In re Jerome D.

1
Filed 6/9/11 In re Jerome D. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
In re JEROME D., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME D.,
Defendant and Appellant.
C065223
(Super. Ct. No.
JV128685)
Minor Jerome D.1 appeals from an April 2010 order of the
juvenile court after a contested dispositional hearing. The
1 We do not use an initial for the given name of the minor in
the caption. It impairs readability and leads to confusion for
legal research and record-keeping, and his name is among the
1000 most popular birth names during the last nine years. (In
re Jennifer O. (2010) 184 Cal.App.4th 539, 541, fn. 1; Keith R.
v. Superior Court (2009) 174 Cal.App.4th 1047, 1051, fn. 2; In
re Branden O. (2009) 174 Cal.App.4th 637, 639, fn. 2; In re
Edward S. (2009) 173 Cal.App.4th 387, 392, fn. 1; Cal. Rules of
Court, rule 8.401(a)(2).) Moreover, the minor is known by his
middle name.

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minor argues that the juvenile court failed to comply with the
inquiry and notice requirements of the Indian Child Welfare Act
(25 U.S.C. § 1901 et seq. [ICWA]), failed to determine whether
he had any special educational needs, and failed to calculate
his custody credits properly. (The minor originally had also
argued there was an abuse of discretion in committing him to an
Iowa facility rather than the home of a relative in Ohio. In
accordance with his subsequent request, we will disregard this
claim.) We shall conditionally reverse the order and remand for
compliance with the ICWA.
We omit the jurisdictional facts relating to the minor‟s
offenses and violations of probation, because they are not
relevant to the arguments on appeal. We will incorporate the
facts pertinent to each of the minor‟s claims in the Discussion.
PROCEDURAL BACKGROUND
In November 2008, Jerome D. admitted allegations that he
came within the jurisdiction of the juvenile court because he
had committed attempted robbery. (Welf. & Inst. Code, § 602
[undesignated section references will be to this code].) The
court granted probation, and imposed but stayed a commitment to
the Thornton Youth Center (vacating the commitment in March 2009
on the minor‟s completion of community service).
The People filed a subsequent petition later in March 2009,
based on the minor‟s commission of a robbery (for which he was
being held in custody in Juvenile Hall). The juvenile court
sustained the petition and ordered the minor‟s commitment to the
Thornton Youth Center. The minor completed the residential

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portion of the commitment in June 2009 (upon the program‟s
closing), and returned to his mother‟s custody under the
supervision of the probation department.
In October 2009, the minor admitted an allegation that he
violated probation when he resisted arrest in July 2009 for
fighting in public (which resulted in a brief placement in
Juvenile Hall). The court ordered the minor‟s commitment to the
Sacramento Boys Ranch. Initially, it stayed execution of the
commitment and released the minor on home supervision. The
minor‟s mother reported that he was leaving the house without
her permission, and the probation department moved to modify his
custody status (holding him in Juvenile Hall pending the court‟s
modification). The juvenile court committed the minor to the
Boys Ranch.
The People filed a subsequent petition in November 2009 in
which they alleged violations of probation (for which the minor
was being held in Juvenile Hall). The minor admitted having
been suspended from school for misconduct, and the juvenile
court dismissed the other allegations. Following the contested
dispositional hearing in April 2010, the juvenile court ordered
the minor‟s commitment to a placement in an Iowa facility for a
maximum period of five years and eight months; it denied the
minor‟s motion for reconsideration.
DISCUSSION
I
A
On the initial detention of the minor in November 2008, the

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intake report described his ethnicity as Black, but the mother
stated that “there is Cherokee Indian/Native American Heritage
on both the maternal and paternal side of the family. However,
the family is not registered with the tribe.” In accordance
with the then-prevailing practice of the juvenile court, the
report asserted that “Although the minor may have Indian/Native
American Heritage, termination of parental rights is not likely
the case plan. Therefore, the [ICWA] does not apply . . . .”
The juvenile court adopted a proposed finding to this effect in
ordering the minor‟s detention. The probation officer‟s social
study reiterated a similar proposed finding, which the juvenile
court‟s November 2008 order also adopted.
In connection with the subsequent petition in March 2009,
the intake report simply cited the November 2009 finding, and
the juvenile court again adopted the report‟s proposed finding
of the ICWA‟s inapplicability in its detention order. However,
the social study subsequently included a proposed finding
asserting—incorrectly—that the prior order in November 2008 had
determined that the ICWA did not apply because “the minor was
not of Native American Heritage or Ancestry.” The juvenile
court‟s April 2009 order adopted this erroneous proposed
finding.
The intake report for the July 2009 probation violation
then cited the April 2009 order (as did the social study), which
resulted in an October 2009 dispositional order perpetuating the
error. The reports and findings for the November 2009 petition
simply asserted the minor‟s lack of Indian ancestry without

