Filed 1/22/14 In re I.M. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT


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


THE PEOPLE,                                                                             F066477

         Plaintiff and Respondent,                                           (Super. Ct. No. 512867)

                   v.                                                                OPINION
I.M.,

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Nan
Cohan Jacobs, Judge.
         Candice L. Christensen, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, and Kathleen A. McKenna,
Deputy Attorney General, for Plaintiff and Respondent.

                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J., and Peña, J.
       The court continued appellant, I.M., as a ward of the court (Welf. & Inst. Code,
§ 602),1 after he admitted allegations charging him with possession of a concealed dirk or
dagger (Pen. Code, § 21310).
       On appeal, appellant contends the court erred by ordering him into placement: 1)
without an adequate case plan; 2) without considering limiting his mother’s right to make
educational decisions for him; and 3) without completing form JV-535. We affirm.
                                            FACTS
       On August 31, 2011, then 10-year-old appellant and four other male juveniles
broke into a home on Guthrie Avenue in Modesto.
       On January 7, 2012, an ongoing dispute between appellant’s family and a woman
culminated in appellant and his brother, N.M., breaking the windows of a car belonging
to the woman’s boyfriend.
       On February 9, 2012, appellant was arrested and admitted participating in the
Guthrie Avenue burglary and a second uncharged burglary.
       On February 14, 2012, the district attorney filed a petition charging appellant with
first degree burglary (Pen. Code, § 459).
       On March 6, 2012, appellant was released from custody on house arrest.
       On April 7, 2012, officers from the house arrest program conducted a home visit at
appellant’s residence. Appellant’s mother told the officers that appellant did not take the
house arrest program seriously and would often leave without her permission.
       On May 21, 2012, the court issued a warrant for appellant’s arrest after he failed to
appear at a hearing on that date.
       On June 6, 2012, appellant was arrested on the outstanding warrant.


1       Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.


                                              2
       On July 19, 2012, appellant was released from custody.
       On July 30, 2012, the probation department filed a Dispositional Social Study
Report.
       On August 27, 2012, the court made appellant a ward of the court and placed him
on probation. The court also committed appellant to juvenile hall for 100 days with
credit for 79 days already served.
       On November 3, 2012, at approximately 1:48 a.m., Modesto police officers
conducted a traffic stop of a stolen vehicle driven by a 13-year-old male with then
12-year-old appellant and two other juveniles as passengers. Appellant initially gave a
false name. He was also found to be in possession of a sharpened tool with a homemade
handle.
       On November 6, 2012, the district attorney filed a subsequent petition charging
appellant with vehicle theft (count 1/Veh. Code, § 10851, subd. (a)), receiving stolen
property (count 2/Pen. Code, § 496d, subd. (a)), and carrying a concealed dirk or dagger
(count 3).
       On November 21, 2012, the probation department filed a Dispositional Social
Study. The report contained much of the same information as the earlier report and
indicated that appellant’s father was serving a prison sentence on a conviction for
domestic violence (Pen. Code, § 273.5, subd. (a)). Appellant’s mother was on probation
for possession for sale of a controlled substance. His brother, N.M., was declared a ward
of the court on June 15, 2011, based on his adjudication for first degree burglary and was
in custody pending a violation of probation hearing. Appellant reported that he last
attended school about two weeks earlier and that he was receiving failing grades. He also
admitted using marijuana,2 not obeying his curfew, sneaking out of the house without

2      The earlier report indicates that appellant admitted smoking marijuana daily.


                                             3
permission, and running away from home twice. Appellant’s mother reported that
appellant usually received failing grades and that he was not currently attending school
because he had been expelled. However, she did not know the reason for the expulsion.
Although appellant and his mother denied he was involved in gang activity or associated
with gang members, appellant committed his most recent offenses with Norteño gang
members and the earlier report indicates appellant admitted associating with Norteño
gang members.
       The report further indicated that appellant had 17 referrals to Child Protective
Services (CPS) between May 2004 and May 2012, and that allegations of general neglect
were substantiated with respect to three referrals including one on October 20, 2011, and
one on February 7, 2012. The report recommended supervision services in an effort to
avoid the need for out-of-home placement.
       At a hearing on November 21, 2012, appellant admitted the possession of a
concealed dirk or dagger offense in exchange for the dismissal of the two other counts.
Afterwards, based on the February 7, 2012, referral to CPS, the juvenile court ordered the
probation department to prepare a section 241.13 report to assist the court in determining
which status, dependent or ward, was appropriate for appellant.
       On December 7, 2012, the probation department filed a section 241.1 Joint
Assessment Report, which indicated that the October 20, 2011, CPS referral involved
appellant’s father physically abusing appellant’s mother in front of a seven-year-old

