In re Elizabeth W.

Filed 3/13/07 In re Elizabeth W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

A pregnant minor challenges conditions of probation requiring her to obtain prenatal and postnatal medical care for herself and her children. We affirm.

Background

On June 16, 2003, Elizabeth W. (born in October 1988) was found under the influence of methamphetamine and in possession of a methamphetamine pipe. She was in the company of two adult gang members, including Ulises Pantiagua Rojas, and a minor gang affiliate, Madalynn C. Elizabeth admitted she had had relations with Rojas. The other minor in the car had a handgun and methamphetamine in her possession. Law enforcement identified Elizabeth as a gang affiliate.

Elizabeth had a history of substance abuse, including repeated use of crystal methamphetamine. Her behavior at home was out of control. In December 2002 and March 2003, she left home without her mothers permission or knowledge of her whereabouts and stayed with a 22-year-old boyfriend, on one occasion traveling with him to Mexico City.

A juvenile wardship petition was filed in August 2003, alleging Elizabeth was under the influence of a controlled substance on June 16, a misdemeanor (Health & Saf. Code,  11550, subd. (a)). (Welf. & Inst. Code,  602.)[1] She was not detained. Elizabeth admitted the offense in October. The court ordered Elizabeth to serve 40 days in juvenile hall, with 30 days suspended, after which she was placed in her mothers home. She was directed to participate in counseling, perform community service, and submit to drug testing.

Between August 2003 and September 2005, Elizabeth repeatedly violated her probation by testing positive for marijuana; failing to attend an outpatient treatment program; possessing gang paraphernalia; and maintaining a relationship with a 23-year-old male. During this same period, Elizabeth was committed to a mental health facility on a section 5150 hold; was sexually assaulted after drinking with a neighbor; corresponded with gang members in custody; was physically assaulted by her 23-year-old boyfriend; and left her residential program for four days without permission and without leaving word of her whereabouts. The court reinstated her on probation after her violations, but placed her in increasingly structured settings: in her mothers home with intensive supervision by a community-based program; in her mothers home on a home detention agreement; in foster care while she attended an outpatient treatment program; and in a residential treatment program. She showed progress in the outpatient program in late 2004 and in the residential treatment from late 2005 through 2006.

On June 3, 2006, Elizabeth learned she was pregnant with twins, a high risk pregnancy. The babies were due January 28, 2007. At a June 12 hearing, the court removed Elizabeth from the residential treatment program and placed her in her mothers home on the condition she return to the outpatient program. Probation recommended the following additional terms and conditions[2] related to Elizabeths pregnancy:

18. The minor be under the care of a physician;

19. The minor attend all medical appointments as scheduled by her physician and if an appointment is missed, the minor must contact her probation officer; . . .

22. The minor appear in court as directed to inform the court on the minors pregnancy/progress;

23. Upon the birth of the child, the minor (mother) to be under the care of a pediatrician;

24. The minor apply, enroll, and successfully attend a governmental program and/or a non-profit agency that provides services to mothers and babies for at least one year, at the direction of the probation officer;

25. The minor appear in court as directed to show proof of the infants immunization records.

Elizabeths attorney objected to the conditions as not related to her rehabilitation. The court overruled the objection and imposed the conditions, which it considered very relevant to her success, and to her well-being.

Discussion

Elizabeth argues the pregnancy related probation conditions (Conditions 18, 19, 22-25) imposed in June 2006 were not reasonably related to her rehabilitation and unlawfully infringed on her constitutional right to privacy.

