IN RE: OWEN E.

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Court of Appeal, Second District, Division 2, California.

IN RE: OWEN E., a person coming under the juvenile court law. Pearl S. WEST, as Director etc., Defendant and Appellant. v. OWEN E., Petitioner and Respondent,

Cr. 30321.

Decided: August 18, 1977

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Beverly K. Falk, Alexander W. Kirkpatrick, Deputy Attys. Gen., for respondent and appellant. Christopher M. Gilman and Olsen & Sorrentino, Los Angeles, for petitioner and respondent.

On March 11, 1975, Owen G. E., a 17-year old, was declared to be a ward of the juvenile court pursuant to Welfare and Institutions Code section 602, based upon a finding that Owen had committed second degree murder in the killing of his father. He was committed to the California Youth Authority.

On October 28, 1976, Owen's mother filed a petition on his behalf pursuant to section 778 of the Welfare and Institutions Code1 seeking to have the court vacate its previous order committing Owen to the California Youth Authority. The petition alleged a change of circumstances in that Owen had made the maximum progress possible under the supervision of the Youth Authority and that restrictions and limitations of the Youth Authority were hampering the furtherance of his rehabilitation in respect to his education and future career possibilities.

At the hearing on the petition, the Director of the California Youth Authority (Director) represented by the Attorney General opposed any order removing Owen from custody. Witnesses testified on both sides of the controversy. The testimony, which was in dispute, focused primarily on the issue of whether further institutionalization was in the minor's best interest.

The juvenile court determined that, on the basis of the evidence, Owen's situation had changed and his further rehabilitation would be best served by removing him from the custody of the Youth Authority, placing him in the custody of his mother and directing that he receive out-patient psychiatric care. The commitment to the Youth Authority was ordered vacated.

The Attorney General noticed an appeal of the order of the juvenile court and petitioned this court for a writ of supersedeas to stay the execution of the order. We issued the writ. The appeal is now before us for decision.

The order is appealable as an order made after the final judgment declaring the minor to be a ward of the court. (Welf. & Inst. Code, § 800; In re Timothy N., 48 Cal.App.3d 862, 121 Cal.Rptr. 880. The Director, having custody of the minor, is a party affected by the order and was a party to the proceedings below by virtue of the notice requirements of Welfare and Institutions Code section 779.2 Thus, the Director may maintain this appeal.

We first consider the Director's contention that the order is void for the reason that Welfare and Institutions Code section 778 is not a proper vehicle for vacating a commitment to the Youth Authority. According to the Director, Welfare and Institutions Code section 779 is the exclusive and controlling statute.

A minor who has been declared to be a ward of the juvenile court is subject to the continuing jurisdiction of that court until he attains the age of 21 years (Welf. & Inst. Code, § 607), and the court has the general authority to change, modify, or set aside any order made by it subject to certain limitations to be discussed infra. (Welf. & Inst. Code, § 775.)

Welfare and Institutions Code section 778 (see fn. 1, supra) provides the method by which the minor or a person interested in his welfare may petition a court to exercise the authority and discretion vested in it under section 775. The two sections are to be read together and, as was stated in In re Corey, 230 Cal.App.2d 813, 41 Cal.Rptr. 379, the test of the exercise of discretion generally is analogous to the test used in modifying custody orders generally.

Contrary to the director's contention, Welfare and Institutions Code section 779 does not create a procedure for petitioning the court for vacation of a Youth Authority commitment nor does it contain any express prohibition against such a procedure.

Welfare and Institutions Code section 779 specifically provides that a juvenile court may change, modify, or set aside an order of commitment to the Youth Authority. That section does contain a requirement of notice to the director and purports to limit to some degree the exercise of the court's power. Since section 778 contains specific reference to the notice requirements of section 779 the two sections read together make it clear the Legislature intended that section 778 should enable the minor or an interested person to seek to vacate a commitment to the Youth Authority. The criteria for modification, however, is that to be found in section 779.

Beyond that, however, the legislative intent is not so clear. It appears that the Legislature failed to resolve the conflict which inevitably results from the procedure which permits a juvenile court to commit a ward to the Youth Authority. This conflict apparently has for the first time come to a head in this case.