3      Section 241.1 provides: “Whenever a minor appears to come within the
description of both Section 300 and Section 601 or 602, the county probation department
and the child welfare services department shall, pursuant to a jointly developed written
protocol described in subdivision (b), initially determine which status will serve the best
interests of the minor and the protection of society. The recommendations of both
departments shall be presented to the juvenile court with the petition that is filed on
behalf of the minor, and the court shall determine which status [dependent or ward] is
appropriate for the minor....” (Italics added.)

                                             4
child. Appellant’s father was arrested on that date. The February 7, 2012, referral
involved appellant’s mother not being able to control or provide appropriate supervision
for her children. Appellant’s mother accepted voluntary family maintenance services as a
result of this latter referral and had been receiving services since February 17, 2012.
       The report reiterated the circumstances of appellant’s criminal history. It also
indicated the family was moving to a new home where appellant would have his own
room, that appellant’s father had recently been released from prison but was not allowed
back into the family residence, and that appellant’s mother was suffering from a brain
tumor. The report recommended that appellant be continued a ward of the court under
the continued supervision of the probation department. The report did not recommend
placement for appellant.
       At a hearing on December 11, 2012, the probation department filed the following
documents: a Minor and Family Assessment form and a Case Plan that were originally
filed on February 14, 2012, which had updated comments and notes; and an Additional
Case Plan and Information for Placement form that was only partially completed.4
During the hearing, Katherine Kincheloe, a social worker from the Community Services
Agency, informed the court that appellant’s family was making minimal progress with
the voluntary family maintenance services. Kincheloe also advised the court that
appellant’s mother reported she had a brain tumor that required surgery and a second
tumor that required further examination. Appellant’s mother also reported that she had
five to six of her children and two grandchildren living in her household.
       The court found that the status of ward would best serve appellant and stated it
was going to order appellant into placement. It also continued the hearing two days to

4      This latter form indicated, in pertinent part, that appropriate placement for
appellant would include family counseling, group and individual therapy, and substance
abuse treatment.


                                             5
allow the probation department to “prepare placement terms.” In explaining its decision
to appellant’s mother, the court stated, “After hearing from Ms. Kincheloe and reviewing
all of the reports, I just don’t see that I have a choice given where [appellant] is heading
and what’s been going on with this family. We’ve tried.” (Italics added.)
       On December 13, 2012, the court set appellant’s maximum term of confinement at
80 months and ordered him into placement. However, the probation department never
provided a complete, updated case plan, nor did the court order the department to prepare
such a plan.
                                       DISCUSSION
The Case Plan

Appellant Forfeited Issues Relating to the Case Plan Required by Section 706.5 by his
Failure to Object in the Juvenile Court
       If the probation officer recommends placement in foster care, the social study
“shall include a case plan, as described in Section 706.6.” (§ 706.5, subd. (a).) The case
plan “shall either be attached to the social study or incorporated as a separate section
within the social study.” (§ 706.6, 1st par.) If, however, “placement in foster care is not
recommended by the probation officer prior to disposition, but the court orders foster care
placement, the court shall order the probation officer to prepare a case plan, as described
in Section 706.6, within 30 days of the placement order.” (§ 706.5, subd. (b).) Section
706.6 provides a detailed list of information the case plan must provide, including, for
example, the following: “an assessment of the minor’s and family’s strengths and needs”
and the “type of placement best equipped to meet those needs” (§ 706.6, subd. (b)); “a
description of the type of home or institution in which the minor is to be placed”
(§ 706.6, subd. (c)); “specific time-limited goals and related activities designed to enable
the safe return of the minor to his or her home” (§ 706.6, subd. (e)); and “the projected




