People v. Nicole H.

confinement. In the published portion of this opinion we uphold the decision to remove appellant from her home, but conclude no substantial evidence justified the court’s distant placement of her. We reverse and remand with instructions that the court reconsider that placement. In the unpublished portion we remand for the trial court to modify the search condition and specify the maximum time of confinement.

PROCEDURAL BACKGROUND

In May 2014, the Contra Costa County District Attorney’s Office filed a juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a))^[1] alleging that appellant committed an assault by force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4)). In September, appellant admitted the allegation.

In October 2014, following a contested dispositional hearing, the juvenile court adjudged appellant a ward of the court and ordered that she be removed from her father’s custody and detained in juvenile hall pending placement. The court’s oral and written orders suggested that the probation office consider two placements, Environmental Alternatives and the Children’s Home of Stockton. The court also imposed a number of probation conditions, including a condition permitting searches of appellant’s cell phone and other electronic devices. In November, appellant was placed at the Warner Mountains Group Home. This appeal followed.

On our own motion, we take judicial notice of the facts that (1) Environmental Alternatives is in the City of Tracy; (2) the Children’s Home of Stockton is in the city of Stockton; (3) both cities are in San Joaquin County, which is the county directly east of Contra Costa County; (4) the distance between Stockton and appellant’s father’s home in Oakley is approximately 40 miles; and (5) the distance between Tracy and Oakley is approximately 30 miles. (Evid. Code, § 452, subd. (h); People v. Posey (2004) 32 Cal.4th 193 , 215, fn. 9 [ 8 Cal.Rptr.3d 551 , 82 P.3d 755 ] (Posey).) In addition, on our own motion, we take judicial notice of the facts that (1) the Warner Mountains Group Home is in Canby, California; (2) Canby is in Modoc County, just south of the Oregon border; and (3) the distance between the group home in Canby and appellant’s father’s home in Oakley is approximately 340 miles. (Evid. Code, § 452, subd. (h); Posey, supra, 32 Cal.4th at p. 215, fn. 9.)

FACTUAL BACKGROUND^[2]

On the afternoon of January 22, 2014, appellant arranged for a friend to lure the victim, E.Y., to Heron Park in Brentwood. Appellant and the victim

interest and the best interest of the public. (§ 202, subd. (b).) Additionally, minors who have committed crimes must receive the care, treatment, and guidance that holds them accountable for their behavior, is appropriate for their circumstances, and conforms with the interest of public safety and protection. (Ibid.) This guidance may include punishment that is consistent with the rehabilitative objectives. (Ibid.)’ ” (Khalid B., supra, 233 Cal.App.4th at p. 1288.)

At the dispositional hearing, appellant objected to an out-of-home placement. She argued this was her first arrest, and referred the court to October 2014 letters from teachers and administrators at her high school stating that her behavior and academic performance had been excellent.^[3] Appellant’s father testified regarding the discipline he imposed after the assault and appellant’s good behavior since the incident.

Using an assessment tool, the probation department determined that appellant was at low risk for re-offense. Nevertheless, the department recommended an out-of-home placement based on the nature of the offense, appellant’s lack of remorse, and her need for intensive counseling in a “structured and therapeutic environment.” In removing appellant from her father’s custody, the juvenile court emphasized appellant’s role in the “brutal” and “outrageous” assault on the victim. The court also emphasized that appellant denied feeling remorse and showed no emotion when probation showed her the video of the assault. The court stated, “And the fact that [appellant] had no look on her face while watching [the video], I don’t understand. And it does show a complete void; something has happened along the way to cut off that ability to empathize, to feel remorse, to be ashamed. [¶] I really think, [appellant], that there is something that needs to be addressed.” The court also said it believed appellant’s lack of empathy meant she posed a danger to others.

Appellant first argues the evidence does not support the juvenile court’s finding that her welfare required that custody be taken from her father. (§ 726, subd. (a)(3).) We disagree. The juvenile court could reasonably infer from the nature of the attack and appellant’s lack of remorse that she was a danger to the community and required treatment in a structured setting. The juvenile court did not abuse its discretion in removing appellant from her father’s home.