The concept of the juvenile court law is that the juvenile court, in the case of wardship, assumes the responsibility of providing care and treatment designed to serve the best interest of the ward and society in rehabilitating the ward from the behavior pattern which led to the declaration of wardship. (Welf. & Inst. Code, § 202.)

The juvenile court is vested with broad discretion and is provided with numerous alternatives in the handling of wards (see Welf. & Inst. Code, §§ 726, 727), including, under certain circumstances, commitment to the Youth Authority. (Welf. & Inst. Code, § 731.) As noted, the juvenile court also has broad discretion in modifying its orders including the authority to terminate jurisdiction entirely. (Welf. & Inst. Code, § 725.)

On the other hand, the Legislature in establishing the Youth Authority, has created a semi-autonomous agency charged with the responsibility of providing care and treatment and attempting the rehabilitation of persons committed to its charge including not only youthful offenders committed by adult courts (Welf. & Inst. Code, § 1731.5) but wards committed by juvenile courts.

The Youth Authority has discretion in accepting commitments, the exercise of which is based on its belief that the person to be committed can benefit from the program provided. (Welf. & Inst. Code, §§ 1731.5 and 736.) The Youth Authority has power to direct the place and length of confinement of persons committed to it and may permit such persons to be at liberty, on parole, or revoke such parole once granted. (Welf. & Inst. Code, §§ 1766 and 1767.3.) The Youth Authority can also discharge such persons (Welf. & Inst. Code, § 1765), or under certain circumstances, return a person to the committing court. (Welf. & Inst. Code, § 1737.1.)

Welfare and Institutions Code section 1737, prior to 1975, provided that once a person was committed to the Youth Authority the committing court had no power to suspend execution of the commitment. That statute further provided, however, that it did not limit the power of the juvenile court under sections 775 and 779.

In 1975, Welfare and Institutions Code section 1737 was amended to provide that the committing court could on its own motion recall a commitment to the Youth Authority only within 120 days after commitment. Any recall after that time requires a recommendation of the Director. The amendment deleted the limiting language concerning the powers of the juvenile court under sections 775 and 779.

The amended statute, however, provides that after recall of the commitment the court may resentence the individual and the individual shall receive credit toward his term for any period spent in Youth Authority custody. The reference to ‘sentence’ and ‘term’ supports the conclusion that the section must be read as applying to youthful offenders committed after a conviction in an adult court and not as a limitation on the existing authority of a juvenile court as set forth in Welfare and Institutions Code sections 775 and 779.

Welfare and Institutions Code section 1737 is of interest here only insofar as it points up the rather close analogy between, on the one hand, the relationship of the Youth Authority to a committing court and, on the other hand, the Adult Authority to a sentencing court.

That analogy, however, fails in the situation where the committing court is a juvenile court and therein lies the seed of the present controversy and the unfortunate conflict which we have previously noted.

Section 778 speaks of ‘change of circumstances' and section 779 mandates the court to consider in regard to modification, the effect on the ‘discipline and parole system of the Youth Authority.’ When a juvenile court is petitioned under section 778 to modify or vacate an order of commitment of a person under the jurisdiction of the Youth Authority, any showing of changed circumstances or new evidence, short of establishing the innocence of the ward, necessarily will depend on events and circumstances which developed after commitment and during the period in which the ward was under the close supervision of the Youth Authority. These circumstances are presumptively also within the cognizance of the Youth Authority.

Any hearing conducted under Welfare and Institutions Code sections 778 and 779, such as the one with which we are here concerned will in effect, result in the juvenile court reviewing the same matters that the Youth Authority would consider in deciding whether to parole or discharge a ward.

If the juvenile court decides that in its opinion its own jurisdiction should be terminated, necessarily the ward would be discharged from the Youth Authority because the underlying basis for the commitment would cease to exist.

If on the other hand the juvenile court should decide that the ward should be removed from the custody of the Youth Authority but retained under the court's jurisdiction and confined in some facility not under Youth Authority control, the court in effect, makes a decision which the Youth Authority would also have had authority to make and the decision would similarly be based on the same evidence which would have governed the Youth Authority's decision in that regard. Finally, if the juvenile court removes the ward from Youth Authority jurisdiction and places him on probation, such action is tantamount to the granting of parole, again on the basis of considerations also available to the Youth Authority.

