In re Shyheim J.
Filed 10/10/07 In re Shyheim J. CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
In re SHYHEIM J., a Person Coming Under The Juvenile Court Law. | |
THE PEOPLE, Plaintiff and Respondent, v. SHYHEIM J., Defendant and Appellant. | F052199 (Super. Ct. No. 06CEJ01250-1) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Ralph L. Putnam, Judge.
Han Tran, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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It was alleged in an amended juvenile wardship petition (Welf. & Inst. Code,
602)[1]that appellant Shyheim J., a minor, committed battery with infliction of serious bodily injury (Pen. Code, 243, subd. (d)) and sexual battery (Pen. Code,
243.4, subd. (e)(1)). At the jurisdiction hearing the court found both allegations true. At the disposition hearing, the court adjudged appellant a ward of the court; found that appellants welfare required that custody be taken from appellants parents; placed appellant under the supervision of the probation officer until December 15, 2007; and ordered that appellant reside in the home of his parents.
On appeal, appellant contends the court ordered appellant removed from the physical custody of his parents and, in doing so, acted in excess of its statutory authority. We will strike the courts order removing appellants physical custody from appellants parents, and affirm the judgment as modified.
PROCEDURAL BACKGROUND[2]
At the disposition hearing, the court stated as follows: The welfare of the minor requires that the custody be taken from the minors parent or guardian. The minor is adjudged a ward of the Juvenile Court under the supervision of the probation officer until December 15th, 2007. The [minor is] to be temporarily removed from the custody of the parents. However, the minor is to be placed back in the parents home. Im not going to follow the recommendation that he serve further time. Minor is to be released to his parents today.
DISCUSSION
Appellant contends the court, in ordering appellant placed in the home of his parents after it found that appellants welfare required that custody be taken from his parents, acted in excess of its statutory authority, and therefore this court should strike the order removing appellant from his parents custody. We agree.
At the outset, we clarify what is not at issue. Appellant does not challenge the portion of the courts disposition order placing him in his parents home. He argues that the placement order should stand, but the custody order must be stricken. The People also do not contend the court erred in ordering home placement.
The People also do not dispute that an order placing appellant in his parents home is irreconcilable with a finding appellants welfare requires that his physical custody be taken from appellants parents. The People take issue with the major premise of appellants claim, i.e., the proposition that the court ordered appellants physical custody taken from his parents. The People argue that the court, in ordering appellant removed from the custody of the parents, was referring only to legal custody. The record, however, belies this interpretation.
Section 726, subdivision (a) provides, in relevant part, that in all cases in which a minor is adjudged a ward of the court, no ward . . . shall be taken from the physical custody of a parent or guardian unless the court makes at least one of three enumerated findings, including the following: (3) That the welfare of the minor requires that custody be taken from the minors parent or guardian. (Italics added.)[3] The court here made one of the findings required for the removal of physical custody from appellants parents. ( 726, subd. (a)(3).) If the court had not been removing physical custody from appellants parents, there would have been no reason to make that finding. Moreover, [i]nherent in a section 602 wardship is the continuing jurisdiction over the minor by the court which can place him in the home of his parents under probation supervision. (In re Wayne J. (1979) 97 Cal.App.3d 776, 782.) And here, the court placed appellant under the supervision of the probation officer. Thus, it was not necessary to remove legal custody from appellants parents in order to place appellant in their home under the supervision of the probation officer. On this record, the most reasonable interpretation of the courts disposition order is that the court ordered removal of physical custody from appellants parents.
We turn now to the merits of appellants claim. We find instructive In re Damonte A. (1997) 57 Cal.App.4th 894. In that case, a juvenile dependency proceeding, the juvenile court declared two minors to be dependents in the care and custody of the Department of Health and Human Services (DHHS) and placed the minors in the home of their mother. However, [i]n making this order, the court found by clear and convincing evidence that there is a substantial danger to the children and their welfare, physical health or, would be if they are returned on a permanent basis to their mother, and there are no reasonable means by which their physical health can be protected without the removal from parental care and custody, and placement of the minors in the care and custody of the Department of Health and Human Services and temporarily residing in the home of their mother . . . . (Id. at p. 897.)
