In re Frederico Y.

Filed 4/18/07 In re Frederico Y. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Los Angeles Superior Court. Shep Zebberman, Juvenile Court Referee. Affirmed and remanded with directions.

Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

Frederico Y. appeals the juvenile court orders granting a petition for modification (Welf. & Inst. Code, 777) and committing him to the California Youth Authority (CYA).[1] He contends that a remand is necessary under In re Angela M. (2003) 111 Cal.App.4th 1392 (Angela M.), to determine the need for an evaluation of special educational needs. Like the Angela M. court, we affirm the order of commitment but remand the matter to the juvenile court for a determination whether a special needs evaluation should be conducted. (Id. at p. 1394.)

PROCEDURAL HISTORY AND FACTS

Frederico was 14 years old in February 2004, when the first juvenile court petition was filed. He admitted that on February 5, 2004, he drove a car without the owners consent (Veh. Code, 10851). Entry of judgment was deferred, and he was placed home on probation, with various probation conditions.

A second wardship petition, filed in March 2004, was based on a car theft that occurred on January 8, 2004 (prior to the first petition). In May 2004, Frederico admitted the second petition as a misdemeanor violation of Vehicle Code section 10851. Deferred entry of judgment was terminated. He remained home on probation.

According to the May 2004 probation report, Frederico admitted he was a passenger in a vehicle that a friend had stolen. He was not currently enrolled in school. He had failed all his spring classes at Webster Middle School and missed between 40 and 68 days of classes during that grade period. His father was in Mexico. He lived with his mother and six siblings in an apartment. He was not a problem at home, was reporting regularly to his probation officer, and was receiving counseling. The report indicated that Frederico needed to enroll in school immediately, and might be helped by a program of tutoring.

In June 2004, a third wardship petition was filed. The allegation this time was that Frederico committed two second degree vehicular burglaries in April 2004. In August 2004, he admitted one of the incidents, and agreed to a three-month, short-term camp placement. Numerous conditions of probation were imposed.

In October 2004, a fourth wardship petition was filed. It alleged that Frederico committed two counts of second degree robbery in July 2004 (prior to the August 2004 camp commitment). He admitted the fourth petition in November 2004. He agreed to an additional six months in camp, after completion of the initial three-month camp program. He also understood that if he later violated the terms of his probation, other dispositions were possible, including CYA.

A November 2004 probation report indicated that Frederico was a member of the 18th street gang. He admitted that he and a companion forced two other boys to give up property, by holding a BB gun on them. He had obtained all Fs at Webster Middle School, had subsequently enrolled at Western Academy, and had quickly been terminated from that school due to gang activity. He currently had fair attendance at the school program at Camp Gonzales. His parents had resumed living together. The family had moved to the San Luis Obispo area. His mother wanted Frederico to be home.

Frederico returned to court on December 27, 2004, due to the filing of a notice of violation and the section 777 report. The report described numerous incidents at camp and juvenile hall between November 19 and December 9, in which appellant fought with minors whom he viewed to be enemies of the 18th Street gang. He also had refused to refrain from gang writing in a camp classroom. His behavior violated several specific conditions of probation. Due to his escalating violence and involvement with the gang subculture, the report recommended that the disposition be modified to a CYA commitment.

The section 777 report included somewhat contradictory records from the school at Camp McNair, where Frederico was in the 10th grade. Frederico had achieved Bs and Cs in all subjects, except for a D in algebra. On the other hand, educational testing put his academic skills in the 1 percentile, 6.2 years below his grade level in reading and 7.3 years below his grade level in math. The records also indicated, without explanation, that Frederico did not qualify for special education services, and did not have an Individual Education Program (IEP).

On January 31, 2005, the juvenile court filed a report from Jack Rothberg, M.D.[2] At one point in the report, Rothberg expressed doubts about Fredericos academic skills, because he did not know his multiplication tables and could not answer a simple math question.

On February 17, 2005, Frederico admitted that he had violated his probation conditions by engaging in fights at juvenile hall and camp. He thereafter sought admission at, and was rejected by, the programs at Rite of Passage and Dorothy Kirby Center.

On May 11, 2005, the disposition hearing was held. The juvenile court had read numerous reports, including Dr. Rothbergs report and incident reports about a fight at juvenile hall the previous day. Frederico was committed to CYA for a maximum period of seven years eight months. This appeal followed.

