Opinion
M.S. admitted two counts of a Welfare and Institutions Code
The minor contends the court violated the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), by committing him to the DJJ instead of a less restrictive placement because the minor has diabetes. He further contends the court violated his due process rights by considering his diabetes as a factor in selecting the appropriate placement.
We hold the court did not abuse its discretion by committing the minor to the DJJ. The claimed ADA violation is not cognizable in the context of this appeal as grounds for reversal of an otherwise valid dispositional order. We also hold the dispositional order did not violate due process, and affirm the order.
A. The Current Petition
On June 19, 2008, a group of 20 to 25 males and females playing hide-and-seek at an elementary school were approached by a group of males in a car asking if they “needed something.” The hide-and-seek players interpreted the inquiry as an offer of dmgs for sale and said they did not want anything. Words were exchanged and, within minutes, a group of 12 to 15 males, wearing red and armed with rocks, bats, bottles, and wooden sticks with nails sticking out, began to attack. The armed group, including the minor, yelled “Norte” as they attacked. One of the victims was stabbed in the lower back. Another victim was hit in the shoulder with a bottle, and a third victim suffered a contusion and two-inch laceration to his head. Several more also suffered injuries and were treated at the scene.
A short while later, the police located the car driven by some of the attackers outside a nearby home. Defendant, a “known member of the Norteño criminal street gang,” was inside the house with several other known gang members. The police found a large amount of marijuana in the house, and a knife with dried red fluid on it in the front yard.
B. Prior Petitions
The original section 602 petition, filed on June 12, 2007, alleged that the minor, then age 14, obstructed a teacher and committed two misdemeanor batteries. It also alleged that one of the batteries was committed for the benefit of a criminal street gang. The minor admitted one count of battery and threatening a public officer. The street gang allegation was dismissed.
The dispositional study noted that the minor had failed nearly every class during the preceding two years and his truancy was so severe he had been referred to the school attendance review board. According to the minor, his absences were caused primarily by complications related to his diagnosed diabetes. He was receiving special education services and had an individualized education program. The minor also acknowledged that he used marijuana to alleviate depression. On August 22, 2007, the court adjudged the minor a ward of the court and placed him on probation subject to no weapons and no gang association conditions, and ordered individual and family counseling.
The dispositional study reported that the minor had not made any progress while on probation. He had only attended school two days in the fall semester. He had not attended the required drug, alcohol, and family counseling, nor had he completed any of the required community service hours, or written a court-mandated letter of apology and essay. The minor’s father believed his son’s behavioral problems were related to depression caused, in part, by the diagnosis of diabetes he received at age 11.
On January 3, 2008, the court continued the wardship and referred the minor to the Repeat Offender Prevention Program (ROPP) for intensive supervision. The probation conditions included a proscription against possession of weapons, a curfew, gang conditions, and a stay-away order naming several individuals.
Little more than a month later, on February 6, 2008, the probation officer filed a section 777 probation violation notice alleging that the minor had not attended school and had violated his curfew. On February 13, 2008, the minor admitted the probation violation and the court placed him on home electronic monitoring. He attended school on February 14. On February 20, he returned to school after a holiday but was two and a half hours late and threatened another student.
The minor’s father reported to the probation officer that the minor was out of control. The father had “talked to the minor’s doctors regarding his health issues, and the doctors informed him that not everyone conforms to treatment appropriately. The minor’s health issues stem from the minor’s unwillingness to accept that he has diabetes and treat it appropriately. [The father] says he has tried to take control of the minor’s treatment, however the minor, at times, refuses to take his insulin shots. [The father] stated [he] has gone so far as to give the minor his shot when he is sleeping, however, this action is also dangerous for the minor. Neither the minor’s father nor his doctors have devised a treatment plan that the minor has followed appropriately. . . . [The father] believes the minor needs therapy to learn how to accept his illness and treat it appropriately.” The report noted that the minor “has had the opportunity to receive counseling services through David Grant Medical Center, but
On February 27, 2008, the court continued the wardship and ordered six mandatory weekends of detention, and an additional 30 days on home electronic monitoring.
