Filed 7/16/15 In re M.R. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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



In re M.R., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                         E061547
         Plaintiff and Respondent,
                                                                         (Super.Ct.No. RIJ1301229)
v.
                                                                         OPINION
M.R.,

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge.

Affirmed.

         Michelle Rogers and Lindsey M. Ball, under appointments 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, Charles C. Ragland and Warren J.

Williams, Deputy Attorneys General, for Plaintiff and Respondent.



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          After minor, M.R., pled guilty to second degree robbery and violated probation

three times, the juvenile court ordered that he be placed on out-of-home probation, in a

home or facility to be determined by the probation department. The probation

department subsequently placed minor at a treatment facility.

          On appeal, minor argues that the court erred by relying on the probation

department’s choice of out-of-home placement options and failing to consider placing

him with his maternal aunt, a less restrictive alternative to a treatment facility. Minor

also argues that the placement ruling was not supported by substantial evidence. We

affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

          1.    Minor’s prior offense and probation violations

          In 2013 the Los Angeles County District Attorney filed a petition under Welfare

and Institutions Code1 section 602 alleging that minor committed second degree robbery,

criminal threats, and dissuading a witness by force or threat, a serious felony. Minor pled

no contest to the robbery charge and admitted the allegations in the petition. The

remaining charges were dismissed. According to the probation officer’s detention report,

minor and a friend demanded a 12-year-old boy’s scooter and, when the boy refused,

minor’s friend punched the boy several times and took the scooter. The boy tried to

retrieve his scooter but minor pushed him and yelled, “ ‘SBK,’ ” the initials of a criminal


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




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street gang in Azusa. Minor and his friend told the boy that if he contacted the police,

“ ‘SBK’ would get him.” On August 20, 2013, the Los Angeles Juvenile Court declared

minor a ward of the court under section 602 and placed him on in-home probation. Over

the next several months, minor violated probation four times.

       The first violation occurred less than a month later, when minor ran away from

home on September 24, 2013. While this violation was pending, minor’s family moved

from Azusa to Corona, and his case was transferred to Riverside County. The Riverside

County Juvenile Court ordered minor to submit to drug testing.

       Approximately five months later, minor was caught possessing marijuana at

school. The district attorney filed a second section 602 petition, and minor admitted the

allegation. On March 28, 2014, the court ordered minor be released to his mother, and

placed in a “Wraparound” program.2 Within 24 hours of his release from juvenile hall,

minor was offered and smoked marijuana; on April 7, 2014, minor tested positive for

marijuana, his third probation violation. Minor had not yet started Wraparound services.

       2.     The placement ruling

       At the section 777 hearing on minor’s third probation violation, the court stated

that it had reviewed three probation reports, including a dispositional memo, which

“explore[d] several possible approaches to the minor’s continued delinquent behavior but

ultimately conclude[d] . . . that [out-of-home] placement in this case is appropriate.” The


       2 The Wraparound program provides rehabilitative services to a minor and his or
her family while the minor remains on in-home probation.




                                             3
court stated that it was inclined to agree with the probation department’s

recommendation. Minor’s counsel contested the recommendation on the ground that the

probation department had not “exhausted all other possibilities” in terms of less

restrictive alternatives. Minor called two Riverside County probation officers to testify

regarding the placement recommendation.

       Both probation officers testified that out-of-home placement was the most

appropriate probation option for minor. In their opinion, minor was in immediate need of

anger management and substance abuse services, which Wraparound could not provide,

and minor’s mother was incapable of adequately supervising him. The probation officers

believed that minor would not be able to address his marijuana abuse issues successfully

if he remained at home. Minor had been caught with marijuana at school and had

smoked marijuana within 24 hours of his release from juvenile hall. The probation

officers opined that minor’s mother was incapable of adequately controlling his behavior.

In support of this opinion, they cited ongoing child protection services and law

enforcement investigations against mother that suggested she had exhibited poor

parenting judgment. According to allegations in a police report, mother had furnished

alcohol to minor and his friends and agreed to let R.M., a minor, borrow her car if he had

sex with her.