I.                    Reasonable Relationship to Probationers Rehabilitation

A juvenile court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. ( 730, subd. (b).) The juvenile courts discretion to fashion conditions of probation is broader than that of an adult criminal court. (In re Tyrell J. (1994) 8 Cal.4th 68, 81, overruled on other grounds by In re Jaime P. (2006) 40 Cal.4th 128.) As in adult criminal cases, a condition of probation that forbids or requires noncriminal conduct is valid only if it is reasonably related to the crime of which the minor was convicted or to future criminality. (People v. Lent (1975) 15 Cal.3d 481, 486; People v. Josh W. (1997) 55 Cal.App.4th 1, 6.)[3]

The conditions requiring Elizabeth to obtain prenatal and postnatal medical care for herself and her children are reasonably related to her rehabilitation. Becoming the mother of twins at the age of 18 will place substantial stress on Elizabeth at a time when she needs to complete her schooling, make and maintain appropriate peer relationships, sustain sobriety, stabilize her mental health, and find employment. If either she or the children develop health problems during her pregnancy or following the childrens birth, the additional stress of those health problems will significantly threaten Elizabeths successful rehabilitation. By imposing a requirement of obtaining prenatal and postnatal medical care as a condition of probation, the court provided Elizabeth with the structured supervision she desperately needed. Since she first became a ward of the court, Elizabeth benefited from increasingly structured supervision. She made considerable progress in her most highly structured placement. As a result of her pregnancy, she had to leave. She was returned to her mothers home, where there was significantly less supervision. Also due to her pregnancy, Elizabeth was taken off psychotropic medications she was taking for depression and the trial court was concerned about the risks to her mental health. The pregnancy related conditions provided structured supervision to Elizabeths new circumstances.

The cases Elizabeth relies on to support her argument are not helpful. In People v. Zaring (1992) 8 Cal.App.4th 362 and People v. Pointer (1984) 151 Cal.App.3d 1128, appellate courts struck down probation conditions that prohibited the probationer from conceiving a child. (Zaring, at p. 375; Pointer, at p. 1141.) In both, the courts observed that conditions that simply monitored the progress of a pregnancy or required prenatal care would have been less intrusive measures that might have passed constitutional muster. (Zaring, at p. 371; Pointer, at p. 1140.) These cases are distinguishable for the further reason that they involved adult criminal cases, where the courts discretion to fashion conditions of probation is narrower than it is in juvenile cases. (In re Tyrell J., supra, 8 Cal.4th at p. 81.)

In the juvenile case Elizabeth relies on, People v. Antonio C.,the court modified a probation condition that had barred the minor from getting any body piercings. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1036.) The appellate court allowed piercings if they had no gang significance and they were obtained with parental consent. (Ibid.) Antonio C. is distinguishable because there was no evidence that allowing the minor to obtain piercings that were unrelated to gangs would impede his rehabilitation. Here, there are reasons to believe a lack of consistent health care for Elizabeth and her children before and after she gave birth would seriously hinder her rehabilitation.

Finally, Elizabeths attempt to distinguish In re Christopher M. (2005) 127 Cal.App.4th 684 is unpersuasive. In Christopher M., the court upheld a probation condition that required the minor to release all medical and mental health records to the court and his probation officer in light of his history of antisocial behavior, which included gang activity, hate crimes, substance abuse, and resistance to counseling. (Christopher M., at pp. 690, 693, 694.) Elizabeth attempts to distinguish her history, arguing she admitted being under the influence of a controlled substance on one occasion three years prior to the imposition of the challenged conditions. This description significantly understates the severity of Elizabeths social history. As discussed above, she repeatedly associated with adult gang members, had a history of serious substance abuse, left home without her mothers knowledge or permission for substantial periods of time, and exposed herself to dangerous situations that included sexual and physical abuse. A juvenile court imposing probation conditions must consider not only the original charged offense that led to the juvenile wardship, but the minors entire social history. (In re Tyrell J., supra, 8 Cal.4th at p. 81.)

The court did not abuse its discretion in imposing the challenged probation conditions.

II.                 Infringement on Constitutional Rights

Probation conditions that restrict a probationers exercise of constitutional rights are valid if they are sufficiently narrow and reasonably related to a compelling state interest in reformation and rehabilitation.(People v. Hackler (1993) 13 Cal.App.4th 1049, 1058.) A juvenile offenders constitutionally protected liberty interest is qualitatively different from that of an adult probationer. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.) Thus, a probation condition that might be unconstitutional or improper for an adult may be permissible for a minor. (In re Tyrell J., supra, 8 Cal.4th at p. 81.)