                                              6
date of completion of the case plan objectives and the date services will be terminated”
(§ 706.6, subd. (f)).
       Here, since the court ordered appellant into placement, it erred by not ordering the
probation department to prepare a complete, updated case plan within 30 days for
appellant. Appellant couches the error in terms of the probation department failing to
provide a complete, updated case plan. He argues that reversal is required because the
Additional Case Plan filed on December 11, 2012, was missing much of the required
information and this denied him his right to due process. However, neither appellant nor
his attorney ever objected in the juvenile court to this case plan or to the court’s failure to
order the probation department to prepare a complete, updated case plan within 30 days.
       “It is well established that procedural errors may not be raised at the appellate
level if they were not raised in the trial court level. ‘[E]ven constitutional rights,
including those of a minor in the area of juvenile court procedure, will ordinarily be
[forfeited] by silence, i.e., by their nonassertion.’” (In re Christopher S. (1992) 10
Cal.App.4th 1337, 1344.) “Any other rule would ‘“‘permit a party to play fast and loose
with the administration of justice by deliberately standing by without making an
objection of which he is aware and thereby permitting the proceedings to go to a
conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’”
[Citations.]’” (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
       In the adult criminal context, “[i]t is settled that failure to object and make an offer
of proof at the sentencing hearing concerning alleged errors or omissions in the probation
report waives the claim on appeal.” (People v. Welch (1993) 5 Cal.4th 228, 234-235
(Welch).) And, in In re Travis W. (2003) 107 Cal.App.4th 368 (Travis W.), the court
applied the Welch waiver rule in a juvenile proceeding where the minor “fault[ed] the
probation officer’s report for ‘limited investigation’ and faulty reasoning....” (Travis W.,
at p. 379.) Here, as in Travis W., appellant challenges the content of his additional case

                                               7
plan for the first time on appeal. We conclude, based on the foregoing principles, that
appellant forfeited any claim of error with respect to the incomplete case plan provided
by the probation department and/or to the court’s failure to order the probation
department to prepare a complete, updated case plan.
Appellant was not Denied the Effective Assistance of Counsel
       Alternatively, appellant contends he was denied the effective assistance of counsel
by defense counsel’s failure to preserve this issue on appeal by making an appropriate
objection.

              “We have previously explained that, ‘[i]n order to demonstrate
       ineffective assistance of counsel, a defendant must first show counsel’s
       performance was “deficient” because his “representation fell below an
       objective standard of reasonableness ... under prevailing professional
       norms.” [Citations.] Second, he must also show prejudice flowing from
       counsel’s performance or lack thereof. [Citations.] Prejudice is shown
       when there is a “reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been
       different. A reasonable probability is a probability sufficient to undermine
       confidence in the outcome.” [Citations.]’” (In re Avena (1996) 12 Cal.4th
       694, 721.)

              “[However,] a court need not determine whether counsel’s
       performance was deficient before examining the prejudice suffered by the
       defendant as a result of the alleged deficiencies.... If it is easier to dispose
       of an ineffectiveness claim on the ground of lack of sufficient prejudice,
       which we expect will often be so, that course should be followed.”
       (Strickland v. Washington (1984) 466 U.S. 668, 697.)
       Appellant was only 11 years old when he committed a residential burglary with
four other males and he admitted to an officer that he was involved in a second uncharged
burglary. On January 7, 2012, appellant and his brother broke the windows of a car
belonging to the boyfriend of a woman with whom appellant’s family had an ongoing
dispute. On November 3, 2012, appellant was accompanied by Norteño gang members
when he was arrested in the early morning hours while riding around in a stolen vehicle


                                               8
in possession of a concealed dirk or dagger. Further, appellant was not attending school,
was failing, and was experimenting with marijuana. Appellant also would leave his
residence without permission, stayed out after his curfew, had a history of running away,
and did not abide by the court’s home arrest program.
       Moreover, appellant’s mother was unable to adequately supervise appellant. As
recently as February 7, 2012, a referral alleging her children were out of control and she
was unable to supervise them was found to be substantiated by CPS. Additionally, her
serious, ongoing medical problems virtually assured she would not be able to supervise
appellant, especially since her household consisted of up to six of her children, including
appellant and one brother who was also a ward of the court, and two grandchildren.5
Thus, in view of the seriousness of appellant’s conduct, his poor school attendance and
performance, and his mother’s inability to adequately supervise him, it is not reasonably
probable the court would have foregone placement for appellant even if an objection by
defense counsel had resulted in the probation department submitting a complete, updated
case plan. Accordingly, we reject appellant’s ineffective assistance of counsel claim.
       Furthermore, for essentially the same reasons, even if appellant’s claim was
properly before us, we would find appellant was not prejudiced by the probation
department’s failure to provide the court with a complete, updated case plan for
appellant. (In re Riva M., supra, 235 Cal.App.3d at pp. 412-413 [“Because the issue is
not one of constitutional dimension, the question is whether there is a reasonable




5       Appellant’s father was not an appropriate person to take custody of appellant
and/or supervise him because of his extensive criminal history and his parole status as a
result of his recent release from prison on his conviction for domestic violence.


