In re Ivan N.

CourtCalifornia Court of Appeal
DecidedMay 20, 2016
DocketD068595
StatusPublished

This text of In re Ivan N. (In re Ivan N.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ivan N., (Cal. Ct. App. 2016).

Opinion

Filed 5/20/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re IVAN N., a Person Coming Under the Juvenile Court Law. D068595 THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J237013)

v.

IVAN N.,

Defendant and Appellant.

APPEAL from a judgment and order of the Superior Court of San Diego County,

Ronald L. Johnson, Judge. (Retired Judge of the San Diego Super. Ct., assigned by the

Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Steven J. Carroll, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent. This appeal arises out of the juvenile court's dispositional and placement orders

under Welfare and Institutions Code sections 602 and 727, adjudicating a minor to be a

ward of the court and placing him under the custody and control of a probation officer.1

We consider the interaction of those delinquency provisions with the language of

Education Code section 48853.5 ["Notice of educational rights of foster children . . ."],

which applies to foster children or other minors subject to juvenile court adjudication,

and requires consideration of a preference to continue their attendance at their schools of

origin.

In this case, the juvenile court at the dispositional hearing determined that Ivan N.

(the minor), who had admitted to a felony sex offense, should be placed out of his home

for treatment in a community-based organization (CBO), which could include, if

necessary, education at a juvenile court school. (Ed. Code, § 48645.1 [defining juvenile

court schools].) During further dispositional proceedings, the court denied the minor's

motion for an additional hearing to consider whether he could be returned to his high

school of origin after he received a short period of such treatment.

On appeal, the minor contends the juvenile court erred in denying his motion and

he should be entitled to further hearings on his educational preferences (i.e., returning

him to his school of origin), as a person who fits the definition of a "foster child" under

1 All further statutory references are to the Welfare & Institutions Code unless otherwise specified. In pertinent part, section 727, subdivision (a)(1)-(4) provides that when a minor has been adjudicated a ward of the court pursuant to section 602, the court may place the minor's care, custody, and control under the supervision of a probation officer, if other alternatives are not available (e.g., parental or foster care placement). 2 Education Code section 48853.5, subdivision (a) by remaining "the subject of a petition

filed under [section 602]."2

The People respond that once the adjudication and placement occurred, the

juvenile court properly resolved the motion by concluding that the minor, as a ward under

the supervision of the probation officer, had not shown entitlement to further hearings on

school of origin issues. (§ 727, subd. (a)(3), (4); Ed. Code, § 48853.5, subd. (h) ["section

does not supersede other law governing the educational placements in juvenile court

schools"; see In re Angela M. (2003) 111 Cal.App.4th 1392, 1398 [juvenile court's duties

at disposition include accommodating and planning for a child's educational needs].)

We conclude the juvenile court was correct in determining that the Education

Code provisions and related California rule of court relied upon by the minor (Cal. Rules

of Court, rule 5.651 ["Educational and developmental-services decisionmaking rights"])

did not require it to grant a separate hearing on the request.3 (Ed. Code, § 48853.5, subd.

(h).) The procedures created by Education Code section 48853.5, subdivisions (a)

through (g) were intended to be primarily directory toward state and local educators and

their designated staff educational liaisons who act on behalf of foster children. Education

2 Education Code section 48853.5 was enacted in 2004 as part of Assembly Bill No. 490 (2003 Reg. Session), intended to improve the educational services provided to dependents and wards in foster care. In pertinent part, Education Code section 48853.5, subdivision (a) defines "foster child" as meaning "a child who has been removed from his or her home pursuant to Section 309 of the Welfare and Institutions Code, is the subject of a petition filed under Section 300 or 602 of the Welfare and Institutions Code, or has been removed from his or her home and is the subject of a petition filed under Section 300 or 602 of the Welfare and Institutions Code."

3 All further rule references are to the California Rules of Court unless noted. 3 Code section 48853.5, subdivision (h) carves out an exception to those administrative

procedures, and prevents interference with the discretion granted to a juvenile court that

has made section 602 jurisdictional findings that a minor is a ward of the court, to make

related placement orders giving the probation officer the authority to determine the

appropriate placement for the ward. (§§ 725, 726, 727, subd. (a)(4).) Once the true

findings on the section 602 petition were made, the procedures of section 727 controlled

the minor's dispositional proceedings. Based on the court's placement order under section

727, subdivision (a)(4), the probation officer could exercise authority without regard to

the definitions of a "foster child" in Education Code section 48853.5, subdivision (a).

We affirm the order and judgment.

I

BACKGROUND

When the minor was 17 years old and had been in his adoptive home for three

years, his adoptive parents learned from an incident at their home that he had molested

their daughter, age 7 (sometimes termed the "victim"). The minor admitted that he had

used his hands and penis to touch her genital area several times over the past year. He

was arrested and confined at juvenile hall. He was arraigned April 16, 2015 on a section

602 delinquency petition that charged him with two counts of committing a lewd act on a

minor under the age of 14. (Pen. Code, § 288, subd. (a).)

During an interview, the minor apologized and admitted he should not have

molested the victim, which he did to get back at his parents. His psychological evaluator

4 recommended referring him to an outpatient or residential facility that specialized in

treating male adolescent sex offenders with therapy and programming.

After the minor admitted to one of the charged counts on May 4, 2015, the court

dismissed the other count in the interest of justice. The minor was determined to be a

person described by section 602 who was subject to being placed on probation. The

social study prepared by the probation department recommended that he be placed at a

CBO and receive appropriate treatment for a sex offender.

On May 18, 2015 at the dispositional hearing, the minor agreed to the proposed

residential placement, but requested a hearing on whether he should be allowed to return

to the North San Diego County high school he had previously attended, his "school of

origin" within the meaning of Education Code section 48850 et seq. (ch. 5.5, "Education

of Pupils in Foster Care and Pupils who are Homeless"). He had friends there and had

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