In re Adam M.

Filed 6/1/07 In re Adam M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Margaret A. Powers, Judge. Affirmed.

Brent F. Romney, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Elizabeth S. Voorhies, Deputy Attorney General, for Plaintiff and Respondent.

Minor admitted an allegation that he violated Penal Code section 288, subdivision (a) (lewd act upon a child). On disposition, the trial court ordered minor to remain in the custody of his probation officer and be placed in a suitable foster care facility. On appeal, minor contends the trial court erred when it refused to place him with his father. We conclude the trial court acted within its discretion in its placement of minor and, therefore, affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

Minors parents were divorced and he lived with his mother, sister, and maternal grandmother in the latters home in Hesperia. His father also lived in Hesperia, approximately one mile from grandmothers home. On April 18, 2006, minor went into his 12-year-old sisters room, pushed her to the floor, removed her pajama bottoms and panties, and forced his finger and penis inside her rectum. He then immediately ordered her to go to his room where he closed the door and repeated the behavior. Minor used force and threats to accomplish his actions. Minor repeatedly admitted the events.

The victim wrote her mother a letter in which she informed her that minor had tried to hump her. Mother indicated that she attempted to question both the victim and minor about the allegations, but as neither wished to discuss the matter, she ignored it. Mother reported the incident to the childrens counselor, who then reported it to the San Bernardino County Department of Childrens Services (DCS). DCS visited the home and mother informed the social worker she would have minor removed from the home so that he would not have access to the victim; however, minor was still living in the home when he was arrested.

The People filed a Welfare and Institutions Code section 602 petition alleging minor committed two counts of lewd acts upon a minor. (Pen. Code,  288, subd. (a).) Minor admitted count 1 and the court, pursuant to the Peoples stipulation, dismissed count 2. However, the parties stipulated the dismissed count could be considered for purposes of disposition. The court continued disposition twice to permit psychological evaluations of minor and the preparation of a probation officers report.

In his psychological evaluation, Dr. Michael E. Kania concluded that returning minor to grandmothers home would be inappropriate due to mothers failure to remove him following the incident. However, he concluded that placement with his father, with grandmother watching him while father was at work, would be tenable. Dr. Kania further suggested that any placement away from his father or mother would possibly be of greater harm to him. Initially, the probation officer agreed with Dr. Kanias recommendations; however, he noted he had still not received the additional psychological report ordered by the court.

In that report, Dr. Edward J. Ryan recommended minor be placed in a facility in which he would receive intensive therapy. He believed placement with either parent improper as minors previous outpatient therapy had proven ineffective and his familys response to minors behavior had not been ameliorative.

After reading Dr. Ryans report, the probation officer issued a supplemental report in which he adopted Dr. Ryans conclusions and ultimately recommended placement outside the home to address [minors] special needs and the safety of the victim and others.

After indicating it had read all the reports and considered all the arguments, the trial court essentially adopted the recommendations of Dr. Ryan and the probation officer and ordered minor placed in a foster care facility.

II. DISCUSSION

Minor contends the trial court failed to make the requisite findings under Welfare and Institutions Code section 726, subdivision (a) when it removed custody from his parents. He furthermore contends the record does not support the removal of custody and, thus, the trial court abused its discretion in placing minor outside his fathers home.

We review a juvenile court disposition for abuse of discretion. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135.) It is not the responsibility of this court to determine what we believe would be the most appropriate placement for a minor. This is the duty of the trial court, whose determination we reverse only if it has acted beyond the scope of reason. (Ibid.)

The juvenile court may not remove custody of a delinquent minor from the parents unless it has made one of three findings: (1) the parents have failed to provide maintenance, training or education; (2) the minor has failed on probation in the custody of the parent; or (3) the childs welfare requires removal of custody. (Welf. & Inst. Code,  726, subd. (a); Cal. Rules of Court, rule 1493(c)(3).)^[1] A dispositional order removing custody from the parents must contain a finding pursuant to Welfare and Institutions Code section 726, subdivision (a); however, such a finding need not be express, so long as its substance appears in the record. (In re John S. (1978) 83 Cal.App.3d 285, 290; In re Trevor W. (2001) 88 Cal.App.4th 833, 837.)

Here, the trial court implicitly found that the welfare of minor required his removal from the custody of his parents. (Welf. & Inst. Code,  726, subd. (a)(3); Cal. Rules of Court, rule 1493(c)(3).) The court stated that strife within the family would prevent minor from focusing on the recuperative effects of his therapy. It indicated it did not believe minors family sufficiently recognized the gravity of the offense or the necessity of taking corrective measures. Finally, it repeatedly asserted it believed this placement was in minors best interests. Therefore, although the trial court did not echo the exact words of the statute, it implicitly found that minors welfare required removal from his parents.

Minor contends the family strife referenced by the court and taken from Dr. Ryans psychological evaluation of minor referred to circumstances which existed four years prior to the report and were no longer in existence. Hence, he asserts the court could no longer appropriately use this factor to justify removal of custody. However, minor ignores Dr. Ryans conclusion that this strife has been present for quite a number of years, indicating it was ongoing despite his parents divorce. Indeed, Dr. Ryan wrote, [t]he factor that both minor and the victim were in therapy also indicates that there are problems within this family . . . . (Italics added.) Moreover, this was not the only reason the court gave for removing custody. As noted above, the court also believed minors family minimized his culpability and the need to address it. Thus, the courts stated reasons for removing minor from the custody of his parents were sufficient for purposes of Welfare and Institutions Code, section 726, subdivision (a).

Finally, minor contends the court abused its discretion in removing minor from his parents custody. Here, the trial courts stated reasons for removing minor were amply supported by the record. As noted above, Dr. Ryan recognized continuing problems in minors domestic sphere which interfered with his therapy. Likewise, the courts concern regarding the familys minimization of minors behavior is buttressed by numerous examples. Here, had minors requested placement been granted, he would have been left in the care of grandmother for more than 12 hours each day. Yet, grandmother attempted to get minor to recant his admissions, blamed the victim for the incident, resisted efforts to remove minor from the home, and argued with the authorities regarding the need for his arrest. Moreover, grandmother lived in and owned the home in which the victim and mother were living, which was only one mile away from fathers home. Thus, the courts expressed concern with keeping minor and the victim separate from one another would surely be difficult in such circumstances. Furthermore, when questioned regarding how she would prevent future incidents, grandmother simply denied its possibility and merely attempted to defend her past actions. Likewise, mothers failure to remove minor from the home after the incident, even after she promised DCS she would do so, further demonstrates that minors family continually trivialized his behavior and neglected to acknowledge the need for remedial action. Thus, the trial court acted well within the scope of reason in ensuring minors welfare by removing him from his parents custody so that he could get the intensive therapy that both therapists recommended he required.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] Effective January 1, 2007, rule 1493(c)(3) has been renumbered as rule 5.790(d)(3). For the sake of clarity, we will refer to the rule under the former rule number.