       Additionally, the probation officer who directly supervised minor believed that

minor had issues with anger management. She testified that after minor was released

from juvenile hall, he told her that he had sent R.M. a text stating that he was going to

“stick him” for stealing his mother’s car.


                                             4
       Based on minor’s behavior and evidence of minor’s mother’s inappropriate

parenting, the probation officers determined that minor’s rehabilitative needs were too

great and mother’s discipline was too poor for him to remain on in-home probation. The

probation officers testified that they did not investigate whether there were appropriate

family members that minor could be placed with because his needs were immediate and

the delay in finding a suitable relative could be too long.

       During closing argument, minor’s counsel argued that the probation department

was required, and failed, to consider less restrictive placement options. Counsel stated

that minor’s mother had “informed [counsel] that her sister . . . who lives in Anaheim

Hills could potentially be [the least restrictive] option.” The district attorney argued that

minor had repeatedly been warned that violating his probation could result in out-of-

home placement and that minor had already been given a second chance when the court

originally placed him in Wraparound.

       The court ruled that out-of-home probation would be most beneficial to minor’s

rehabilitation. It stated, “looking at the situation right now, what I know about this

minor, the minor’s history, social history of the family, . . . my best judgment [is that] it

seems to me for a number of reasons that placing the minor is in his best interest.”

       The court detailed the reasons why out-of-home probation was in minor’s best

interest. First, it found that minor’s initial offenses were serious and gang-related, noting

that “Los Angeles County gave serious consideration to placing the minor outside the

home at that time.” Second, it found that minor’s mother had been ineffective in his

rehabilitation. The court stated “We have lots of information about the minor being


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essentially out of control and [m]other being unable to influence his behavior. . . .

There’s information suggesting that she may be having inappropriate relationships with

minors . . . [and] making alcohol available to her son and minors.” The court

acknowledged that those allegations against mother had not been “proven beyond a

reasonable doubt,” but found them to be “sufficiently concerning” with regard to minor’s

rehabilitation.

       The court found that minor’s behavior during probation was a third ground for

out-of-home placement. Citing to minor’s marijuana use and “interest in taking revenge

upon [another minor] who may have wronged or disrespected his family,” it found that

minor believed he could “game the system” and that he “has very little interest in

following the Court’s orders.”

       The court ordered minor to be placed in the out-of-home probation option of the

probation department’s choosing (i.e., “in a suitable foster, group home, relative home,

county or private facility”). The probation department placed minor at Philos Adolescent

Treatment Center. After being at Philos for less than a month, minor ran away, violating

probation a fourth time. At the section 777 hearing for that violation, the court ordered

minor to remain in the out-of-home placement deemed appropriate by the probation

department.

                                        ANALYSIS

       Minor argues that the court erred in relying on the probation department’s

selection of the particular out-of-home placement because the probation department

failed to consider placing him with his maternal aunt as a less restrictive alternative. He


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also argues that the placement ruling is not supported by substantial evidence. We

disagree.

       We review a placement ruling for abuse of discretion, “indulging all reasonable

inferences to support the juvenile court’s decision.” (In re Angela M. (2003) 111

Cal.App.4th 1392, 1396.) A placement ruling is valid if there is evidence in the record

“demonstrating both a probable benefit to the minor . . . and the inappropriateness or

ineffectiveness of less restrictive alternatives.” (Ibid.)

       Here, there is substantial evidence in the record that out-of-home probation will be

beneficial to minor and that in-home probation had proved ineffective and inappropriate.

After reviewing the probation reports and hearing testimony from the probation officers,

the court concluded that in-home probation had been ineffective and that minor’s best

chance of rehabilitation was through a “24-hour structured environment only available

through placement outside the home.”

       The court did not simply follow the probation department’s recommendation.

Rather, the court thoroughly considered the evidence presented at the hearing and

explicitly stated the grounds for its ruling. Specifically, it based its ruling on its findings

that the nature of minor’s prior offense was serious, that minor’s mother had exhibited

poor judgment and an inability to control his actions, and that during probation minor

showed a disregard for the court’s orders. These findings constitute substantial evidence

that minor could not be successfully rehabilitated in-home and thus that out-of-home

probation would be in minor’s best interests.




