In re Andrew C., H029693 (Cal. App. 5/30/2007)

• Decision Date: 30 May 2007
• Docket Number: H029693
• Court: California Court of Appeals Court of Appeals
• Parties: In re ANDREW C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDREW C., Defendant and Appellant.

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In re ANDREW C., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. ANDREW C., Defendant and Appellant.

H029693

Court of Appeals of California, Sixth Appellate District

May 30, 2007

NOT TO BE PUBLISHED

Appeal from the Monterey County Super. Ct. No. J38952.

RUSHING, P.J.

Minor Andrew C. was first committed to California's Youth Authority (CYA)¹ at the age of 12 after quickly failing placements in four group homes. The Monterey County Superior Court rescinded this initial commitment after two months. The juvenile court again committed minor to CYA at the age of 13 after minor had failed in a home placement, three times in two group homes, and at the Monterey County Probation Youth Center.

On appeal, minor challenges his CYA commitment, arguing that it is not supported by the factors on which the court relied and that the court overlooked or improperly weighed other factors precluding this commitment. In support of these arguments, he requests us to recognize current conditions at CYA by taking judicial notice or additional evidence on appeal. Minor also contends that the juvenile court failed its obligation under Welfare and Institutions Code section 241.1² to determine whether minor should have been treated as a dependent, and not a delinquent, child. For the reasons stated below, we will affirm the CYA commitment.

THE INITIAL CYA COMMITMENT

Minor was initially committed to CYA on October 6, 2004, after rapidly failing four group home placements and cursing the juvenile court judge who was offering him one last chance.³ Since minor's commitment was based on his complete history, we must review the details.

Minor, born in September 1992, first came to the attention of Monterey County law enforcement on September 30, 2003, for attempting with a friend to steal a cap gun, a calculator, and other small items from a Castroville supermarket. A sheriff's deputy contacted minor, who was apologetic and crying. The boys were not cited due to their youth.

On May 16, 2004, minor and his mother fought about him carrying groceries and her giving him a snack. He yelled, cursed, smeared food on the walls, punched two holes in the bathroom door, ripped the bedroom door from its hinges and broke it on the ground, and punched her nose. Minor was taken to Monterey County Juvenile Hall.

According to his mother, minor was a good boy until his alcoholic father was arrested in 2003 for vehicle theft. Minor became uncontrollable after his sister Stephanie was removed from their home in 2004. Stephanie, who is one year older than minor, was removed due to ongoing conflicts with their mother and allegations of sexual abuse by her step-grandfather.

A juvenile court petition was filed in Monterey County Superior Court on May 18, 2004. On May 24, 2004, minor admitted damaging property (Pen. Code, § 594, subd. (b)(1))⁴, and misdemeanor assault (Pen. Code, § 242) and petty theft (Pen. Code § 484). Another charge, based on an alleged threat to blow up his middle school on February 19, 2004, was dismissed.

A probation report dated June 3, 2004, described minor's offenses and his background. It recommended a psychological assessment, a section 241.1 investigation, a section 241.2 hearing, and probation without wardship. The report stated that criminal proceedings against Stephanie for brandishing a knife against her mother were dismissed when she was found suitable for dependency court. She had a DSS case worker and was in a foster home.

Minor was declared a ward of the court at a dispositional hearing on June 7, 2004. The court found that he should be removed from his parents' custody to be placed in a foster home, group home, or 24-hour private institution as determined by the probation officer. The court did not order a section 241.1 investigation. At a hearing on June 21, 2004, the court adopted a case plan that did not include a section 241.1 investigation. The court confirmed his existing placement.

Minor cycled through four short stays at four group homes, always returning to juvenile hall and eventually admitting in juvenile court violating probation in each placement. He was first placed in Pacific Coast Group Homes in Ben Lomond, California on June 14, 2004. One week later, he refused to return to this group home after his court hearing on June 21, 2004.

On June 30, 2004, minor was placed in Ghandi House in Watsonville, California. He began cursing and insulting staff members on July 8, 2004. He was terminated from this placement after one month, on July 30, 2004, for continuous defiant and non-compliant behavior.

On August 13, 2004, minor was placed in Karis House in Visalia, California. He was terminated from this placement less than two weeks later on August 25, 2004, due to defiant and noncompliant behavior, and was lodged in the Tulare County Juvenile Hall before returning to Monterey County Juvenile Hall.