DISCUSSION

A remand was necessary in Angela M, supra,111 Cal.App.4th 1392, because the juvenile court failed to make the findings on educational needs that are required by Californias Education Code and the federal Individuals with Disabilities Education Act. (Angela M., supra, 111 Cal.App.4th at pp. 1397-1399; Ed. Code, 56000 et seq.; 20 U.S.C. 1400 et seq.) Pursuant to those statutes, a child with special needs is entitled to free special education services if the child has a disability that meets certain criteria, as identified by an IEP team. The specific evidence of special needs in Angela M. was the report of a court-ordered psychologist, indicating the need for an IEP assessment. (Angela M., supra, 111 Cal.App.4th at p. 1395.)

Frederico argues that, as in Angela M., he is entitled to a remand for findings on whether he had special educational needs, based on the evidence of an academic deficit shown through Dr. Rothbergs report and the records from the camp school.

As a preliminary matter, we reject respondents assertion that the issue was waived. Afinding of waiver would be inappropriate as the trial court has a mandatory duty to consider whether special educational needs exist under the applicable statutes. (Angela M., supra, 111 Cal.App.4th at p. 1398.) We also cannot presume that an official duty was properly performed where there is no indication that anybody considered the special needs issue below.

Unlike Angela M., there was no specific reference below to the need for an IEP. Even so, we agree with Frederico that there was sufficient evidence to justify an inquiry into whether he had special needs.

Dr. Rothbergs report states: [Frederico] indicates that he has a tenth grade education with grades ranging from B to D. He indicated he had no difficulty with reading and writing, or with arithmetic. He claimed he had more difficulty with algebra. However just a cursory test indicate[d] that he does not know his multiplication table, and had difficulty subtracting seven from one hundred in his head, suggesting that his abilities are probably greatly exaggerated.

Academic testing at camp on December 6, 2004, produced these results:

ReadingMath

Inst. Level 3.8 2.7

Grade Equiv. 1.4 2.7

%tile 1 1

Scale Score 101 511

Those results suggest the possibility that Frederico was a special needs child who had been promoted every year without having his disability recognized.

The camp school records also contained a Pupil Evaluation Report from the camp school. It apparently utilized the Inst. Level results, as it indicated that Fredericos reading was at the 3.8 grade level, 6.2 years below his grade level, while his math skill was at the 2.7 level, 7.3 below grade level. It also stated that Frederico did not qualify for special education services, but did not specify the reason for that lack of qualification.

We recognize that the camp school records also showed grades that were higher than would be expected from the low test scores. Those grades included a D in algebra, and Cs in English, modern world history, biology, reading basics, and math basics. Recognizing that there was some ambiguity regarding Fredericos abilities, we find that the combination of Dr. Rothbergs report and the scores on academic testing constituted sufficient evidence of a possible special need to justify further exploration of that issue.

Respondent argues that Fredericos academic problems stem wholly from insubordination and involvement in gang activity. If that were the case, a remand would be unnecessary, since pupils whose educational needs are due primarily to limited English proficiency; . . . social maladjustment; or environmental, cultural, or economic factors are not individuals with exceptional needs. (In re Angela M., supra, 111 Cal.App.4th at p. 1397, fn. 3, quoting Ed. Code, 56026, subd. (e).) However, it is not clear that Fredericos academic deficiencies result solely from the excluded sources. His poor grades at Webster Middle School may have resulted from the many days he was truant; on the other hand, he may have been truant because the schoolwork was beyond his capability. (See, e.g., In re Robert M. (1985) 163 Cal.App.3d 812, 817.) Similarly, even if his gang involvement interfered with his academic studies, the extremely low level of his reading and math skills on the actual testing, and his responses to the math questions from Dr. Rothberg, suggest that he also suffered from a disability that had not been previously recognized.

Respondent also argues that Angela M. is inapplicable because the opinion relied partly on a court rule requiring the juvenile court to consider a childs educational needs (Cal. Rules of Court, former rule 1493(e)(5)), and the pertinent language was deleted from that rule prior to the proceedings below. We reject the argument without extended discussion, as Angela M. also relied on the California Standards of Judicial Administration, and the applicable language there continues to exist. (In re Angela M., supra, 111 Cal.App.4th at p. 1398, fn. 5; Cal. Stds. Jud. Admin., 5.40, subd. (h), former 24, subd. (h).)

DISPOSITION

The matter is remanded to the juvenile court with directions to make proper findings, on a more fully developed record, regarding Fredericos educational needs. The findings shall to be forwarded to the director of the CYA in an amended commitment order, together with Fredericos IEP if one is prepared. The order committing Frederico to the CYA is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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[1] All further code references are to the Welfare and Institutions Code unless otherwise stated.

[2] We previously deferred a ruling on appellants request for judicial notice of Dr. Rothbergs report and the minute order indicating that the report was filed. The request for judicial notice is hereby granted.