On May 19, 2008, the probation officer filed another probation violation notice alleging that the minor had failed to attend school since mid-February, tested positive for alcohol and marijuana, had been cited by the police for violating curfew, missed a probation appointment because he refused to get out of bed, and failed to appear for one of his mandatory detention weekends. The minor also failed to appear at the first hearing on the probation violations and a bench warrant issued.
He appeared on the bench warrant return on May 28. The court appointed a doctor to perform a psychological evaluation. On June 18, 2008, the minor admitted several probation violations.
The next day he committed the offenses that resulted in the current petition. The probation officer requested that the minor be in physical restraints during court proceedings because, while at juvenile hall, he aided a Norteño detainee involved in a fight with another juvenile.
C. Dispositional Hearing
The dispositional report summarized the psychological evaluation. The appointed psychologist found no psychotic or neurological problems. The tests indicated the minor showed some insensitivity to the suffering of others, and the minor acknowledged he saw nothing “wrong with using others to get what he wants.” The psychologist recommended a “medical evaluation for help with his chronic pain symptoms and diabetes.” He also stated that the minor “needs a structured, supportive environment away from gangs or similar criminal associations that he may have turned to for support and understanding not provided by his family.”
The dispositional report noted the minor had “been before the Court for violations ... on five separate occasions. The only term that he has completed is his financial obligation. All of his remaining terms are outstanding and the minor and his father have been referred by [both his present and] previous probation officers] ... for counseling services. Also, the minor’s principal at Travis Community Day[ ] has informed the . . . father that the minor needs counseling. However, there has been no follow through with counseling.”
The Juvenile Placement Screening Committee (Committee) screened his case. The Committee concluded New Foundations was not appropriate because it is a short-term placement where the minor could earn furloughs after two months, and it was not likely that family reunification and substance abuse treatment could be achieved in that short a period. The Committee found Fouts Springs Youth Facility (Fouts) to be inappropriate because it was “primarily a behavior modification program and does not have 24 hours medical staff for the minor’s diabetic needs that he requires, nor does it offer family counseling.” It found Challenge inappropriate because it did not provide substance abuse counseling or family counseling and the minor would not receive intensive supervision upon release from the program. The Committee also found placement in a group home was not a placement alternative because, due to the serious and violent nature of the offenses, it was “highly unlikely” that the probation department could find a high-level group home to accept him. Nor would a group home adequately address the need for public safety because they are usually located in residential neighborhoods.
The probation officer recommended that the minor be committed to the DJJ where both the goals for rehabilitation and protection of the community would be addressed. The DJJ would evaluate the minor to develop a treatment plan, including “substance abuse, impact on victims of crime training, schooling, [and] medical needs.” At DJJ, the minor would have the opportunity to earn a high school diploma and receive vocational training. The DJJ would also offer family counseling in a secure setting. When he turns 18 and becomes eligible for parole, DJJ offers transitional adult living services, if the minor were to choose not to reunify with his family. Six months prior to release, if it is determined that he has significant substance abuse issues, he would be housed in a rehabilitation unit. The DJJ would also retain jurisdiction of the minor until age 25, and can provide postrelease supervision services. The probation officer concluded that the DJJ was “the most comprehensive treatment plan available for the minor in addressing both community safety and the most appropriate services for the minor.”
At the dispositional hearing on August 29, 2008, the minor’s father testified that, as a young child, the minor had loved going to school. He became depressed when he was diagnosed with diabetes, and his school difficulties began after the diagnosis. His defiant behavior began at about age 12, and he became difficult to control. His diabetes is controllable with
The probation officer testified that in January of 2008 the minor was referred to ROPP. By May of 2008 he was on the top of the waiting list, but he was taken off the list when he was placed in custody for another offense. The probation officer noted that the minor had also been on the ankle monitor, and given mandatory weekend detention, but continued to reoffend.