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additional elaboration (other than a single reference to the
erroneous finding to this effect in the October 2009 order), and
the family assessment case plan (§§ 706.5, 706.6) described his
ethnicity only as “Black or African American.”
B
The minor correctly maintains that once the disposition of
the present matter considered placing him in an Iowa facility,
this put him at risk of entering into the equivalent of foster
care2, which triggered the requirement under state law of
complying with the procedural provisions in the ICWA for
investigating whether he is or may be an Indian child and for
providing notice to any implicated tribes, even though the case
plan does not include termination of parental rights. (R. R. v.
Superior Court (2009) 180 Cal.App.4th 185, 193-194 (R. R.);
§§ 224.2, 224.3; Cal. Rules of Court, rules 5.480-5.484.)3 The
duties of inquiry and notice are ongoing throughout the course
of the delinquency proceedings. (R. R., supra, 180 Cal.App.4th
at p. 199.) Because notice under the ICWA protects interests of
absent tribes, the issue is cognizable in the first instance on
2 The People concede in supplementary briefing that the record
reflects the status of the Iowa placement - an out-of-state
group home - as an equivalent of foster care meeting the
requirements of Family Code section 7911.1. (§ 727.4, subd.
(d)(1); 11402, subd. (g)(6).)
3 We note the Supreme Court has granted review of a decision
disagreeing with R.R. (In re W.B. (2010) 182 Cal.App.4th 126,
rev. granted May 12, 2010, S181638), which had concluded state
law cannot expand the reach of the ICWA to delinquency cases.

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appeal, as here. (In re Z.N. (2009) 181 Cal.App.4th 282, 296-
297.)
Here, the juvenile court initially operated under the same
mistaken policy that we rejected in our R.R. decision: namely,
that the ICWA does not apply in delinquency proceedings unless a
termination of parental rights is under consideration. (R. R.,
supra, 180 Cal.App.4th at pp. 194-196.) Therefore, despite
receiving specific information sufficient to give it reason to
believe the minor was an Indian child, triggering the duty under
state law to apply the ICWA (In re Jose C. (2007) 155
Cal.App.4th 844, 846, 848), the juvenile court did not act on
the information. This error was compounded when the March 2009
social study incorrectly described the November 2008 order of
the juvenile court as finding ICWA did not apply because the
minor did not have Indian ancestry, an error perpetuated
thereafter from order to report to order to report. As a
result, even after we issued R.R. the juvenile court was unaware
of its ongoing ICWA duties when the equivalent of foster care
became the disposition under consideration in connection with
the November 2009 petition.
The People assert that we should infer that the allegations
of the minor‟s Indian heritage were in fact investigated and
found untrue. However, unlike In re S.B. (2005) 130 Cal.App.4th
1148, 1160-1161, and In re Aaliyah G. (2003) 109 Cal.App.4th
939, 941-942 (assuming the validity of these holdings), the
reports in the present case did not include any designation that
would reflect an investigation dehors the record; rather, the

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reports at the outset indicated indifference to the possibility
of Indian heritage (because of the mistaken belief that the ICWA
was nevertheless inapplicable), and then a perpetuated error
that the juvenile court had made an express ruling of the lack
of Indian heritage (which it had not).
The People also assert the mention of Indian heritage was
too vague and speculative. (In re Jerimiah G. (2009) 172
Cal.App.4th 1514, 1516; In re O.K. (2003) 106 Cal.App.4th 152,
157.) However, the information here was more specific than in
those or other similar cases, and did not on its face indicate
the minor‟s parents would be excluded from tribal consideration
for membership. (In re Damian C. (2009) 178 Cal.App.4th 192,
199; In re Alice M. (2008) 161 Cal.App.4th 1189, 1200; In re
Antoinette S. (2002) 104 Cal.App.4th 1401, 1406-1407.)
Therefore, we must conditionally reverse the order and
remand to investigate whether the minor is in fact an Indian
child and provide notice to any affected tribe. If, however,
the juvenile court ultimately determines the case is not subject
to the substantive provisions of the ICWA, it may reinstate its
order. As the application of the ICWA‟s substantive provisions
is highly speculative at this point, we will address the minor‟s
other challenges to the juvenile court‟s order in the event it
is reinstated.
II
A
The various reports and social studies in the proceedings
leading up to the November 2009 subsequent petition noted that

