Name:
In
Pro Per,
Address:
Phone:
SUPERIOR COURT FOR THE STATE
OF
Name: , In
Pro Per
Defendant, And SUPERIOR COURT OF Real Party at Interest, |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )))) |
Childrens
Name, Case #, DOB MOTION AND
ORDER TO DISMISS
PURSUANT TO W&I § 352 |
I
The Court has allowed the Dispositional Hearing in
the aforementioned case to extend well passed the allowable time limits.
I, __________________________ the defendant in the
above entitled matter hereby move that the above named court to dismiss the
W&I Section 300 petitions in the matters of JD________, JD______, and
JD______ as so stated in W&I Section 300 “under no circumstances shall a
dispositional hearing take more than six months”
II
THE COURT ERRORED IN
INTERPRETATION OF STATUTE IN
In this motion we conclude the juvenile court may be
compelled to conduct a jurisdiction hearing in dependency proceedings on
consecutive court days until conclusion, absent a showing of exceptional
circumstances justifying a continuance of the hearing. The following case gives
good cause for WIC § 352 requiring a speedy Jurisdictional hearing or to
dismiss the case, Jeff M. v. Superior Court (1997) 56 Cal.App.4th
1238.
As will
become clear, we need not issue the writ in this case. However, because the practice that gave rise
to this case appears to be widespread we will reach the merits of the
proceeding to resolve a compelling legal issue of widespread importance.
The
juvenile court rejected petitioner’s request to conduct the jurisdiction
hearing on a continuous basis. In doing
so, the court stated its belief that it was not compelled to do so by Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, on which petitioner had
relied in making her argument. The court
expressed its belief that, “under all the circumstances that this court
operates under, that we’re pretty reasonable.”
The court also opined that the proposed day-to-day approach was “just an
unrealistic expectation for use and not reasonable.” Acknowledging the rights of minors and
parents to have jurisdiction hearings conducted “as quickly as possible,” the
court stated it would continue to adhere to its approach of conducting
contested proceedings on Thursdays and Fridays.
The
juvenile court continued the jurisdiction hearing until July 29.[1] On that date, the court heard the testimony
of two witnesses. The court continued
the hearing until the next day. On July
30, the court heard the testimony of one witness. At the conclusion of that hearing, petitioner
objected to a proposed continuance until August 26. In response, the court noted petitioner’s
previous objection and cited its scheduled vacation and one planned by counsel
for the father as reasons for the continuance.
We directed
respondent juvenile court to conduct the jurisdiction hearing on a day-to-day
basis, pursuant to Jeff M. v. Superior Court, supra, 56 Cal.App.4th 1238, or to dismiss the section 300
petitions, absent a showing of good cause for any continuance made under
section 352. Alternatively, we ordered
respondent court to show cause why it had not done so and why the relief sought
by petitioner should not be granted. On
September 7, DHHS filed its return to the writ.
On
September 8, 1999, the juvenile court stated its intention to proceed with a
combined jurisdiction and disposition hearing on a continuous basis, beginning
the next day. However, finding good
cause, the court granted motions by counsel for real party and the minors for
another continuance and rescheduled the hearing for September 20 in another
department of the superior court. On
September 23, 1999, respondent court concluded the jurisdiction hearing, ruling
the evidence was insufficient to sustain the petitions. The court then terminated the proceeding.[2]
DISCUSSION
A.
At the
outset we consider a threshold issue of mootness. The underlying dependency proceeding has
concluded and the minors returned to parental custody. Petitioner urges us to proceed to the merits,
citing a “compelling legal issue of widespread importance . . . .”
Petitioner
contends “[t]he issue in this case is whether the [juvenile] court can
systematically deny timely hearings in . . . section 300 cases by intentionally
setting them for dates the trial court’s calendar does not allow for
evidentiary jurisdictional hearings and then without good cause continuing the
case to a Thursday hearing date for the taking of evidence.” Real party, on the other hand, argues the
matter is now moot.
According
to petitioner, this “issue is widespread and urgent because the record shows Sacramento
County only allows trials in section 300 cases on Thursday and Friday, clearly
in violation of the Code and Jeff M.
v. Superior Court . . . .” We agree with petitioner. The record suggests the practice in
respondent juvenile court is to conduct hearings only on Thursdays and Fridays,
with continuances granted on a regular basis that lack a showing of good cause
or exceptional circumstances, as required by law. Such a policy likely will cause delays in
future proceedings that run afoul of statutory requirements. In order to provide guidance to the juvenile
court in future matters, it is appropriate for this court to resolve the issues
raised in this petition notwithstanding the conclusion of the underlying matter. (In re
Jeanette H. (1990) 225 Cal.App.3d 25, 30.)