In terms of out-of-home placement, when asked whether, “but for the diabetes issue, your recommendation might have been for Fouts,” the probation officer replied that “it might have been.” She confirmed that Fouts did not have the medical staff or treatment the minor needed. She explained that Fouts was inappropriate because the minor is a diabetic, and Fouts did not have a “24-hour medical staff,” nor did Fouts offer family counseling.
With respect to other alternatives, she repeated the same factors enumerated in the dispositional report that rendered New Foundations, Challenge, or a group home inappropriate or ineffective placements. She also testified that there were no other out-of-home placement facilities.
With respect to DJJ, the probation officer described all of the services available that would benefit the minor, including a “24-hour medical staff.” Among the criteria she used in making the DJJ recommendation were “the seriousness of the offense, the fact that this is his third offense for using and being in possession of a knife,” the injuries to the victims, and that the minor initially denied any gang affiliation and did not recognize the seriousness of the offense. Other factors she relied on were that neither being on probation nor being on the ankle monitor had deterred the minor from reoffending, and he had reoffended before he could be placed under more intensive supervision in the community.
After hearing argument from counsel,
The court concluded: “So it is not with any joy nor is it without some concern that the only alternative available to the Court is the Department of Juvenile Justice.” The court emphasized it would closely review the progress reports the DJJ is now required to submit, and if the minor were not progressing, or his needs were not being met, the court could “recall the case and review it and determine whether that placement continues to be appropriate.”
II. ANALYSIS
One of the primary objectives of juvenile court law is rehabilitation, and the 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. (In re Teofilio A. (1989)
Before we address the minor’s contention that the court order committing him to the DJJ violates the ADA, we emphasize that this is not a case in which the court failed to consider less restrictive alternatives, or where the evidence does not support the court’s finding of a probable benefit. Indeed, the minor does not even suggest that the court’s dispositional order was an abuse of discretion, and such a contention would, in any event, be unavailing.
The probation reports also included many references to the fact that the minor needed to be under the care of a doctor, had not taken charge of his own treatment, denied his condition, and failed to treat it properly. According to the father, the minor could easily become disoriented if his diabetes is not treated properly. Even under close supervision while detained at juvenile hall, the minor’s diabetes was not completely under control, and he needed to see a doctor to adjust his medication. The minor did not offer any evidence to refute the probation officer’s testimony that management of the minor’s medical condition would require a 24-hour medical staff and that Fouts did not have the appropriate medical staff on site, or nearby.
Second, the court’s finding that the DJJ commitment would be of probable benefit is amply supported by the probation officer’s testimony concerning the treatment plan, the presence of a “24-hour medical staff,” the opportunity to earn a high school diploma, and the availability of family counseling, substance abuse rehabilitation, vocational training, and postrelease supervision services.
A. ADA Claim
Rather than attempting to demonstrate that the dispositional order was an abuse of discretion, the minor contends the trial court’s decision not to place him at Fouts and instead to commit him to the DJJ violated the ADA
First, the minor did not raise the ADA issue below, or even argue that a placement at Fouts was appropriate. In fact, defense counsel urged the court to place him at Challenge, not Fouts. Counsel did mention Fouts and the minor’s diabetes, but only in support of the argument that the court should place him at Challenge.