It seems inescapable that when a juvenile court takes any of these actions over the objection of the Youth Authority it substitutes its own judgment for that of the Youth Authority. Obviously such action would adversely impact the discipline and parole system of the Youth Authority. The ward, in such circumstances, is subject to the decision making power of two independent branches of government, on the same subject matter.

Unfortunately, this court cannot await the resolution of this conflict by the Legislature. We must decide now whether the juvenile court's decision to remove its ward from the Youth Authority jurisdiction shall stand or be nullified.

The order before us is one which the juvenile court was empowered to make by the plain language of sections 775, 778 and 779. The minor was subject to the continuing jurisdiction of the juvenile court and he was subject to the jurisdiction of the Youth Authority only because of the court's decision to place him there. When the ward's personal liberty is at issue and until the Legislature speaks with more clarity we are of the opinion that the decision of the juvenile court must be given effect as against the competing claim of what is essentially an administrative agency.

In this decision we achieve, as nearly as possible under the circumstances, a harmonizing of the various statutes and the objective of affording judicial scrutiny over the discretionary acts of an administrative agency without vexatious interference by one coordinate level of government in the affairs of another.

Finally, the Attorney General urges that the trial court's order was not supported by the evidence and that the court failed to properly consider the effect of that order on the Youth Authority and its parole system. We disagree.

The record reflects that the court was well aware of and gave conscientious consideration to the necessity of exercising restraint in intervening in the Youth Authority's sphere of responsibility. However, as we have pointed out, the legislative scheme as it now exists makes that intervention inescapable unless the juvenile court simply defers in all cases to the recommendation of the Director.

As to the evidentiary support for the order, our function is to determine whether the record contains substantial evidence tending to support the order of the lower court. (Bulkley v. Klein, 206 Cal.App.2d 742, 23 Cal.Rptr. 855; Estate of Harvey, 143 Cal.App.2d 368, 299 P.2d 712.) We may not substitute any inferences we may draw from conflicting evidence for those drawn by the trial court. The findings of the juvenile court will not be disturbed where there is substantial evidence to support them. (In re Corrigan, 134 Cal.App.2d 751, 286 P.2d 32; In re Schubert, 153 Cal.App.2d 138, 313 P.2d 968.)

In the case before us there was substantial evidence from which the trial court could find that Owen's rehabilitation had progressed to a point where release from custody would be of benefit to him. There was expert testimony to the effect that closer family association, removal of educational limitations inherent in an institutionalized setting and, in general, an opportunity for unlimited growth unhampered by Youth Authority restraints would be in Owen's best interest and that he would not present a threat to society.

The order is affirmed.

FOOTNOTES

1.  Welfare and Institutions Code section 778 provides:‘Any parent or other person having an interest in a child who is a ward of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstances or new evidence, petition the court in the same action in which the child was found to be a ward of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction.‘If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and shall give prior notice, or cause prior notice to be given, to such persons and by such means as prescribed by Sections 776 and 779, and, in such instances as the means of giving notice is not prescribed by such sections, then by such means as the court prescribes.’

2.  Welfare and Institutions Code section 779 provides in part:‘The court committing a ward to the Youth Authority may thereafter change, modify, or set aside the order of commitment. Ten days' notice of the hearing of the application therefor shall be served by United States mail upon the Director of the Youth Authority. In changing, modifying, or setting aside such order of commitment, the court shall give due consideration to the effect thereof upon the discipline and parole system of the Youth Authority or of the correctional school in which the ward may have been placed by the Youth Authority. Except as in this section provided, nothing in this chapter shall be deemed to interfere with the system of parole and discharge now or hereafter established by law, or by rule of the Youth Authority, for the parole and discharge of wards of the juvenile court committed to the Youth Authority, or with the management of any school, institution, or facility under the jurisdiction of the Youth Authority. Except as in this section provided, nothing in this chapter shall be deemed to interfere with the system of transfer between institutions and facilities under the jurisdiction of the Youth Authority.’

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.