                                               7
       Moreover, minor is incorrect that the probation department did not consider the

less restrictive alternative of placement in a relative’s home. The senior probation officer

testified that the department had considered relative placement but had decided against it

because minor’s treatment needs were immediate and the delay in finding a suitable

relative could be too long. Because the probation officer’s testimony was before the

court, the court is presumed to have also “considered and rejected” the option of

placement in a relative’s home. (In re Teofilio A. (1989) 210 Cal.App.3d 571, 577.)

       In any event, there would be no error even if the court had not considered placing

minor with a relative. This is because there is no requirement that a court must consider

multiple less restrictive alternatives. Juvenile placements are “primarily ‘rehabilitative’ ”

and “juvenile placements need not follow any particular order under section 602 and

section 777, including from the least to the most restrictive.” (In re Eddie M. (2003) 31

Cal.4th 480, 507.) “Nor does the court necessarily abuse its discretion by ordering the

most restrictive placement before other options have been tried.” (Ibid.) Here, the court

explicitly considered and rejected the less restrictive alternative of continued in-home

probation. It was not then required to consider an intermediary placement option

between in-home probation and a treatment facility.

       Next, minor claims that the court relied on improper evidence in out-of-home

probation. We disagree with each of minor’s arguments and address them in turn.

       First, minor incorrectly contends that the court was not allowed to consider the

probation officers’ testimony about law enforcement’s pending investigation into

mother’s allegedly inappropriate behavior because it was “unsubstantiated hearsay.” In


                                              8
fact, a juvenile court is authorized to consider otherwise inadmissible hearsay at a

disposition hearing so long as it is relevant and material to the disposition. (§§ 706,

725.5; In re Michael V. (1986) 178 Cal.App.3d 159, 170.) The information contained in

the police report was directly relevant to mother’s ability to make appropriate parenting

decisions, which is a material consideration in determining whether in-home placement

would be effective for minor’s rehabilitation. The court acknowledged that the

information about minor’s mother was hearsay; however, it nevertheless found that

information was “sufficiently concerning” with regard to her judgment as a parent, and

therefore her ability to provide a rehabilitative environment for minor.

         Second, minor contends that the court improperly based its conclusion that in-

home probation would be ineffective on his gang affiliation, his father’s gang affiliation,

and his mother’s decision to have a child with a gang member. Minor is incorrect. As

stated ante, the court based its ruling on its findings that minor’s robbery was a serious

offense, minor was unwilling to follow the court’s orders, and minor’s mother was

incapable of providing an environment where he could successfully rehabilitate. The

court did not find that minor was currently affiliated with a gang; instead, it found that

minor was affiliated with a gang at the time he committed the robbery. Additionally, the

court referenced father’s gang affiliation and mother’s relationship with father only to

provide background on minor’s family history to its ruling. The court did not find or

base its ruling on the fact that father was affiliated with a gang or mother’s decision to

have a child with father affected her ability to provide a rehabilitative environment for

minor.


                                              9
       Third, minor asserts that the court’s finding that he had a “ ‘history of serious

offenses’ ” was not supported by substantial evidence. We disagree. Minor admitted that

he robbed a 12-year-old boy then threatened retribution from his gang if the boy

contacted the police. Minor has also admitted that he used to smoke marijuana on a daily

basis and used to sell cocaine. Moreover, two of minor’s probation violations involved

marijuana. While all of these offenses may not be violent in nature, they are serious and

show a lack of concern for the court’s prior orders.

       We conclude that the court’s placement ruling was a valid exercise of its

discretion and was supported by substantial evidence. Because we find no error in the

court’s ruling, we need not address minor’s argument that the cumulative effect of the

court’s errors amounts to reversible error.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                         RAMIREZ
                                                                                           P. J.


We concur:


McKINSTER
                                   J.


MILLER
                                   J.


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