Metropolitan News-Enterprise


Monday, June 15, 2009


Page 1


C.A.: Sending Diabetic to CYA Not Violation of ADA


By a MetNews Staff Writer


A Solano Superior Court judge did not violate the Americans With Disabilities Act by sending a young diabetic who committed an assault to a secured facility, in part because the judge said he would receive better medical treatment there than in a less restrictive environment, the First District Court of Appeal ruled Friday.

Div. One affirmed Judge Robert Fracchia’s order committing the youth, identified only as M.S., to the Division of Juvenile Justice, formerly the California Youth Authority.

The judge found that the youth was part of a group of 12 to 15 males who attacked 20 to 25 children at an elementary school where they were playing hide and seek in June of last year. The attackers, including M.S., were apparently members of the Norteno gang and were angry because the children told them to go away when they tried to sell them drugs.

M.S. and others were arrested after the attacks at a nearby house. A large amount of marijuana was found inside the house and a knife that may have been used during the attacks was found in the front yard.

Prior Petitions

M.S. was the subject of two previously sustained juvenile petitions, for battery, threatening a teacher, and carrying a dirk or dagger for the benefit of a gang. Dispositional studies in those cases suggested that he was performing poorly in school, partially because of diabetes, and that he was depressed and used marijuana.

His father said the child had done well before he was diagnosed with diabetes at age 11—he was 14 at the time of his first juvenile court case, in 2007—and had rebuffed the family’s efforts to get him to take insulin and accept counseling.

The day before the schoolyard incident, he admitted probation violations, including failing to attend school, testing positive for alcohol and marijuana, violating curfew, failing to appear for a probation appointment, and failing to report to weekend detention previously ordered by the judge.

The dispositional report for the violations included the conclusion that he was dangerous and required long-term treatment in a secured facility.

After reviewing possible alternatives, Fracchia concluded that all of them were inadequate either because they could not meet the minor’s medical needs, would not provide appropriate counseling, or were insufficiently secure.

“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 judge said, emphasizing that the minor’s progress would be monitored and the court could change the placement in the future.

That decision was not an ADA violation, Justice Sandra Margulies concluded for the Court of Appeal.

Prior Case

The claim that the ADA limits the juvenile court’s options in disposing of cases is “novel” and not well-taken, the justice said. There is no prior authority on the issue in the context of a delinquency case, she explained, and the only dependency case to consider a similar argument—a challenge to a denial of reunification services—rejected it.

“[W]e 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 justice wrote. “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.”

Margulies went on to say that the judge did not abuse his discretion or deprive the child of due process by sending him to the DJJ.

“It was entirely fair, and consistent with the rehabilitative goals of juvenile law, for the court to consider which placement would better meet the minor’s medical needs,” the justice said.

The case is In re M.S., 09 S.O.S. 3599.


Copyright 2009, Metropolitan News Company