Damian v., In re
| Citation | 197 Cal.App.3d 933,243 Cal.Rptr. 185 |
| Decision Date | 14 January 1988 |
| Docket Number | F008361,Nos. F008225,s. F008225 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re DAMIAN V. et al., Minors (Two Cases). MERCED COUNTY DEPARTMENT OF HUMAN RESOURCES, Petitioner and Respondent, v. MARIA CLARA V., Objector and Appellant. MERCED COUNTY DEPARTMENT OF HUMAN RESOURCES, Petitioner and Respondent, v. ANDREW PENA V., Objector and Appellant. |
On August 26, 1986, a petition to declare minors Damian V. and Andrew V., Jr., free from parental custody and control was filed in Merced County by the Merced County Department of Human Resources pursuant to Civil Code section 232. 1
On November 14, 1986, Temporary Judge Milbourne Gwin granted the petition as to the mother, Maria V., who failed to appear. Andrew V., Sr., the father, appeared and objected to the petition and the matter was set for hearing.
On January 9, 1987, Maria V. filed a timely notice of appeal from the judgment freeing her minor children from her care, custody and control.
On February 2, 1987, the hearing on the petition as to the father, Andrew V., Sr., commenced before Merced County Superior Court Judge George C. Barrett. After receiving testimony the matter was continued until February 9, 1987, at which time additional testimony was produced and the matter was again continued until February 11. On February 11, 1987, the court found the children came within the provisions of section 232, subdivisions (a)(3) and (7); it would be detrimental for the children to be returned to the custody and control of their father, Andrew V., Sr.; and the children were declared free from his custody and control.
FACTS ***
The mother and/or the minor children raise a number of issues and arguments herein which, in their view, mandate reversal of the order terminating parental rights of the mother. Specifically: (1) sufficiency of the evidence in support of the petition; (2) compliance with Penal Code section 2625; (3) effect of lack of stipulation as to a temporary judge presiding at the hearing; (4) failure of the trial court to appoint counsel for minors for hearing on termination of mother's parental rights; and (5) consideration of alternatives less drastic than the termination of the parental relationship.
In our view, and as we will explain, these contentions need not be separately addressed in this opinion. We will find that as to the mother, Maria V., the order of the temporary judge terminating her parental rights, upon this record, constituted not only reversible error but a nullity.
The November 14, 1986, hearing at which the mother's parental rights were terminated, was held before Temporary Judge Milbourne Gwin. The record reflects that although properly cited, the mother did not appear at the hearing nor were the minor children present. Appearing were the father, without counsel, a deputy county counsel for the petitioner, and a social worker for the department of human resources. Neither mother nor the minor children were represented by counsel. Petitioner's counsel did not request the court to appoint counsel for these absent parties and the court did not appoint counsel for them sua sponte. The matter was never mentioned or discussed. As to the merits of whether or not to terminate mother's parental rights, the only information the trial court had before it was an unsworn, seven-page report of Marian Ledesma, a deputy probation officer for the County of Merced, which was prepared on behalf of the Merced County Department of Human Resources, which the court apparently read and considered. We will recite the entire portion of the November 14, 1986, transcript of the hearing relating to the termination of the mother's parental rights:
Article VI, section 21, of the California Constitution provides:
"On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause."
California Rules of Court, rule 244 (hereinafter rule) states in pertinent part:
(Emphasis added.)
The record reflects Mr. Ortega, Deputy County Counsel, and the father, Andrew V., stipulated to Mr. Gwin acting as a temporary judge and Superior Court Judge Michael Hider approved and ordered Mr. Gwin appointed as temporary judge in the instant case. Of course, neither the mother or the minor children, or counsel on their behalf, joined in that stipulation. This latter fact causes us substantial concern regarding the validity of the trial court's subsequent order terminating the mother's parental rights. However, there is another, more immediate, problem which we must address. We have reviewed the entire record in this matter, and are unable to locate any evidence or indication the temporary judge ever took and/or subscribed to the oath of office as required by article VI, section 21 before proceeding to hear this matter. The subscription of the oath of office is not attached to the stipulation and order of approval, as required by rule 244, nor is it contained elsewhere in the file. From the record before us, we must conclude the temporary judge never complied with these mandatory requirements.
The question then is what effect such failure to comply with the constitutional requirements and the requirements of rule 244 has upon the order terminating the mother's parental rights. The relevant part of rule 244, "the temporary judge selected shall take and subscribe the oath of office which shall be attached to the stipulation and order of approval, and the case shall...
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