B.
We turn to
the merits of this proceeding. As
tendered to this court, petitioner asserted the minors are living in three
different foster homes, and did not visit with each other until August 12,
1999. Arguing that at its present pace
the hearing probably will not conclude until sometime in November or December,
petitioner claims “[w]rit relief is essential to avoid this unconscionable
delay in this case and in likely hundreds of other such cases pending in
Sacramento County.”
In its
return to the alternative writ, DHHS argues that Jeff M. v. Superior Court,
supra, is not dispositive of this
proceeding. Noting that the jurisdiction
hearing in that case had been continued for more than a year, DHHS claims the
hearing in this case is “moving forward,” and was “being heard in a timely
manner.” According to DHHS, there is no
authority upon which we may direct the juvenile courts to conduct hearings on a
day-to-day basis, and avers such a requirement would be “very burdensome.”
C.
The juvenile
court has the power to “control all proceedings during the hearings with a view
to the expeditious and effective ascertainment of the jurisdictional facts and
the ascertainment of all information relative to the present condition and
future welfare of the person upon whose behalf the petition is brought.” (§ 350.)
The dependency system seeks to keep to a minimum the amount of potential
detriment to a minor resulting from court delay. (In re
Sean E. (1992) 3 Cal.App.4th 1594, 1597.)
“[D]elay disserves the interests of the minor, the parents, and the
courts, and is clearly inconsistent with the intent of the Legislature.” (In re
Taya C. (1991) 2 Cal.App.4th 1, 8.)
The
emphasis on timely adjudication of dependency proceedings is reflected in various
statutory provisions. For example, where
a minor has been detained and the jurisdiction hearing is pending, that case
“shall be granted precedence on the calendar of the court for the day on which
the case is set for hearing.” (§
345.) The hearing must be set for
detained minors within 15 days from the order of detention. (§ 334; Cal. Rules of Court, rule 1447(d).)
After the
juvenile court finds jurisdiction over the minor, it may continue the
disposition hearing for no more than 10 days in the case of a detained
minor. (§ 358, subd. (a)(1); see also
Cal. Rules of Court, rule 1451(a).)
The
Legislature has recognized the existence of “tension between the timely
resolution of dependency cases and the thoughtful exercise of judicial
discretion.” (In re Sean E., supra, 3
Cal.App.4th at p. 1599.) In some cases
the necessity for some delay may be unavoidable. (Ibid.) However, the discretion of the juvenile court
is limited by the general time constraints governing dependency hearings. (Id.
at p. 1598, fn. 4.)
Section 352
is the primary statute governing continuances in dependency cases. It states:
”(a)
Upon request of counsel for the parent, guardian, minor, or petitioner,
the court may continue any hearing under this chapter beyond the time limit
within which the hearing is otherwise required to be held, provided that no
continuance shall be granted that is contrary to the interest of the
minor. In considering the minor’s
interests, the court shall give substantial weight to a minor’s need for prompt
resolution of his or her custody status, the need to provide children with
stable environments, and the damage to a minor of prolonged temporary
placements.
“Continuances shall be granted only upon
a showing of good cause and only for that period of time shown to be necessary
by the evidence presented at the hearing on the motion for the
continuance. Neither a stipulation
between counsel nor the convenience of the parties is in and of itself a good
cause. Further, neither a pending
criminal prosecution nor family law matter shall be considered in and of itself
as good cause. Whenever any continuance
is granted, the facts proven which require the continuance shall be entered
upon the minutes of the court.
“In order to obtain a motion for a
continuance of the hearing, written notice shall be filed at least two court
days prior to the date set for hearing, together with affidavits or
declarations detailing specific facts showing that a continuance is necessary,
unless the court for good cause entertains an oral motion for continuance.
“(b)
Notwithstanding any other provision of law, if a minor has been removed
from the parents’ or guardians’ custody, no continuance shall be granted that
would result in the dispositional hearing, held pursuant to Section 361, being
completed longer than 60 days after the hearing at which the minor was ordered
removed or detained, unless the court finds that there are exceptional
circumstances requiring such a continuance.
The facts supporting such a continuance shall be entered upon the
minutes of the court. In no event shall
the court grant continuances that would cause the hearing pursuant to Section
361 to be completed more than six months after the hearing pursuant to Section
319.