The appellate court, after reviewing the statutory procedure for disposition of a dependent minor, held: Nowhere in the statutes or rules is there authorization for the court to declare a dependency, order the dependent child removed from the physical custody of its parents, order the care, custody, control and conduct of the minor to be under the supervision of the probation officer and then direct the probation officer to temporarily place the minor back into the home from which it was removed. The statutes contemplate that removal of the child from the physical custody of the parents will result in some other person or entity having physical custody of the child and that the child will be placed in an appropriate home other than that of the parent who had custody at the time the petition was filed. Accordingly, as it lacks a statutory basis, the juvenile courts removal order is invalid. (In re Damonte A., supra, 57 Cal.App.4th at p. 899, italics added; accord, Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, 161-162; In re Andres G. (1998) 64 Cal.App.4th 476, 480-481.)
We have reviewed the statutory scheme that controls delinquency proceedings, and we conclude a similar result should obtain here. We recognize that one of the placement alternatives available where, as here, the court orders a minor placed under the supervision of the probation officer, is placement in the home of a relative. ( 727, subd. (a)(1).) However, only reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor are statutorily authorized. ( 727, subd. (a), italics added.) In our view, it is not reasonable, and therefore not statutorily authorized, for a court to conclude, as the parties agree the court did here, that placement with appellants parents was appropriate, yet order that physical custody be taken from the parents.
We note also that the court in Damonte A. found that the disposition order at issue there permits DHHS to circumvent the requirement of [former] section 361, subdivision (b) that removal from the parents physical custody can be made only on a showing by clear and convincing evidence that removal is necessary to avert a substantial danger to the physical health or well-being of the minor.[4] (In re Damonte A., supra, 57 Cal.App.4th at p. 899.) Because the juvenile court in that case took physical custody from the parents, in the future DHHS could simply remove the minor from the home without having to make the required statutory showing, regardless of whether circumstances at the time of such removal justified that action. The court found this unacceptable: We see no reason why DHHS should not be required to file a petition seeking a change of custody, if there is a factual basis, meeting the clear and convincing evidentiary standard rather than being able to effect a removal subject only to a subsequent review on motion of the parent. Had the Legislature wished to extend to the court unfettered discretion to fashion placement practices such as this, it would not have described the permissible options with such specificity in the several relevant code sections. (Id. at p. 900; accord, Savannah B. v. Superior Court, supra, 81 Cal.App.4th at p. 162; In re Andres G., supra, 64 Cal.App.4th at p. 481.)
Similarly, in the instant case, because the court has made an order removing appellant from his parents physical custody, the probation officer could, at some point in the future, remove appellant from the parents home without first making the showing statutorily required for removing a minor from the physical custody of the parents,[5]regardless of circumstances then existing, subject only to subsequent review by means of a motion. This factor reinforces our conclusion that the courts order that appellant be removed from his parents physical custody, even though the court obviously believed such an order was not necessary, was not reasonable.
The People also argue appellants challenge to the disposition order is waived because he failed to raise it below. We disagree. An obvious legal error at sentencing that is correctable without referring to factual findings in the record or remanding for further findings is not subject to forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875, 887.) As is evident from our discussion, appellants claim presents a pure question of law. Accordingly, his failure to object below does not foreclose review.
To summarize, in the instant case, as the People state, the juvenile court made clear throughout the disposition hearing that he fully intended to keep appellant in his parents[] physical custody . . . . Under these circumstances, as demonstrated above, the courts order that physical custody be removed from appellants parents cannot stand.
DISPOSITION
The courts order removing appellant from the physical custody of appellants parents is stricken. As modified, the judgment is affirmed.
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*Before Vartabedian, Acting P.J., Harris, J., and Kane, J.
[1] Except as otherwise indicated, all statutory references are to the Welfare and Institutions Code.
[2] Because the facts of the instant offenses are not relevant to the issues raised on appeal, we will forgo recitation of those facts.
[3] Section 726, subdivision (a) provides in its entirety as follows: (a) In all cases in which a minor is adjudged a ward or dependent child of the court, the court may limit the control to be exercised over the ward or dependent child by any parent or guardian and shall in its order, clearly and specifically set forth all those limitations, but 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 minors parent or guardian.
[4] The substance of former section 361 subdivision (b) is now found in section 361, subdivision (c), which provides, in relevant part: A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances listed in paragraphs (1) to (5), inclusive, and, in an Indian child custody proceeding, paragraph (6): [] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody.
[5] See footnote 3.