On September 7, 2004, minor was placed in the Central Coast Group Home in Prunedale, California. One week later, on September 15, 2004, he was terminated from this placement, due to negative behavior including drinking alcohol and stabbing another resident with a pencil.

At a hearing on September 24, 2004, minor admitted this violation of probation. His attorney urged a section 241.1 referral. The court stated, "I'll look at it at disposition. I'm very familiar with the dynamics between Andrew and Stephanie."

Prior to the disposition hearing, the court received a psychological evaluation by Elizabeth Lee dated September 5, 2004, and a supplemental probation report dated October 1, 2004. Lee observed and concluded as follows. Minor's father used and sold drug, fought other men, and beat his wife and children. "He looks up to his father and appears to be emulating his behavior, including treating females with contempt." Minor seemed to enjoy the negative attention generated by making vulgar remarks. He expressed no remorse about hitting his mother. He was upset about his father and older sister being out of the household. Minor did not believe that Stephanie was molested. The district attorney had declined to prosecute the step-grandfather for reasons unknown to Child Protective Services.

At his middle school, minor ranked 135 out of 146 students. He did not have special education classes. He simply did not care about school. His school teacher said he was extremely intelligent and "maybe be destined to become a lawyer due to his obsession with finding loopholes."

Dr. Lee continued as follows. Minor made false claims about auditory hallucinations. He had little respect for authority figures other than his father. "[H]is bravado appeared contrived, as perhaps might be expected from a 4 ¼ foot tall, 90 pound eleven year old boy saying that no one could stop him from doing whatever he wanted." "Although [minor] is more aggressive than average, his behavior appears to be primarily volitional rather than being driven by uncontrollable impulses." He "is at high risk for developing an antisocial personality disorder as an adult unless he receives appropriate intervention." He needs a more structured program than Child Protective Services would offer. "His profile is more similar to a probation child than to a victim of abuse." He has a moderate conduct disorder. A group home placement is appropriate, although he would try to sabotage it. He tried to get kicked out of group homes so he could see his sister Stephanie in juvenile hall.

Minor told the probation officer that he did not want to go to another group home. If he could not live with his paternal grandmother, he wanted to be sent to the Youth Center. The probation officer tried to explain the necessity of minor succeeding in a group home. Minor stated that he planned to refuse placement, "even if it means having to insult the judge in order to `get his own way.' " The probation officer recommended that, due to minor's young age, he "will benefit from a structured environment such as a group home placement that would provide minor with the education and appropriate counseling that he sorely needs. The minor has not remained in any one placement long enough to establish a treatment program to help him."

At the outset of the disposition hearing on October 6, 2004, the court announced that its tentative decision was to send minor to CYA. Minor's attorney, deputy public defender Susannah McNamara, argued that the morning of the hearing, minor seemed like a different person. He said he was ready to accept placement and succeed in it. The court stated that Dr. Lee's report was a condemnation of minor as sophisticated and uncontrollable. He had manipulated the system to go where his sister was. After reciting more of Dr. Lee's report, the court stated, "Here he is again. He is out of control, he lacks remorse, he's a threat to public safety. He's twelve years old. Told me flat out he didn't want to return to placement one time. I will give this young man one last chance at placement."

Minor interjected, "Fuck you." This colloquy followed.

"THE COURT: That tells me exactly what I wanted.

"THE MINOR: Little bitch.

"THE COURT: This minor —

"THE MINOR: You think anybody I bitch.

"THE COURT: As I indicated. He's out of control.

"THE MINOR: Shouldn't fuck up already.

"THE COURT: He's a threat to public safety.

"THE MINOR: I'm not a threat to nobody. I just want to go home. Little bitch want to send me everywhere.

"THE COURT: Local programs are too short for this minor.

"THE MINOR: Fuck up, already.

"THE COURT: I will —

"THE MINOR: I will, bitch."

The court committed minor to CYA for a maximum time of three years and four months, with minor once more interjecting "little bitch." The court found that the educational records did not indicate that minor had exceptional needs.

At a hearing on October 20, 2004, the court denied a motion for a stay and for reconsideration. At a hearing on December 3, 2004, on minor's...