Pacific Juvenile Defender Center Roundtable
September 19, 2015
Presenters:
Roger Chan, Executive Director
Jaime Michel, PhD, Clinical Director
East Bay Children’s Law Offices
Oakland, CA
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Multiple studies demonstrate that childhood
maltreatment:
increases the likelihood of juvenile and adult arrest;
 Increases the likelihood of arrest for a violent
offense;
 Increases the likelihood of recidivism.
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Other findings:
Both abuse and neglect show direct link to
delinquency;
 Child maltreatment doesn’t determine delinquency
 Children of color are overrepresented at similar or
greater rates in the crossover youth population;
 Girls are in larger proportion within the crossover
youth population.
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Experiences of Foster Care
Congregate care;
 Disruptions in home life;
 Disruptions in school
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Trauma-informed Approach
Reframe problem behaviors;
 Need for interventions to address traumatic
stress;
 Cautions against re-traumatization;
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Resilience – Protective Factors
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Capacity to overcome adversity
Protective Factors
Developmental Approach
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When is a teenager just being a teenager…
Normative responses in non-normative
environments.
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Understanding behavior through the lens of
trauma.
Youth who experience complex trauma by those
who are meant to protect them derails a child’s
development by causing them to lose trust in
adults. Distrust of adults creates a greater risk of
delinquency.
Imposing only negative or punitive consequences
will likely do little to change the youth’s patterns
of rule breaking and risky behaviors because the
response does not address the impact of traumatic
stress.
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WIC 241.1 applies whenever “it appears that a
minor comes within the description of both
Section 300 and Section 602.”
241.1 protocols are local and developed by the
probation and child welfare departments.
Youth cannot be simultaneously a 300
dependent and 602 ward unless the county has
chose a dual status protocol (“on hold” or “lead
agency”
Joint Assessment report is required.
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“On Hold”: Dependency jurisdiction is
suspended while the child is a ward. When 602
completed and reunification detrimental, joint
assessment re: resuming dependency
jurisdiction.
“Lead Agency”: county protocol identifies
which agency/court will be responsible for
case management, court hearings, and
submitting court reports.

AB 212 added WIC 607.2, allowing the
delinquency court to “vacate the order
terminating jurisdiction over the minor as a
dependent of the court, resume jurisdiction
pursuant to Section 300 based on the prior
petition and terminate [delinquency]
jurisdiction” if the minor was subject to a foster
care placement as a 300 at the time the minor
was declared a 602 ward.
On average, 300’s spend more time in
juvenile hall than a non-300 youth.
If Detained:
48 hours (court days) to file petition
24 hours (court days) after filing for detention
hearing
Jurisdictional Trial:15 court days (detained)
30 calendar days (not detained)
Disposition: (WIC 702)
10 court days (if detained)
30 calendar days “after date of filing of the
petition” (if not detained)
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If a minor is a dependent of the court
pursuant to Section 300, the court’s decision
to detain shall not be based on the minor’s
status as a dependent of the court or the child
welfare services department’s inability to
provide a placement for the minor. WIC
635(b)(2), 636(a)
Likely to flee to avoid the jurisdiction of the
court?
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Protection of the minor?
 636(e) For a minor who is a dependent of the court
pursuant to Section 300, the court’s decision to detain the
minor shall not be based on a finding that continuance in
the minor’s current placement is contrary to the minor’s
welfare. If the court determines that continuance in the
minor’s current placement is contrary to the minor’s
welfare, the court shall order the child welfare services
department to place the minor in another licensed or
approved placement.
635(c)(2) If the court orders release of a minor who is a
dependent of the court pursuant to Section 300, the court
shall order the child welfare services department either to
ensure that the minor’s current foster parent or other
caregiver takes physical custody of the minor or to take
physical custody of the minor and place the minor in a
licensed or approved placement.
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Who can visit?
Is there a JV-220 Authorizing psychotropic
medications? – Does the juvenile hall know
about the child’s medications?
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Is the juvenile hall school trying to change my
client’s IEP?
Juvenile court schools are operated by the county
board of education.
 When a student “transfers” to a new district, the new
district must make a new IEP or adopt the old IEP
within 30 days. (Educ. Code 56325)
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Who holds educational rights?