Elizabeth argues the pregnancy related probation conditions may act as a disincentive to avail herself of her right to terminate her pregnancy.[4] (See American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 337.) Neither the language of the conditions nor the context in which they were imposed supports this argument. Elizabeth urges that the conditions requiring her to obtain pediatric care and government support for the children after their birth implied that the childrens birth was inevitable and thus indirectly pressured her to carry the children to term. The condition does not interfere with Elizabeths right to abortion. In fact, the court acknowledged Elizabeths right to make choices about her pregnancy at a June 7, 2006 hearing. When Elizabeth expressed concern at the hearing about becoming a parent of twins at age 18, the court responded, Well, there are choices you can discuss with other people . . . . Elizabeth said she had met with a pregnancy counselor and had an upcoming doctors appointment when she would learn about her options and what services she could receive. The court commented, Well, its a lot to deal with and [sic] some difficult choices you have ahead of you. Hopefully you can get the support you need and make the decision that works best for you and your babies to be. In the context of these comments, the probation conditions could not reasonably be construed as interfering with Elizabeths right to terminate her pregnancy.

Elizabeth also argues that the pregnancy related conditions interfered with the management of her own pregnancy, causing her to lose control over her health and the integrity of her body. (See American Academy of Pediatrics v. Lungren, supra, 16 Cal.4th at pp. 332-333.) Elizabeth specifically objects to the probation condition requiring her to attend appointments as scheduled by her physician as an infringement on her right to decide what appointments will be scheduled, and to the condition requiring her to inform the court of the progress of her pregnancy, arguing she would feel pressure to please the judge as an authority figure and would not feel free to make her own decisions and control her own destiny. These arguments have no merit. The conditions imposed by the court essentially require Elizabeth to obtain regular medical care for herself during her pregnancy and for her children before and after their birth. If a particular situation arose where Elizabeth disagreed with the advice of her physician on the course of her medical care, her attorney could bring the matter to the courts attention and seek a modification of the probation conditions. (Cf. In re Christopher M., supra, 127 Cal.App.4th at p. 696.) Maintaining her own health and the health of her children is essential to minimizing the stress this troubled young woman will face raising twins, particularly in light of Elizabeths documented struggles with sobriety and mental stability. Requiring Elizabeth to obtain regular medical care as a formal condition of probation provided her with much needed structure during the period of her pregnancy. The pregnancy related conditions were narrowly drawn to facilitate Elizabeths continued success at rehabilitating her life.

Disposition

The June 12, 2006 dispositional order is affirmed.

GEMELLO, J.

We concur.

JONES, P.J.

SIMONS, J.

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[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Although generally called conditions of probation, the requirements imposed by a juvenile court are dispositional orders issued pursuant to section 730. (In re Bernardino S. (1992) 4 Cal.App.4th 613, 622, fn. 5.)

[3] We reject the Peoples argument that Elizabeth forfeited her Lent claim by failing to raise a sufficient objection below. (People v. Lent, supra, 15 Cal.3d 481.) Elizabeth objected to the pregnancy related conditions because they were not related to her rehabilitation and argued the court did not have authority to impose them. Before she even explained the grounds for her objection, the court stated, You can object to them, but Im going to impose them. The objection was adequate because it alerted the court to the risk of error and gave it an opportunity to correct the error, and because the court indicated that any further objection would be futile. (See People v. Velasquez (1980) 26 Cal.3d 425, 444, as modified at 28 Cal.3d 461.)

[4] Although this issue is moot because Elizabeth has already given birth, we address the issue because it is likely to recur and evade appellate review. (See People v. Cheek (2001) 25 Cal.4th 894, 897-898.)