ability to pay a different sum in May 2006. Abilities to pay can easily change over the course of three years. (The opening brief lacks any authority for any notion to the contrary.)

Rather, we perceive the real argument (an argument, to be sure, much better articulated in the reply brief[8]) to be this: Subdivision (b) of section 903.45 requires that the county complete a financial evaluation and seek reimbursement within a reasonable time after disposition -- disposition here being in May 2004 and the financial evaluation and petition coming more than a year and one half later in January 2006, which Darryl suggests is not a reasonable time.

That argument, however, is unavailing because of the actual text of section 903.45, subdivision (b). That text is: In any county where a board of supervisors has designated a county financial evaluation officer, the juvenile court shall, at the close of the disposition hearing, order any person liable for the cost of support, pursuant to Section 903, the cost of legal services as provided for in Section 903.1, or probation costs as provided for in Section 903.2, or any other reimbursable costs allowed under this code, to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs; and if the responsible person is not present at the disposition hearing, the court shall cite him or her to appear for such a financial evaluation. In the case of a parent, guardian, or other person assessed for the costs of transport, food, shelter, or care of a minor under Section 207.2 or 903.25, the juvenile court shall, upon request of the county probation department, order the appearance of the parent, guardian, or other person before the financial evaluation officer for a financial evaluation of his or her ability to pay the costs assessed.

The statute does not say that the county forfeits its right to seek reimbursement if the juvenile court forgets to order the parent of juvenile delinquent to appear before the financial evaluation officer for a financial evaluation of his or her ability to pay those costs at the detention hearing. Arguably, the most that could be teased out of the statute is the idea that if a parent can show prejudice from any delay in being hauled before a financial evaluation officer, the county might be barred by laches. (See Conti v. Board of Civil Service Commissioners (1969) 1 Cal.3d 351, 359 [The defense of laches requires unreasonable delay plus either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay. (footnotes omitted.)].) Darryl makes no attempt to show prejudice here, which would be rather difficult under the circumstances anyway. Darryl operates a landscaping business, and he points to nothing that indicates he took any action in response to the March 2003 finding, and certainly he does not contend that he increased his income because of the delay. Indeed, his testimony at the hearing was that he was losing money from his business (though that testimony was disbelieved by the trial court).

B. The September 2005 Period

Roberts second period of incarceration involved a nasty domestic incident in which Darryl himself was victim. Under subdivision (e) of section 903, costs cannot be assessed against a parent if the parent was himself or herself a victim of the crime. (Notwithstanding subdivision (a), the father, mother, spouse, or other person liable for support of a minor shall not be liable for the costs of support of that minor . . . if the minor is placed or detained because he or she is found by a court to have committed a crime against that person.) The county concedes in its respondents brief that the $382.40 billed for the second period of incarceration, September 15 through 30, 2005, was inadvertently charged to Darryl and the amount should be subtracted from the $3974.64 judgment. We will use our own power to amend the judgment to make that part of our disposition of this case.

III. Disposition

The judgment of the juvenile court providing that Darryl O. is to pay $3,974.64 to the county is hereby modified to reduce the sum owed by him to $3,592.24. As modified, the judgment is affirmed. Because this court (probably erroneously) initially processed this appeal as one from a juvenile delinquency order for purposes of filing fees and appointment of counsel on appeal, we will be consistent with that prior processing and conclude that this is not a case where any cost award is appropriate.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

IKOLA, J.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

[1] The order appealed from in this case is framed in terms of a judgment: Court finds father liable and orders judgment for petitioner [Orange County Probation Department] in the amount of $3,974.64.

[2] All further undesignated statutory references in this opinion will be to the Welfare and Institutions Code.

[3] Technically, Ricky H. involved section 903.1, which makes parents liable for legal costs rendered to a minor in juvenile court proceedings. Its statement that The instant case, on the other hand, presents questions regarding the extent of the parents obligation to support their minor children, an obligation which did exist at common law (In re Ricky H., supra, 2 Cal.3d at p. 520) applies a fortiori to a countys provision to a minor of bed and board.

[4] See County of San Mateo v. Dell J. (1988) 46 Cal.3d 1236, 1241, fn. 5 [As most have recognized, the Jerald C. opinion, from the standpoint of form, was an anomaly; the lead opinion by Justice Broussard having garnered only three votes, while the concurring opinion by Justice Kaus garnered a majority of four votes.].) Justice Broussard, author of the ostensible lead opinion, acknowledged as much in his own concurrence in County of San Mateo. (See County of San Mateo v. Dell J., supra, 46 Cal.3d at p. 1255 (conc. opn. of Broussard, J.) [insofar as Justice Kauss opinion disagrees or goes beyond the lead opinion, it is the majority view].)

[5] We do not address in this case the question of whether Darryl is entitled to taxpayer-paid counsel on appeal, or the related question of whether this court should have waived the normal filing fee, given that the substance of the case is civil.

[6] Sections 900 and 901 set up a system whereby the county board of supervisors establishes a certain minimum amount for the wards care comes out of the county treasury ( 900). Section 902 introduces the idea of making other entities pay for any excess required. Section 902 provides in its entirety: If it is found that the maximum amount established by the board of supervisors of the county is insufficient to pay the whole expense of support and maintenance of a ward, dependent child, or other minor person, the court may order and direct that such additional amount as is necessary shall be paid out of the earnings, property, or estate of such ward, dependent child, or other minor person, or by the parents or guardian of such ward, dependent child, or other minor person, or by any other person liable for his support and maintenance, to the county officers designated by the board of supervisors who shall in turn pay it to the person, association, or institution that, under court order, is caring for and maintaining such ward, dependent child, or other minor person.

[7] In pertinent part, section 903, subdivision (c) provides: It is the intent of the Legislature in enacting this subdivision to protect the fiscal integrity of the county, to protect persons against whom the county seeks to impose liability from excessive charges, to ensure reasonable uniformity throughout the state in the level of liability being imposed, and to ensure that liability is imposed only on persons with the ability to pay. In evaluating a familys financial ability to pay under this section, the county shall take into consideration . . . .

Section 903.45, subdivision (b) provides in pertinent part: If the county financial evaluation officer determines that a person so responsible has the ability to pay all or part of the costs, the county financial evaluation officer shall petition the court for an order requiring the person to pay that sum to the county. . . .

[8] Arguments made for the first time in reply briefs are normally waived. (E.g., Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766 [We refuse to consider the issues raised by defendant in his reply brief which were not raised in his opening brief.].) We are giving Darryl the extreme benefit of the doubt to proceed on the assumption that the argument regarding the language of section 903.45 can be teased out of his opening, as distinct from his reply, brief.