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Frequent runners
Needs a Level 14 placement: must be
approved by an “interagency placement
committee” after determining that the child is
“SED”
Needs an IEP – group home cannot require an
NPS as a condition of placement, but is also not
required to accept a youth.
Dependency attorneys have certain statutory “best
interest” responsibilities:
 “A primary responsibility of [child’s counsel] shall
be to advocate for the protection, safety, and
physical and emotional well-being of the child”
WIC 317(c)
 Counsel shall not advocate for the return of the
child if, to the best of his or her knowledge, return
of the child conflicts with the protection and safety
of the child.” WIC 317(e)(2)
 CAPTA GAL: Make recommendations to the court
concerning the child’s best interest
Dependency attorneys may also have a role in
obtaining necessary releases of information. WIC 369
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Who can authorize ROI for confidential MH
information? Not the parent if child was
removed. H&S 123116.
Who can authorize ROI for school records?
How much to share?
What does 827 allow? (access vs. use)
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Attorneys for parties actively participating in
juvenile proceedings
Dissemination by receiving agency only to those
persons authorized under 827.
It is the intent of the Legislature to reduce the
frequency of law enforcement involvement and
delinquency petitions arising from incidents at
group homes and other facilities licensed to provide
residential care to dependent children.
Applies to group homes, transitional housing
placement providers, community treatment
facilities, or runaway and homeless youth shelters
Does your county 241.1 protocol require a
manifestation determination?
241.1(b)
notification
(3) (A) These protocols may also require immediate
of the child welfare services
department and the minor’s dependency attorney upon referral of a dependent minor to probation,
procedures for release to, and placement by, the child welfare services department pending resolution
of the determination pursuant to this section, timelines for dependents in secure custody to ensure
timely resolution of the determination pursuant to this section for detained dependents, and
to ensure that dependents are provided with any
option that would otherwise be available to a nondependent minor.
nondiscrimination provisions
(B) If the alleged conduct that appears to bring a dependent minor within the description of Section
601 or 602 occurs in, or under the supervision of, a foster home, group home, or other licensed facility
that provides residential care for minors, the county probation department and the child welfare
services department may consider whether the
alleged conduct was within the
scope of behaviors to be managed or treated by the foster home or facility,
as identified in the minor’s case plan, needs and services plan, placement agreement, facility plan of
operation, or facility emergency intervention plan, in determining which status will serve the best
interests of the minor and the protection of society pursuant to subdivision (a).
Restitution fines are waived for all youth described
by section 241.1 and victim restitution is limited to
out-of-pocket if the victim was a group home or
group home staff and insurance covered the
damages.
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WIC 730.6(g)(2) If the minor is a person described in
subdivision (a) of Section 241.1, the court shall waive
imposition of the restitution fine required by subparagraph
(A) of paragraph (2) of subdivision (a).
WIC 730.6(k): If the direct victim is a group home or other
facility licensed to provide residential care in which the
minor was placed as a dependent or ward of the court, or an
employee thereof, restitution shall be limited to out-ofpocket expenses that are not covered by insurance and that
are paid by the facility or employee.
Citation Hearings
 Pre-Jurisdiction Informal Supervision (WIC
654 and 654.2)
 Competence (WIC 709) – maturity, mental
illness, developmental disability.
 Deferred Entry of Judgment (WIC 790)
 Probation without Wardship (WIC 725(a))

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6-12 months of informal supervision
Petition is suspended and dismissed upon
successful completion
Still liable for victim restitution
Ineligible:
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707(b) serious felonies or any felony if minor is 14 or
over
Drug sales or possession
Gang allegations
Restitution over $1000
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A minor is incompetent to proceed if he or she
lacks sufficient present ability to consult with
counsel and assist in preparing his or her
defense with a reasonable degree of rational
understanding, or lacks a rational as well as
factual understanding of the nature of the
charges or proceedings against him or her.
May be due to mental disorder, developmental
disability, or developmental immaturity.
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Minor must admit all charges.
Violation at discretion of DA, court or PO
Benefit of satisfactory completion is dismissal
and expungement
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Dispositional option
6 months of supervision - Can it be extended?