“(c)
In any case in which the parent, guardian, or minor is represented by
counsel and no objection is made to an order continuing any such hearing beyond
the time limit within which the hearing is otherwise required to be held, the
absence of such an objection shall be deemed a consent to the continuance. The consent does not affect the requirements
of subdivision (a).” (See also Cal.
Rules of Court, rule 1422(a).)
In In re Richard H. (1991) 234 Cal.App.3d
1351, 1361, the jurisdiction hearing was not held until almost nine months
after the minors were detained and the disposition hearing was not held until
nearly a year after detention and more than 50 days after the jurisdiction
hearing. In affirming the judgment, the Court of Appeal held there is no
requirement that the petition be dismissed if the time limits are not
satisfied. (Id. at p. 1362.) The court
concluded the limitations contained in subdivision (b) of section 352 “are not
mandatory in the jurisdictional sense.”
(Ibid.)
Petitioner
relies primarily on Jeff M. v. Superior Court, supra, 56 Cal.App.4th 1238.
The juvenile court had continued the jurisdiction hearing for more than
a year after the filing of the petition.
(Id. at pp. 1240-1241.) The reasons for the numerous continuances
included illnesses of various persons, among them the judge, and the inability
of the court to set the matter on the long cause calendar. (Ibid.)
The Court
of Appeal granted the father’s petition for a writ of mandate, ordering the
juvenile court to conduct the jurisdiction hearing without additional
continuances until the hearing was concluded.
(Id. at pp. 1243-1244.) Citing sections 334 and 352, the court
observed that section 300 petitions should be adjudicated rapidly and
continuances should be difficult to obtain.
(Id. at pp. 1241-1242.)
The court
recognized the difficulties faced by the juvenile court in coping with rising
caseloads and inadequate resources, but also was mindful of the statutory
mandate and the best interests of the participants in the dependency system. The court stated: “We are mindful that juvenile court judges,
while diligent and caring, are overworked and doing their best to juggle
ever-increasing caseloads while suffering grossly inadequate resources. The current judge in this case, alone,
handles a daily calendar of 40 to 50 cases, including 4 or 5 trials designated
as ‘no time waiver’ cases because the minors are detained outside the
home. [¶] While each division of the court is vitally
important to the litigants and to society, there is no division of greater
importance than the juvenile court, which deals with the sensitive parent-child
relationship and the potential of horrendous damage to children. [¶] We
recognize that the court, faced with an ongoing dilemma, may have decided that
two hours per day on this matter was the best way to balance the needs of this
family against the needs of other families.
Here the minor is residing in her mother’s home and has regular, albeit
monitored, visitation with her father, while in other cases the minors are detained
away from one or both parents. Balancing
is laudable under these circumstances, but is contrary to the direct
requirements of the statutory scheme.
[¶] Until the executive branch
and Legislature address this alarming situation and provide essential
resources, we are compelled to issues [sic]
orders such as these, requiring the court to give this case priority until the
within matter is completed.” (Id. at p. 1243.)
The court
ordered the juvenile court to “conduct trial every court day, all day, without further continuances in
the absence of good cause, until trial is concluded . . . .” (Ibid.;
emphasis in original; fn. omitted.)
Section 352
contains a number of limitations on the juvenile court’s power to grant
continuances of dependency proceedings.
First, pursuant to subdivision (a), the court may not grant a
continuance that is contrary to the interests of the minor, which are
delineated in the statute. Moreover, to
obtain a continuance, counsel for a party must show “good cause” exists and the
continuance may be only for the period of time justified by the evidence
proffered in support of the good cause showing.
If the court grants a continuance, it must state in the record the facts
proven in support of the continuance. (In re Sean E., supra, 3 Cal.App.4th at p. 1598, fn. 4.)
Subdivision
(b) of section 352 contains two specific overall restrictions on the exercise
of discretion by a juvenile court to grant continuances. First, unless
the court finds “exceptional circumstances” requiring one, it shall not grant a
continuance that would result in the disposition hearing being completed longer
than 60 days after the detention hearing.
Further, the court may not, under any circumstances, grant continuances
that would cause the disposition hearing to be completed more than six months
after the detention hearing.
In this
case, respondent juvenile court acknowledged the interests of participants in
the dependency system to have jurisdiction hearings adjudicated in a timely
manner. The court even expressed some
reservations about its policy of conducting contested hearings on Thursdays and
Fridays only. To its credit, the court
was not willing to base its scheduling of the hearing solely on the various schedules
of counsel for the other parties.
