To: Greg Feldman
From: Erin Levine
Date: 1/26/05
Re: W&I 725(a) - extending probation beyond 6 months
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Background
On January 24, 2005, the district attorney submitted a APoints and Authorities in
Opposition to Non-Wardship Probation Pursuant to Welfare & Institutions Code Section
725(a)@ in the matter of Mmm. The document explained that there is a six-month limit on
725(a) probation. The issues you asked me to explore are: (1) whether the statutory
authority and case law presented in the Points and Authorities are accurate; (2) whether it is
possible to extend probation beyond 6 months in order to keep Mmm in the dependancy
system. The pertinent statutes are below which under the plain language of the rules would
seem to authorize the court, in its discretion, to exceed the 6-month limit,.
Welf. & Inst. Section 725(a)
AAfter receiving and considering the evidence on the proper disposition of the case, the
court may enter judgment as follows:
(a) If the court has found that the minor is a person described by Section 601 or 602, by
reason of the commission of an offense other than any of the offenses set forth in Section
654.3, it may, without adjudging the minor a ward of the court, place the minor on
probation, under the supervision of the probation officer, for a period not to exceed six
months. ... If the minor fails to comply with the conditions of probation imposed, the court
may order and adjudge the minor to be a ward of the court.@
California Rules of Court, 1493 (pertaining to W & I 725(a)) also states that the court can
place the child on probation for Ano more than six months, without declaring the child a
ward.@
Thus, the relevant statutory provisions authorize 725(a) probation for a period not to
exceed six months.
Relevant Case Law
Unfortunately, case law on this issue favors opposing counsel. Case law stated in the
D.A.=s APoints and Authorities in Opposition to Non-Wardship Probation@ is accurate.
Additional cases state that the court has no jurisdiction to extend probation beyond the
statutory maximum.
In re Trevor W.
Assuming juvenile court had statutory authority to impose juvenile hall time as condition
of probation upon juvenile adjudicated delinquent without being made a ward of the court,
order imposing 210 days juvenile hall time exceeded scope of such authority, as statute
authorized maximum probation period of six months.
Three Arguments for non-wardship probation under Welf. & Inst. 725(a)
I have tried to come up with some arguments that will assist you in keeping Mmmout of the
delinquency system. I recognize they are a Astretch@ so I don=t know how helpful it will
be in getting around 725(a) language. I will continue researching this issue so as to make
sure I am not missing something substantial.
1. Argument that juvenile can waive the statutory maximum period of probation.
California Civil Code section 3513 provides
Any one may waive the advantage of a law intended solely for his benefit. But a law
established for a public reason cannot be contravened by a private agreement.
A law is "established for a public reason" only if it is enacted for the protection of the
public generally--that is, if its tendency is to promote the welfare of the general public,
rather than that of a small percentage of citizens.
I am wondering if it could be argued that the six month statutory limit for 725(a) probation
is intended to benefit the juvenile (not the public) in that it assures the child that s/he will
only be on probation for a short period of time. Thus, could it be possible to waive the
six-month time limit and agree that if, after six months, client still needs supervision, then
more probation time will be stipulated to?
2. Argument that the legislature intends to allow dual status and because protocol is not in
place yet for Welf. & Inst. 241(e), the best option for the minor is 725(a) probation.
W&I 241(e) was effective as of January 1, 2005. The statute states that the Juvenile court
may order a child simultaneously a dependant child and ward of the court in certain
circumstances when the probation department and the child welfare services departments
create a joint assessment/ recommendation. It was the obvious intent of the legislature to
give more flexibility and resources to the juvenile court in order to address the needs of the
youths in question. Unfortunately, the protocol to carry out this legislation has not been
put in place as of this time.
Because this option is unavailable at this time, the best way to handle this child is to grant
him 725(a) status. Adjudging him a ward of the court would risk a denial of the services
that are essential to his well-being and the safety of the community. (Probation officer (per
1/24/05 report) recommends continued DHS involvement and psychologist Larry
Wornian, PhD also believes appropriate services are crucial and must be made available).
3. Argument that court has power to modify or vacate disposition order during
probationary period.
I am not sure if Welf. & Inst. Section 775 is applicable. Moreover, I wasn=t able to find any
cases where the court used section 775 to extend a 725(a) probation beyond six months.
But my thought is that it could be argued that 725(a) status could be given, and if the 241(e)
protocols are practically put in place during the next six months, the court could vacate the
order and instead, order dual status.
Welf. & Inst. Section 775 states:
An order made by the court in the case of any person subject to its jurisdiction may at any
time be changed, modified, or set aside, as the judge deems meet and proper, subject to
such procedural requirements as are imposed by this article.
In re W.R.W. (Interp W&I '775):
In juvenile matters the court may at any time modify or vacate a dispositional order and
may entirely terminate its jurisdiction when it is satisfied that further supervision is
unnecessary.
End.