(Lino B. (2006) 138 Cal.App.4th 1474: minor can
knowingly and willingly accept a probation
period exceeding six months).
Court’s discretion to fashion probation
conditions of a nonward is not limitless. No
“incarceration-like time (e.g. juvenile hall). In
re Walter P. 92009) 170 Cal.App.4th 95; In re
Trevor W. (2001) 88 Cal.App.4th 833
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Curfew
Community Service
Location of probation programs
Home Supervision / Electronic Monitoring /
GPS
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Can a minor be on GPS while on nonwardship 725(a)
probation? (Walter P. (2009) 170 Cal.App.4th 95: 725
and 729.2 serve as a floor, not a ceiling for probation
conditions)
Probation conditions must be “reasonably related to a
proper rehabilitative purpose.”
A condition is not valid if it:
1.
Has no relationship to the crime of which the
offender was convicted;
2.
Relates to conduct which is not in itself criminal;
and
3.
Requires or forbids conduct which is not
reasonably related to future criminality.
(In re Daniel R. (2006) 144 Cal.App.4th 1)
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“Least Restrictive Environment”
Maximum Confinement Time
Wardship Probation
Out of Home Placement, including relatives
and NREFM’s
Camp/Ranch –impact on AB 12 eligibility?
California Division of Juvenile Justice (DJJ)
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Stigma
Financial Benefits
Family Reunification
Placement
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Placement efforts to be reviewed at a court
hearing every 15 calendar days. WIC 737.
Probation must identify a specific placement
for the minor in the case plan submitted with
the disposition report and release the minor at
the 602 disposition hearing, or show reasonable
efforts to find a placement. WIC 727(a)(4);
737(c)(2)
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If a former 300 who was in foster care at the
time the 602 petition was filed, a delay in
placement is not reasonable if the PO does not
identify a specific and available placement in
the case plan AT THE DISPOSITION
HEARING.
PO must provide documentation of reasonable
efforts.
If the delay is unreasonable, the court shall
order assessment of temporary nonsecure
placement or other alternatives to detention, as
well as other sanctions.
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602 wards continue under probation
supervision and placement order after age
18 (Maybe SB 12? – under placement order
at time the 602 petition is filed)
“Transition Jurisdiction” WIC § 450 if
under a placement order on 18th birthday
and rehabilitative goals have been met.
Eligible youth under 17.5 years old may
have 300 jurisdiction resumed, or assume
300 dependency status if at risk (via 329).
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Delinquent youth whose rehabilitative goals have been
met; AND
Are between ages 18-21 AND had a foster care
placement order on the day they attain 18 years old;
OR
Are between 17.5 to 18 AND are not receiving
reunification services; do not have a permanent plan of
adoption or guardianship; and return home is a
substantial risk; AND
Are former dependents who had a foster care
placement order in the dependency court at the time
the delinquency court assumed jurisdiction OR have a
current order for foster care placement in the
delinquency court.
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Joint assessment by responsible agencies
in each county
Report to be prepared and filed in county
where 2nd petition is filed
County with first jurisdiction must receive
notice!
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No due process right to a full evidentiary
hearing on a 241.1 determination. In re Henry
S. (2006) 1409 Cal.App.4th 248
“All parties and their attorneys must have an
opportunity to be heard at the hearing.” CRC
5.512(g)
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The Court may not determine which status is
appropriate without receiving and considering
the 241.1 Assessment.
LA County DCFS v. Superior Court (2001) 87
Cal.App.4th 320
In re Marcus G. (1999) 73 Cal.App.4th 1008
1.
2.
3.
4.
5.
A description of the nature of the referral
The age of the child
The history any physical, sexual or emotional
abuse of the child
The prior record of the child’s parents for abuse
of this or any other child
The prior record of the child for out-of-control
or delinquent behavior
6.
7.
8.
9.
10.
11.
12.
The parents’ cooperation with the child’s school
The child’s functioning at school
The nature of the child’s home environment
The history of involvement of any agencies or
professionals with the child and his or her family
Any services or community agencies that are
available to assist the child and his or her family
A statement by any counsel currently
representing the child
A statement by any CASA volunteer currently
appointed for the child.