                                             9
probability the outcome would have differed in the absence of the procedural
irregularity”].)6
       Appellant contends the failure to provide a complete, updated case plan was
prejudicial because: 1) the court did not have current information on appellant’s grades
and school attendance, disciplinary history, physical and mental health, etc.; and 2)
appellant’s family had made substantial “life changes” including the procurement of new
housing. He also cites In re Devin J. (1984) 155 Cal.App.3d 1096 (Devin J.) and In re
L.S. (1990) 220 Cal.App.3d 1100 (L.S.) to contend the failure to provide a complete,
updated case plan requires reversal.
       In Devin J., before the minor was committed to the Department of Juvenile Justice
(DJJ) (formerly CYA), the probation department provided the court with an evaluation
and social study prepared for the minor’s fitness hearing, but not a current social study
report. The Devin J. court found that because the fitness and the disposition hearings
served different purposes, “a social study prepared for the limited purpose of a fitness
hearing fails to comply with the requirement of a current social study for a dispositional
hearing.” (Devin J., at p. 1101.) Thus, it reversed the juvenile court’s commitment order.
(Id. at p. 1102.)
       In L.S., the juvenile court committed a minor adjudicated for possession of cocaine
base for sale (Health & Saf. Code, § 11351.5) to the DJJ without a current probation
report, although it apparently had available a 19-month old report that was prepared for a
previous disposition hearing. In reversing the court’s commitment order, this court noted
that the preparation of a current social study report is mandatory and it found that a

6      Although appellant perfunctorily asserts that the court deprived him of his
constitutional right to due process by ordering him into placement without an adequate
case plan, he forfeited this issue by his failure to offer any argument or pertinent authority
in support of this contention. (People v. Whalen (2013) 56 Cal.4th 1, 72, fn. 28.)


                                             10
“social study report prepared 19 months earlier as a result of appellant’s [prior
adjudication] does not satisfy this requirement.” (L.S., supra, 220 Cal.App.3d at p.
1105.)
         Devin J. and L.S. are inapposite because, here, the juvenile court had before it a
current social study report, a 241.1 report, and a social study report from July 2012, as
well as the incomplete case plan. Collectively, these documents provided the court with a
wealth of current information on appellant including the information noted earlier that
appellant erroneously claims was not before the court. Further, the information provided
by these documents was more than adequate for the court to address the central issue in
appellant’s case, whether or not to place him outside the home. (Cf. In re Eugene R.
(1980) 107 Cal.App.3d 605, 615 [failure to provide complete social study harmless where
requirement substantially complied with]; In re Melvin J. (2000) 81 Cal.App.4th 742, 755
[where the juvenile court “was aware of all underlying facts” at the time of the
dispositional hearing, the lack of a current probation report was not reversible error].)
Moreover, appellant cites his family’s procurement of new housing as the only significant
change that occurred since a completed case plan was filed in February 2012 and the
court was aware of this change at least as of the December 11, 2012, hearing. Thus, even
if appellant’s claim were properly before us, we would reject it because appellant has not
shown how he was prejudiced by the failure of the probation department to provide the
court with a complete, updated case plan for him.
The Alleged Failure to Make Educational Findings

         California Rules of Court, rule 5.651(b)(2) (rule 5.651(b)(2)) provides:

                “At the disposition hearing ..., the juvenile court must address and
         determine the child’s general and special education needs, identify a plan
         for meeting those needs, and provide a clear, written statement using
         Findings and Orders Limiting Right to Make Educational Decisions for the
         Child, Appointing Educational Representative, and Determining Child’s
         Educational Needs (form JV-535), specifying the person who holds the

                                              11
       educational rights for the child. The court’s findings and orders must
       address the following:

             “(A) Whether the child’s educational, physical, mental health, and
       developmental needs are being met;

              “(B) Any services, assessments, or evaluations, including those for
       special education and related services, that the child may need;

              “(C) Who is directed to take the necessary steps for the child to
       begin receiving any necessary assessments, evaluations, or services;

              “(D) If the child’s educational placement changed during the
       reporting period, whether [¶] (i) The child’s educational records, including
       any evaluations of a child with a disability, were transferred to the new
       educational placement within two business days of the request for the
       child’s enrollment in the new educational placement; and [¶] (ii) The child
       is enrolled in and attending school; and