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the minor had a diagnosis of attention-deficit hyperactivity
disorder (ADHD), for which he took medication. However, he did
not have a diagnosed learning disorder, was not the subject of
an individualized education plan (IEP),4 and did not qualify for
one. On this basis, the juvenile court determined in its
October 2009 order that the minor did not have exceptional
needs.
In its December 2009 update for the present petition, the
probation department included a proposed finding to the same
effect. Its family assessment/case plan reiterated that the
minor was neither the subject of an IEP nor had any educational
needs, but identified his ADHD as a “mental health educational”
need.
The minor‟s counsel had solicited a psychiatric evaluation
of him. The minor had been taking various medications for ADHD
since at least third grade. After continued conflict with his
teachers and peers in eighth grade, the minor was in an
independent-study program. The doctor observed that the minor‟s
behavioral problems at Boys Ranch had improved once he obtained
access to his medications. Although the doctor acknowledged
that “there was no evidence [of] cognitive impairments or
learning disabilities,” he nonetheless recommended the minor
4 An IEP is a written statement of a minor‟s present level of
educational performance, which documents the degree to which any
disability affects performance in regular educational programs,
and includes goals, benchmarks, and necessary services. (In re
Angela M. (2003) 111 Cal.App.4th 1392, 1397, fn. 2 [paraphrasing
20 U.S.C. § 1414(d)(1)(A)] (Angela M.).)

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“should be evaluated for an IEP” to accommodate a “serious
emotional disability.” He also believed an aggressive approach
to the minor‟s medication would improve any behavioral problems.
In a second supplement, the probation department reiterated
its proposed finding on the lack of any exceptional needs, and
the retention by the mother of the right to make educational
decisions. The juvenile court‟s present order incorporated the
recommendations.
B
The minor states, without any evidentiary or legal support,
the proposition that “Youth [who] suffer[] from ADHD generally
have special education[al] needs, and the failure to have such
needs provided for often leads to serious consequences.” He
claims the juvenile court failed to assess or determine his
educational needs despite the recommendation in his evaluation
(asserting in passing that the juvenile court “prevented” the
doctor from testifying) and we should remand for the purpose of
ordering an IEP. He contends this violated the juvenile court‟s
duty under Angela M., supra, and asserts his failure to raise a
contemporaneous objection to this purported dereliction should
not forfeit the issue.
If minor‟s counsel had any basis for believing the minor
had any exceptional needs that would benefit from an evaluation
for an IEP, it was incumbent upon her to object at the time the
juvenile court announced its intention to adopt the finding to
the contrary. We presume she had reasons to the contrary to
consider this unnecessary (foremost among which would have been

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her concurrence in the probation department‟s assertion that the
minor did not qualify for one, or the opinion in the psychiatric
evaluation that his behavioral problems could be controlled with
an aggressive pharmaceutical approach). The issue thus is
forfeited on appeal. In any event, the claim fails on the
merits.
In the first place, the court did not “prevent” the doctor
from testifying. At the dispositional hearing, the minor‟s
counsel stated that she did not intend to call the doctor as a
witness unless either the juvenile court or the People wanted to
cross-examine him about the evaluation. Both demurred to the
offer, the court stating, “I think his report is quite clear.”
Angela M., supra, explained that under various state and
federal provisions, a minor has “exceptional” educational needs
if an IEP has determined that the minor has an impairment of
sufficient degree to require special education that modification
of a regular school program cannot provide. (111 Cal.App.4th at
pp. 1397-1398.) At the time of the decision, a court rule
provided that in declaring a child its ward the juvenile court
“„must consider the educational needs of the child,‟” which
Angela M. construed as imposing a mandatory duty to “consider or
determine whether [a minor has] special educational needs.”5
5 Angela M. also cited a section of the Standards of Judicial
Administration (presently numbered without change as section
5.40(h)) directing juvenile courts to “[t]ake responsibility
. . . at every stage of the child‟s case, to ensure that the
child‟s educational needs are met . . . .” (See 111 Cal.App.4th
at p. 1398, fn. 5.)