On the other hand, nothing in the record supported placing appellant at an institution many hours away from her home. “Although public safety

and the rehabilitation of the minor (presumed to serve the best interests of the delinquent minor) are the preeminent goals of the juvenile law relating to delinquent minors, it is also true that family reunification and the reintegration of the minor into his family are statutorily recognized to be important and complementary goals.” (In re James R. (2007) 153 Cal.App.4th 413 , 434 [ 62 Cal.Rptr.3d 824 ].) Thus, while section 727, subdivision (a), authorizes a juvenile court that adjudges a minor a ward of the court under section 602 to “make any reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor,” section 727.1 specifies various criteria the court must consider in making an out-of-home placement, including proximity of the placement to the minor’s parent’s home. In particular, section 727.1, former subdivision (a), in effect at the time of appellant’s placement, provided, “[w]hen the court orders the care, custody, and control of the minor to be under the supervision of the probation officer for foster care placement pursuant to subdivision (a) of Section 727, the decision regarding choice of placement shall be based upon selection of a safe setting that is the least restrictive or most family like, and the most appropriate setting that is available and in close proximity to the parent’s home^[4] consistent with the selection of the environment best suited to meet the minor’s special needs and best interests.”^[5] (Italics added; see also James R., at p. 432 [§ 727.1 “illustrate[s] the importance of the family connection in the care and rehabilitation of the minor”].) Furthermore, former section 706.6, which specified information to be included in a case plan when foster care is recommended (see § 706.5), provided, “[a]n appropriate placement is a placement in the least restrictive, most family-like environment in closest proximity to the minor’s home, that meets the minor’s best interests and special needs.”^[6] (§ 706.6, former subd. (c), italics added.) Thus, at the time of appellant’s placement, and currently, sections 727.1 and 706.6 expressly require the juvenile court to consider the nearness of the placement to the minor’s home, in order to achieve the goals of family reunification and rehabilitation. Nevertheless, a minor’s special needs and best interests may justify a distant placement.

The record is devoid of any evidence or reasoning supporting a group home placement far from appellant’s father’s home. At an October 28, 2014 dispositional hearing before Judge Rebecca Hardie, the juvenile court rejected appellant’s plea to be placed on probation in her father’s home and recommended that the probation department consider “Environmental Alternatives” and “Children’s Home of Stockton” as “potential placements]” for appellant. In an attempt to reassure appellant and her family, the court stated, “And I want everyone to understand that placement is a place to get really intensive therapy, not only for you, Nicole, but for the family. And they encourage the family to participate. You earn weekend passes home.” At a review hearing on November 13, again before Judge Hardie, the court noted, “I see that a referral has been sent to Environmental Alternatives as well as Children’s Home of Stockton and that probation is awaiting response.” The referral notice also stated a referral had been sent to Warner Mountains Group Home, but the juvenile court did not reference that referral.^[7]

On November 20, 2014, appellant was placed at and transported to Warner Mountains Group Home. A review hearing took place on November 26, but this time before Judge Lois Haight. The juvenile court noted appellant had been transported to Warner Mountains Group Home,^[8] commenting that it was a “terrific” placement and “I did an unannounced visit up there, and, let me tell you, if you are going to do an unannounced visit to a place that’s seven or eight hours away, you stay a long time.” Appellant’s counsel noted the placement was “a little bit of a change of circumstance for my client’s father,” in light of the juvenile court’s prior directive that he have counseling with appellant on a weekly basis. Counsel requested that the court modify that order to specify monthly counseling or phone counseling “to accommodate the distance now.” Judge Haight responded, “You know, I was not the judge that did this. I feel uncomfortable modifying another judge’s orders.” Nevertheless, the court authorized monthly telephonic counseling. Judge Haight also asked whether Judge Hardie was aware Warner Mountains Group Home was under consideration. Counsel stated they had actually been anticipating a placement in Stockton. Judge Haight acknowledged that, and indicated she would let Judge Hardie know she had modified the counseling requirement.