               “(E) Whether the parent’s or guardian’s educational rights should be
       limited; [¶] (i) If the court finds the parent’s or guardian’s educational
       rights should not be limited, the court must direct the parent to his or her
       rights and responsibilities in regard to the child’s education as provided in
       rule 5.650(e) and (f); or [¶] (ii) If the court finds the parent’s or guardian’s
       educational rights should be limited, the court must determine who will
       hold the child’s educational rights. The court must explain to the parent or
       guardian why the court is limiting his or her educational rights and must
       direct the parent or guardian to the rights and responsibilities of the
       education representative as provided in rule 5.650(e) and (f).”
       Appellant contends the court erred by its failure to complete form JV-535, as
required by rule 5.651(b)(2), and by its failure to consider limiting his mother’s right to
make educational decisions for him.
       Appellant did not object to the court’s failure to complete form JV-535 or to the
court’s alleged failure to consider limiting his mother’s right to make educational
decisions. Thus, for the reasons discussed in the previous section, we conclude appellant
forfeited his right to raise these issues on appeal. (Travis W., supra, 107 Cal.App.4th at
p. 379.)


                                              12
       Alternatively, appellant contends he was denied the effective assistance of counsel
by defense counsel’s failure to preserve these issues by objecting in the juvenile court.
However, appellant has again failed to show he was prejudiced by defense counsel’s
alleged deficient representation. (Strickland v. Washington, supra, 466 U.S. at p. 697.)
       “[I]t is defendant’s burden on appeal to affirmatively demonstrate error—it will
not be presumed. [Citations.]” (People v. White Eagle (1996) 48 Cal.App.4th 1511,
1523.) Accordingly, we will not presume that the court failed to consider limiting the
right of appellant’s mother to make educational decisions for him because appellant does
not cite any evidence in the record that supports this contention.
       Nevertheless, we note appellant’s dispositional report did not recommend the
court issue an order limiting his mother’s right to make educational decisions for him.
Nor did defense counsel or anyone else express any doubt as to the ability of appellant’s
mother to advocate for his educational needs. Further, although appellant’s mother was
facing serious health issues, there is no evidence in the record that suggests they affected
her ability to make educational decisions for appellant. Moreover, the court’s placement
order should allow appellant’s mother to focus more on appellant’s educational needs
because it relieved her of the stress involved in supervising appellant on a daily basis.
Thus, even if the court did not consider limiting the right of appellant’s mother to make
educational decisions for him, we find the failure to do so was harmless.
       Nor has appellant shown how he was prejudiced by the court’s failure to fill out
form JV-535. The main impediment to appellant’s educational success was his lack of
school attendance, which was caused and/or exacerbated by his delinquent behavior, his
poor choice of peer associations, and his drug use. The juvenile court clearly was aware
of its duty to consider appellant’s educational needs and it considered and addressed
these needs, stressing the importance of appellant’s school attendance, when it made the
following order at appellant’s disposition hearing:

                                             13
              “School rule has changed. And it will be in an attachment. You’re
       to attend school. Do not have any unexcused absences or tardies.
       Maintain passing grades in all graded classes. Comply with all school rules
       and regulations concerning behavior. Do not leave school during school
       hours, including the lunch period. And upon high school graduation or
       G.E.D. you’re to continue your education and/or seek and maintain steady
       employment.” (Italics added.)
       During the disposition hearing, neither defense counsel nor appellant’s mother
requested any additional educational orders, testing, or evaluations. Further, the court’s
disposition order addressed many of the issues it was required to address by rule
5.651(b)(2) including the underlying causes of appellant’s poor school performance.
Besides specifically addressing appellant’s poor school attendance, the court imposed
drug, alcohol and gang conditions, and it ordered appellant to participate with his parent
or guardian in counseling sessions approved of and as directed by his probation officer.
Additionally, a placement form executed by appellant’s probation officer on December
11, 2012, indicates appellant’s placement would include family counseling, group and
individual therapy, and substance abuse treatment. It is clear from the foregoing that the
juvenile court adequately considered appellant’s educational needs in ordering him into
placement and that appellant suffered no prejudice as a result of the court’s failure to
formalize its educational findings in form JV-535. Accordingly, we reject appellant’s
ineffective assistance of counsel claim.
                                      DISPOSITION
       The judgment is affirmed.




                                             14