This matter
is a difficult one, but its resolution is a matter of legislative mandate. Here, the Legislature has directed that,
absent a showing of “exceptional circumstances” justifying a continuance, the
adjudicatory phase of dependency proceedings must be concluded within a narrow
time frame, ordinarily within no more than 60 days of detention. (§ 352, subd. (b).)
In
construing statutory enactments, we look first to the words of the sections to
effectuate the purpose of the law. (Gooch v. Hendrix (1993) 5 Cal.4th 266, 282.)
The wisdom of statutes is a matter for the Legislature, not for the
courts. (Smith v. Anderson (1967)
67 Cal.2d 635, 645.) In dependency
matters such as this one, where the minors are living apart from their parents,
it is particularly important that the validity of allegations justifying a
temporary separation be adjudicated as quickly as possible. If they are not, and eventually the
allegations are determined to lack merit, the relationship between the parents
and the minors may be damaged severely.
If that happens, the prospects for eventual reunification of the family
are bleak.
D.
Here, when the juvenile court continued the combined jurisdiction and disposition hearing from July 30 until August 26 over the objection of petitioner, no possibility existed that the hearing would be completed within 60 days of the June 11 detention hearing. Subdivision (b) of section 352 requires a showing of “exceptional circumstances” and a court finding in the record to justify such a continuance. The minute order of the July 30 hearing is bereft of any such finding.
DHHS does
not attempt to justify the July 30 continuance on the ground that vacation
plans constitute “extraordinary circumstances.”
We think such a possible justification for a continuance would be akin
to court congestion, which the court in Jeff
M. v. Superior Court, supra, rejected as good cause for delay.[3] (Id.
at p. 1243, fn. 4.) Instead, DHHS
suggests that, because the delay in Jeff
M. was of a more extreme nature than the delay in this case, which DHHS
avers is proceeding apace, the rationale of Jeff
M. does not apply here.
It is true
the delay in this case did not appear to be approaching the same order of
magnitude as that found in Jeff M. But the rationale of that case is no less
applicable here. The juvenile court must ensure that the hearing is
adjudicated and concluded, under ordinary circumstances, within 60 days of
detention. That mandate may mean, when
setting a trial date, that the court is obliged to transfer the matter
immediately to another department where, as here, it knew there would be
periods of time when the court or counsel would not be available. It also may mean substitution of counsel
where it is apparent one or more counsel is unavailable.
We agree
with DHHS there is no specific statutory provision requiring dependency
proceedings to be heard on a day-to-day basis.
However, the juvenile court is
required to give calendar preference to such proceedings. (§ 345.)
Moreover, subdivision (b) of section 352 imposes strict maximum time
limits within which the disposition hearing must be completed. Under some compelling circumstances, it may
be an appropriate method, in order to lessen any additional delays for the
court, to conduct a jurisdiction and disposition hearing on a continuous basis
until it is concluded.
Under the
extraordinary circumstances present in this case, we think trial on a
continuous basis was warranted. Although
it has concluded, the matter extended well past the 60-day limit, with no
proper showing made to justify the delays.[4] More fundamentally, this case involved
allegations of an extremely serious nature.
It was apparent from the outset that numerous witnesses would be called
to testify, both by DHHS and by petitioner, consuming many days of
testimony. At one time, petitioner’s
estimate for completion of the adjudicatory phase was November or
December. On this record, that simply
was too long to satisfy statutory requirements.
This case
presents a dramatic example of the vital importance of timeliness in the early
stages of dependency proceedings. The
petitions were filed in early June 1999, and the minors were detained. It was not until late September that the
matter was finally concluded with a finding that the petitions were not
meritorious. Thus, for nearly one-third
of this year, petitioner’s family was split apart and doubtless the
relationships among family members damaged.
DHHS can and must do better.
Defendant hear by moves the court to order to vacate and or to suspend the courts prior order in the above entitled matter.
[1] At various times, the court’s minute orders referred to the hearing as a “jurisdictional/dispositional hearing.” We understand the practice in Sacramento County is to conduct a jurisdiction hearing and then a disposition hearing immediately afterward.
[2] We take judicial notice of the minute order of respondent court reflecting the dismissal of the proceeding. (Evid. Code, §§ 452, subd. (d)(1), 459.)
[3] By its express terms, section 352 bars continuances solely for the convenience of the parties, which presumably would include vacation plans. (§ 352, subd. (a).)
[4] DHHS suggests petitioner’s counsel was responsible for some portion of the delays. The record does not support that claim.