Affidavit of Prejudice/ Preemptory challenges* in Dependency Court
Johnny W. v. Superior Ct., 9 Cal. App. 5th 559, 562, 215 Cal. Rptr. 3d 372, 374 (2017)
The department filed a Welfare and Institutions Code § 300 petition alleging that the child was at risk or suffered from abuse or neglect. The next day, the trial court held an initial detention hearing. The father appeared and asked for a continuance to set the matter for contest. The trial court set the hearing for one day out. Counsel agreed to return but stated on the record that “I will not be able, by that time, to hire a social worker, [or] go out and take photographs to represent my case.”
The court opined “that's always the situation when you want a full-blown contested hearing.” It suggested “it might be wiser to set it on a no time waiver basis,” and if counsel needed time to investigate, to then set the matter for a contested jurisdictional/dispositional hearing”.
The court then found there was a substantial danger to the minor's physical and emotional well-being and there were no reasonable means to keep the minor at home with the father and thus made an order removing the minor from Father's custody. Father's filed a declaration and disqualification motion under CCP § 170.6, a peremptory challenge. Father is entitled to only one challenge.
The trial court denied father’s motion citing that it had “made substantive rulings on the detention yesterday”. The court opined that it had made its temporary detention findings which are the same as substantive findings.
Father filed a timely petition to file a writ of mandate. Father contends the trial court erred in ruling that his disqualification motion was untimely. He contends that he filed the motion within the statutory time limits and that the trial court's findings at the initial detention were not substantive findings and thus rendered the court’s argument that based on substantive rulings inapplicable. The appellate court agreed with father and reversed and remanded.
The court of appeal offered its reasoning below:
First and foremost, a motion for disqualification of a judge requires that the movant allege prejudice on the part of the bench officer. However, this allegation is liberally construed in that the court should presume that counsel made this motion in good faith and that an offer of proof evidencing prejudice is not mandatory.
*Motions to disqualify made pursuant to CCP § 170.6 are usually referred to as ‘peremptory challenges. However, they differ from a true peremptory challenge. The court of appeal did not clarify on this statement.
A peremptory challenge under CCP §170.6 is not the same as a motion to disqualify a judge by a party or an attorney, i.e., a challenge for cause (such as personal knowledge or conflict of interest) codified under CCP §170.1.
Under CCP § 170.6, subdivision (a)(2) any party may challenge the assigned bench officer or judge if they believe that the judge is incapable of holding fair and impartial trial or hearing. This section applies to juvenile court cases and LPS Conservatorship. This case deals with dependency only. A party may raise this motion if they raise it in the time limits and in proper form. If they make proper showing, then the bench officer can be immediate disqualified and a new appointment is mandatory. Counsel's declaration in support of the motion closely followed the language of the statute and was thus in proper form.
The father met the other prong, the motion's timeliness. In determining timeliness, the party must show that their case meets one of the three exceptions to the general rule, the ‘10–day/5–day’ rule, the ‘master calendar’ rule, and the “all purpose assignment” rule. Father contends this case falls within the all purpose rule as the posting around the juvenile court rooms state that they are all purpose courtrooms. Additionally, appellant’s motion was timely under the statute's deadlines.
The initial petition in this case was filed on February 7. The first hearing of any kind was held on February 8. Father filed his disqualification motion the very next day, on February 9. A section 170.6 challenge brought a mere two days after the filing of the initial dependency petition is clearly within the statutory deadlines.
However, father noted the other issue that arises even if timeliness had been met; timely peremptory challenge must be denied if the judge had presided at an earlier hearing that resulted in a determination of contested factual issues relating to the merits of the case. Father turns to the orders made on record at the temporary detention hearing in asserting this point. During the detention hearing, the father asserts that the trial court had not called any witnesses and that no evidence other than the social worker’s report were presented. Based on the petition and the report, the court had based its “prima facie showing” and ordered a temporary finding. Father reasoned that the trial court’s written order stating the finding was “temporary ... pending further determination at a continued hearing,” and the simple fact that the matter was continued until February 9 for “Further Detention” is sufficient proof that the hearing did not entail substantive findings. Additionally, given that the trial court set the matter for further proceedings after counsel’s request for continuance further demonstrated that the hearing in question was not final as the trial court would reevaluate the findings at the time of the continued detention hearing. Father also asserts that the burden of proof was very low in that:
“[t]he words “prima facie” mean literally, “at first view,” and a prima facie case is one which is received or continues until the contrary is shown and can be overthrown only by rebutting evidence adduced on the other side”.
The appellate court reasoning that all of these factors demonstrated that father had met all of the necessary criteria under CCP § 170.6 and granted the father’s petition for mandamus.
This case does not fully indicate whether the appellate court ruled in father’s favour in regards to the nature of a normal detention hearing. This appellate court addressed the special circumstances of a continued hearing; however, this court did not address what would transpire under a normal detention hearing. Even after a normal detention hearing, there could technically be a 170.6 motion filed as counsel could cite that a normal detention hearing is a temporary hearing and the next hearing with a substantive ruling would be the jurisdiction/disposition hearing. However, many bench officers may rule that a one-day continuance for a detention hearing is a limited circumstantial situation as there was a one day continuance and it is only temporary detention findings which to many bench officers are the only kind of hearing where temporary findings are made.
Counsel should meet with other counsel or ask a firm director about how their court works but counsel can definitely make a case that normal detention hearings can support a filing 170.6 motion. However, counsel should be ready with notes about the statute and which of the prongs they meet, and the facts of the case supporting their 170.6 motion as many bench officers will reject the motion and ask for deference to legal authority. They may argue that the court already did detention hearing and made its findings, and counsel should have on hand the statue and how the Welf & I C supports that detention hearings are only temporary hearings with no substantive findings on the merits.
9 Cal.App.5th 559
Court of Appeal, First District, Division 1, California.
JOHNNY W., Petitioner, v. The SUPERIOR COURT of San Francisco City and County, Respondent; E.R., et al., Real Parties in Interest. A150579
Synopsis Background: County child welfare agency filed dependency petition. The Superior Court, City and County of San Francisco, San Francisco City and County, No. JD17–3035, Susan M. Breall, J., ordered the child temporarily detained under the care and custody of the agency, approved the child's placement with his mother, and denied father's motion for disqualification of the judge. Father petitioned for writ of mandate.
Holdings: The Court of Appeal held that: 1 temporary detention order did not involve a determination of contested factual issues precluding disqualification of the judge, and 2 juvenile court's findings in support of detention during one-day continuance did not involve a determination of contested factual issues precluding disqualification of the judge.
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