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(Id. at p. 1398 [emphasis added].) Even though there were facts
that would indicate the existence of special educational needs,
Angela M. did not believe the court gave this any consideration
because it “did not mention this issue when committing her to
the CYA.” (Id. at p. 1399.)
Angela M. is thus doubly distinguishable. The present
renumbered version of the rule does not include a direction to
consider education needs when finding a minor to be a ward of
the juvenile court, other than to “consider whether it is
necessary to limit the right of the parent . . . to make
educational decisions for the child.” (Cal. Rules of Court,
rule 5.590(f)(5).) (The juvenile court‟s order, as noted, does
include a finding that it was unnecessary to limit the mother‟s
educational rights.) Thus, an Angela M. duty does not exist any
longer. Moreover, the juvenile court‟s order in fact includes
an express provision that the minor did not have any exceptional
needs. Therefore, the order both considered and determined the
issue (unlike the Angela M. court).
As a result, the minor could properly argue only that the
present finding lacks substantial evidence (a claim he does not
make), which would fail in the face of the probation
department‟s reports and the concessions in the evaluation that
the minor did not have any learning disability or impairment
beyond the ADHD that his medication seemed to be remediating.
We therefore reject this argument.
III
As noted, the minor originally argued that the juvenile

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court had abused its discretion in committing him to the Iowa
facility, asserting the court had improperly refused to receive
evidence in support of a placement with his great-uncle in Ohio.
He has asked permission to abandon the argument, which we have
granted.
IV
In its January 2010 supplemental memorandum to the court,
the probation department included the latest calculation of the
minor‟s custody credits throughout these proceedings. It showed
two days in Juvenile Hall attributable to the original November
2008 petition, 38 days in Juvenile Hall and 62 days in the Youth
Center attributable to the March 2009 supplemental petition, two
days in Juvenile Hall attributable to the July 2009 violation of
probation (along with three days in Juvenile Hall on the motion
to modify his custody status from home supervision to Boys
Ranch, and 31 days at Boys Ranch), and ongoing custody at
Juvenile Hall attributable to the November 2009 violation of
probation that began on November 23, 2009. The memorandum
calculated the latter as 59 days, apparently as of a scheduled
hearing date of January 21, 2010 (although that appears to be
one day short and may reflect use of the November 24 date of the
petition rather than the start of custody).
In the midst of her argument in favor of a commitment to
the home of the great-uncle at the hearing on April 8, 2010, the
minor‟s counsel asserted that the minor had spent a total of 452
days in ordinary forms of confinement (which included both home
supervision and electronic monitoring), and these traditional

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approaches were “just not working.”
After the court made its oral ruling, the “presenter”
brought the court‟s attention to custody credits, stating the
minor had accrued 135 days attributable to the November 2009
petition (although that total appears to be two days short).
The minor‟s counsel stated that her calculation was 144 days;
she began to calculate the prior Boys Ranch custody when the
presenter interrupted to remind her that the minor had already
been credited for those. The minor‟s counsel then acceded to
the calculation of 135 days. The court‟s order reflects this
figure.
Comparing apples and pomegranates, the minor cites these
three different places in the record and asserts we must remand
to reconcile the inconsistencies. To the contrary, the January
2010 preliminary calculation of the minor‟s latest custody was
59 days apparently as of January 21, with 197 days in total; the
presenter calculated 135 days for only the latest custody as of
the hearing on April 8. The amount of custody to which the
minor‟s counsel rhetorically attested, on the other hand, was a
total amount that included other commitments not qualifying for
custody credits that were cited only to make the point that the
minor needed a different type of commitment.
Consequently, a discrepancy warranting remand does not
exist. We will, however, direct the juvenile court to correct
its April 2010 order (in the event of its reinstatement) to
reflect that the minor was entitled to two additional days of
custody credit attributable to the November 2009 petition as of

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April 8, 2010 (in addition to any custody credit he accrued
subsequently).
DISPOSITION
The dispositional order of the juvenile court is reversed
and the matter remanded with directions to investigate whether
the ICWA applies to the minor. If the ICWA applies, the court
shall give the required notices. If after notice a tribe claims
an interest in the minor as an Indian child, the juvenile court
shall proceed in conformity with the substantive provisions of
the ICWA. If the juvenile court determines that ICWA does not
apply, or it does not receive a response from any tribe claiming
the minor as an Indian child, the court may reinstate its April
2010 order, corrected to include two additional days of custody
credit as of April 8, 2010.
BLEASE , Acting P. J.
We concur:
ROBIE , J.
MAURO , J.

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