(a) Factors relating to the crime
(1)The defendant was a passive participant or played a minor role in the crime;
(2)The victim was an initiator of, willing participant in, or aggressor or provoker of the incident;
(3)The crime was committed because of an unusual circumstance, such as great provocation,
that is unlikely to recur;
(4)The defendant participated in the crime under circumstances of coercion or duress, or the
criminal conduct was partially excusable for some other reason not amounting to a
defense;
(5)The defendant, with no apparent predisposition to do so, was induced by others to participate
in the crime;
(6)The defendant exercised caution to avoid harm to persons or damage to property, or the
amounts of money or property taken were deliberately small, or no harm was done or
threatened against the victim;
(7)The defendant believed that he or she had a claim or right to the property taken, or for other
reasons mistakenly believed that the conduct was legal;
(8)The defendant was motivated by a desire to provide necessities for his or her family or self;
and
(9)The defendant suffered from repeated or continuous physical, sexual, or psychological abuse
inflicted by the victim of the crime, and the victim of the crime, who inflicted the abuse,
was the defendant's spouse, intimate cohabitant, or parent of the defendant's child; and the
abuse does not amount to a defense.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1)The defendant has no prior record, or has an insignificant record
of criminal conduct, considering the recency and frequency of
prior crimes;
(2)The defendant was suffering from a mental or physical condition
that significantly reduced culpability for the crime;
(3)The defendant voluntarily acknowledged wrongdoing before
arrest or at an early stage of the criminal process;
(4)The defendant is ineligible for probation and but for that
ineligibility would have been granted probation;
(5)The defendant made restitution to the victim; and
(6)The defendant's prior performance on probation or parole was
satisfactory.
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“The assessment must be completed as soon as
possible after the child comes to the attention
of either department” CRC 5.512(a)(1)
Determination of status must be made before
any petition is filed whenever possible, but the
report need not be prepared before the petition
is filed. CRC 5.512(a)(2) and (3) [compare to
Marcus G. (1999) 73 Cal.App.4th 1008: joint
recommendation to be submitted “with the
petition that is filed”]
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If detained, the 241.1 hearing must be as soon
as possible after or concurrent with the
detention hearing, but no later than 15 court
days after the order of detention and before the
jurisdictional hearing. CRC 5.512(e)
If not detained, the hearing must occur before
the jurisdictional hearing and within 30 days of
the date of the petition.
In re M.V. (2014) 225 Cal.App.4th 1495: “We note that
at least one commentator has indicated that the
timeframes set forth in Rule 5.512(e) may be contrary to
the best interests of the minor and the protection of
society and therefore void as inconsistent with the
intent of section 241.1. (See Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2013) § 3.27[2],
p. 3–52 … This is because a decision to terminate one status
should not be made until after a determination that the
jurisdictional allegations supporting the alternate status are
true. (Id. at p. 3–51.) As is pertinent to the present matter,
“[s]ince the full nature of the delinquency allegations may
not become clear until after they have been litigated and the
juvenile court may or may not find those allegations true,”
there may be “substantial merit” to deferring the 241.1
determination until after the jurisdiction hearing in the
appropriate case. (Id. at pp. 3–51-3–52.)
“… The assessment of which status would be
appropriate for the minor is to accompany the
petition that creates the potential for dual
jurisdiction. Likewise, the determination of the
appropriate status is to be made by the juvenile
court that is acting on the second petition.”
Marcus G. (1999) 73 Cal.App.4th 1008. See also
LA DCFS v. Superior Court (2001) 87
Cal.App.4th 320
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RFK National Resource Center for Juvenile
Justice: http://www.rfknrcjj.org
Georgetown Center for Juvenile Justice Reform:
http://cjjr.georgetown.edu/
Sierra Health Foundation Positive Youth
Justice Initiative (including Trauma-informed
Care) http://www.sierrahealth.org/pyji
East Bay Children’s Law Offices
Oakland, CA
Roger Chan, Executive Director
(510) 496-5201; roger.chan@ebclo.org
Jaime Michel, PhD, Clinical Director
(510) 746-2405; jaime.michel@ebclo.org