Second, even if not waived, we have found no authority to support the minor’s novel contention that an ADA claim may be raised in the context of a section 602 dispositional hearing, and that an otherwise valid dispositional order can be reversed on the ground that it violated the ADA. Although no published decision has considered such a proposition with respect to a DJJ commitment order, one court has rejected a similar attempt to raise an ADA claim in an appeal of an order in a juvenile dependency proceeding. (In re Diamond H. (2000)
In Diamond H. a developmental^ disabled mother contended on appeal that the juvenile court’s decision to deny reunification services pursuant to section 361.5, subdivision (b)(10), violated the ADA. The court held that the ADA claim could not be raised in the context of the juvenile dependency proceedings. It reasoned: “In response to the discrimination faced by disabled individuals, Congress enacted the ADA (42 U.S.C. § 12101 et seq.). Title II of the ADA prohibits excluding qualified individuals from participating in or being excluded from the services, programs or activities of a public entity. Title III provides that no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation. Both provisions apply to state and local public entities. [Citations.] W In enacting the ADA, however, Congress did not intend to change the obligations imposed by unrelated statutes. Although a parent may have a separate cause of action under the ADA based on a public entity’s action or inaction, such a claim is not a basis to attack a state court order. [Citations.] Thus, the ADA does not directly apply to juvenile dependency proceedings and cannot be used as a defense in them. . . . [f] . . . [A]ny challenge a parent has under the ADA for alleged violations must be raised in a separate cause of action in federal court.” (Diamond H., supra,
We find the analysis in Diamond H. to be equally applicable where a minor found to be a person within the meaning of section 602 is attempting to assert an ADA violation as grounds to set aside an otherwise valid dispositional order. In addition to the reasons stated in Diamond H., we observe that achieving the important rehabilitative and treatment goals of the juvenile proceedings would be severely hampered if, whenever the court considers, as it must, a minor’s physical or psychological problems in assessing whether a particular placement would be effective, its decision could trigger an ADA claim that the court would have to allow the parties to litigate before reaching a final disposition. The obvious delays and procedural and substantive problems that would follow from importing what is, in effect, a new and complex civil action into the juvenile proceedings, is not mandated by the ADA, which instead provides a remedy by way of an independent civil action.
The minor’s reliance upon decisions that have applied the ADA to challenge exclusion of certain classes of prisoners from parole or certain prison programs is misplaced because, in each of the cases the minor cites, the plaintiffs raised their ADA claims in a separate civil action.
In Pennsylvania Dept. of Corrections v. Yeskey (1998)
Finally, in Thompson, supra,
B. Due Process
Finally, the minor asserts that it is a violation of due process to commit him to the DJJ solely because he has diabetes and no other less restrictive placement met his medical treatment needs.
Even without resort to principles of due process, it is an abuse of discretion to commit a minor to DJJ solely because of the absence of local less restrictive alternatives. (See, e.g., In re Aline D. (1975)
In any event, we see no analogy between the juvenile court’s decisionmaking process in this case, and the cases the minor cites in which the disposition is based upon improper factors such as the minor’s exercise of his constitutional right to contest charges (see In re Edy D. (2004)
III. CONCLUSION
The dispositional order is affirmed.
Marchiano, P. J., and Graham, J.,
Notes
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The statement of facts is based upon the detention report because the parties stipulated that the report provided a factual basis for the minor’s admissions to the sustained charges, and the court accepted the stipulation.
Defense counsel did not argue that defendant should be placed at Fouts. Instead he argued that Challenge was an appropriate placement. On appeal defendant does not reassert the contention that Challenge was an appropriate alternative to DJJ.
In his opening brief, the minor cites evidence found on a Web site that Fouts did at least have a nurse present on site. This information is not properly before us because it was not presented to the juvenile court, and we may not consider it. (People v. Barnett (1998)
Specifically, counsel argued that the court should consider the dispositions of the other juveniles involved in the attack, so the minor would not “feel he was unfairly treated simply because ... his diabetes excluded him from Fouts or his diabetes got him into DJJ.”
For the first time in his reply brief, the minor also asserts the dispositional order violates section 504 of the Rehabilitation Act, 29 United States Code section 794, and Government Code sections 11135 and 12926. This court will not consider new material raised for the first time in a reply brief because the opposing party is deprived of a meaningful opportunity to respond.
Retired judge of the Marin Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.