As is evident from the above description of the proceedings, Judge Hardie seemed to anticipate a placement in Stockton or Tracy, and certainly made no express finding that a remote placement in Canby met “the minor’s special needs and best interests.” (§ 727.1.) Neither did Judge Haight make any such

determination; that is, she was not asked to and did not consider the appropriateness of appellant’s placement in light of the evidence in the record. Furthermore, the probation officer’s report and recommendation prepared for the October 2014 dispositional hearing made a strong case for out-of-home placement, but did not provide any reasons why a placement at Warner Mountains Group Home would be in appellant’s best interests. According to the report, “Wardship with out-of-home placement is the appropriate response to the issues the minor and her family present. . . . The minor appears to be affected by her mother,[^[9] ] and Nicole will need ongoing therapy in order to address the hardships she dealt with when she was residing with her mother. The minor’s father seems to be an appropriate parental figure and certainly has made efforts to obtain services for his daughter. Nonetheless, the minor would benefit from a structured and therapeutic environment such as out-of-home placement to fully identify and address her underlying issues, cognitive distortions, the stressors in her life, her relationship with her mother, and her use of violence to resolve conflict. In a residential placement setting, the minor will attend school regularly, and receive proper guidance and intensive therapy.”

On appeal, the People argue the placement was beneficial because it took appellant away from “negative influences.”^[10] However, there is no evidence in the record supporting that assertion. There is no evidence that appellant was being subjected to ongoing negative influences at home, and, even if there were such evidence, there is no indication the probation department or the juvenile court believed a placement further away than Stockton or Tracy was necessary to remove appellant from whatever negative influences existed in Oakley.^[11] Instead, the juvenile court and the probation officer’s report agreed on the importance of fostering the relationship between appellant and her father, which the Warner Mountains Group Home placement made considerably more difficult. Indeed, Judge Hardie sought to support appellant’s relationship with her father by directing the father to engage in weekly therapy with appellant, but that order became effectively impossible to

implement when appellant was sent to Canby. Accordingly, the People have not shown that any evidence in the present record supported a determination the Warner Mountains Group Home placement was in appellant’s best interests.

Case law addressing the placement of juveniles at the Division of Juvenile Justice (DJJ; formerly the California Youth Authority) is instructive. “[T]he statutory scheme contemplates a progressively more restrictive and punitive series of dispositions starting with home placement under supervision, and progressing to foster home placement, placement in a local treatment facility, and finally placement at the DJJ” or California Youth Authority. (In re M.S. (2009) 174 Cal.App.4th 1241 , 1250 [ 95 Cal.Rptr.3d 273 ].) Nevertheless, there is no rule that such a placement cannot be ordered unless less restrictive placements have been attempted, and there is no requirement that the juvenile court expressly state on the record the reasons for rejecting less restrictive placements. (.Ibid., In re Teofilio A. (1989) 210 Cal.App.3d 571 , 577 [ 258 Cal.Rptr. 540 ] (Teofilio A.); see also In re Ricky H. (1981) 30 Cal.3d 176 , 184 [ 178 Cal.Rptr. 324 , 636 P.2d 13 ] [although juvenile court failed to articulate reasons for California Youth Authority commitment, evidence in the record showed that “the purposes of the Juvenile Court Law could not be accomplished by” a less restrictive placement (fn. omitted)].) Rather, “if there is evidence in the record to show a consideration of less restrictive placements was before the court, the fact the judge does not state on the record his consideration of those alternatives and reasons for rejecting them will not result in a reversal.” (Teofilio A., at p. 577.) On the other hand, “there must be some evidence to support the judge’s implied determination that he sub silentio considered and rejected reasonable alternative dispositions.” (Ibid.; accord, In re Angela M. (2003) 111 Cal.App.4th 1392 , 1396 [ 4 Cal.Rptr.3d 809 ].)^[12] In the present case, as noted previously (fn. 7, ante), there is some basis to conclude Judge Hardie considered the Warner Mountains Group Home placement, because the probation department informed her of its referral. However, any implied finding that the placement was in appellant’s best interests is not supported by substantial evidence in the record.

In summary, appellant was placed at Warner Mountains Group Home without any evidence in the record that the placement was in her best interests despite the lack of proximity to her father’s home. This was contrary

to former and current sections 727.1 and 706.6, and requires that this court reverse and remand for reconsideration of the placement in light of the statutory directives.^[13]

II., III.^[14]

DISPOSITION

The juvenile court’s dispositional order is reversed. The matter is remanded with directions that the juvenile court reconsider appellant’s placement, taking into consideration the statutory preference for a placement proximate to her father’s home; modify the electronics search probation condition consistent with this decision; and specify the maximum time in confinement and the maximum remaining time in confinement.

Needham, J., and Bruiniers, J., concurred.