Joyce G. v. Superior Court

• Decision Date: 05 October 1995
• Docket Number: No. C021366,C021366
• Citation: 45 Cal.Rptr.2d 805,38 Cal.App.4th 1501
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7905, 95 Daily Journal D.A.R. 13,508 JOYCE G., Petitioner, v. SUPERIOR COURT of Nevada County, Respondent, NEVADA COUNTY CHILD PROTECTIVE SERVICES, Real Party in Interest.

Page 805

45 Cal.Rptr.2d 805

38 Cal.App.4th 1501, 95 Cal. Daily Op. Serv. 7905,

95 Daily Journal D.A.R. 13,508

JOYCE G., Petitioner, v. SUPERIOR COURT of Nevada County, Respondent, NEVADA COUNTY CHILD PROTECTIVE SERVICES, Real Party in Interest.

No. C021366.

Court of Appeal, Third District, California.

Oct. 5, 1995.

Richard N. Campbell, Nevada County Public Defender, Daniel M. Geffner, Deputy Public Defender, for petitioner.

No appearance, for respondent.

James A. Curtis, Nevada County Counsel, Keith C. Johnson, Deputy County Counsel, for real party in interest.

PUGLIA, Presiding Justice.

I

Petitioner seeks an extraordinary writ, pursuant to rule 39.1B of the California Rules of Court, to vacate the order of the respondent court directing that a selection and implementation hearing be held pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan for petitioner's minor child. ¹

The petition for writ is substantively meager and the "supporting" points and authorities are even less helpful, if that is possible. Since review by extraordinary writ is not of right, but is addressed to the sound discretion of the court, this petition would ordinarily be a good candidate for summary denial. (See Rayna R. v. Superior Court (1993) 20 Cal.App.4th 1398, 1407, 25 Cal.Rptr.2d 259.) However, subdivision (l ) of section 366.26 and Rule 39.1B have been judicially construed to require an alternative writ or order to show cause to issue and a decision by written opinion to be rendered in every such proceeding. (In re Shaundra L. (1995) 33 Cal.App.4th 303, 314-316, 39 Cal.Rptr.2d 299; see also James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1018, 41 Cal.Rptr.2d 762.) Thus, a threshold question is presented whether the writ review created by section 366.26 subdivision (l ) and implemented by Rule 39.1B excludes summary denial as a dispositional option and, if not, under what circumstances is it an appropriate disposition. Addressing that issue, we shall conclude, contrary to In re Shaundra L., supra, 33 Cal.App.4th 303, 39 Cal.Rptr.2d 299, that the Legislature did not intend to require an alternative writ or order to show cause and a decision by written opinion in all Rule 39.1B writ proceedings. Quite the contrary, the Legislature considered such requirements but then expressly rejected them. The language, legislative history, and historical background of the 1994 amendments to section 366.26 demonstrate the Legislature contemplated that the courts would exercise discretion in appropriate cases summarily to deny Rule 39.1B petitions. We shall further conclude that summary denial is appropriate in limited circumstances i.e., when the petition (1) is untimely filed, (2) fails to tender and substantively to address a material issue or issues, (3) is not supported by an adequate record, or (4) when a full examination of the proceedings reveals that petitioner has not tendered an arguable issue. Applying these principles to the instant petition, we conclude after an examination of the record and the

written submissions of the parties that petitioner has not tendered an arguable issue. Accordingly, we shall deny the petition summarily.

II

Reunification is the third of the four "phases" of juvenile dependency proceedings. It is preceded by the jurisdiction and disposition phases and, where reunification fails, it is followed by selection and implementation of a permanent plan. (In re Matthew C. (1993) 6 Cal.4th 386, 391, 24 Cal.Rptr.2d 765, 862 P.2d 765.) When the juvenile court at the 12-month or 18-month status review hearing orders the termination of reunification services, the court must set the matter within 120 days for a section 366.26 hearing to select and implement a permanent plan at which time parental rights may be terminated. (See generally In re Matthew C., supra, 6 Cal.4th at pp. 391-392, 24 Cal.Rptr.2d 765, 862 P.2d 765; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249, 19 Cal.Rptr.2d 698, 851 P.2d 1307; §§ 366.21, subds. (g)(3), (h); 366.22, subd. (a); 366.26, subd. (b)(1).)

When the Supreme Court decided In re Matthew C., former subdivision (k) of section 366.26 provided that an order setting a section 366.26 hearing "is not an appealable order, but may be the subject of review by extraordinary writ." (See Stats.1991, ch. 820, § 5; Stats.1992, ch. 163, § 140.) In re Matthew C. held that this language meant the order setting a section 366.26 hearing, though not appealable, could be reviewed immediately by extraordinary writ and thereafter in an appeal from the final order made at the section 366.26 hearing. (6 Cal.4th at p. 401, 24 Cal.Rptr.2d 765, 862 P.2d 765.)

In 1994, the Legislature, responding to the decision in In re Matthew C., replaced the language in former subdivision (k) regarding appealability with that of current subdivision (l ) of section 366.26. (Stats.1994, ch. 1007, § 2.) ²

Subdivision (l )(1) of section 366.26 provides that an order setting a section 366.26 hearing is not "appealable at anytime unless" specified steps are timely taken to secure review by extraordinary writ. In order to obtain review on appeal from the final order in the section 366.26 hearing of issues subsumed within an order setting a section 366.26 hearing, a party must first timely file a writ petition seeking review of the order setting the section 366.26 hearing; the petition must substantively address the specific issues to be challenged; the petition must be supported by an adequate record; and finally, the petition must have been "summarily denied or otherwise not decided on the merits." (§ 366.26, subd. (l )(1)(C).)

Subdivision (l )(2) of section 366.26 states that failure of a writ petitioner to comply with the specified steps set out in subdivision (l )(1) "shall preclude subsequent review by appeal of the findings and orders made pursuant to this section." ³

Subdivision (l )(3) of section 366.26 requires the Judicial Council to adopt rules Finally, subdivision (l )(4) of section 366.26 states it is the Legislature's intent to "achieve a substantive and meritorious [sic ] review by the appellate court" within the 120-day time limit specified in sections 366.21 and 366.22, and to "[e]ncourage the appellate court to determine all [such] writ petitions.... on their merits" ⁴

ensuring that trial courts advise the parties regarding writ review, that [38 Cal.App.4th 1508] trial records are promptly transmitted to the appellate court, that "adequate time requirements" for counsel and the court "exist" to implement the procedure, and that parents or guardians or trial counsel or other counsel be charged with responsibility for filing writ petitions.

III

"[T]he objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] In determining intent, we look first to the words themselves. [Citations.] When the language is clear and unambiguous, there is no need for construction. [Citations.] When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part. [Citations.]" (People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008, 239 Cal.Rptr. 656, 741 P.2d 154.)

Senate Bill No. 1531 was the instrumentality by which former subdivision (k) of section 366.26 was amended. As introduced in and passed by the Senate, it required that the appellate courts "shall consider and decide" procedurally regular Rule 39.1B petitions "on the merits." ⁵ An Assembly amendment on August 9, 1994, added to this language the requirements that the appellate courts "shall issue an order to show cause ... and issue a written opinion" in every Rule 39.1B writ In light of this legislative history, we would exceed our authority if we were to construe section 366.26 to require issuance of an alternative writ or order to show cause and written opinion in every Rule 39.1B writ proceeding, given that the Legislature specifically rejected that formulation. "For three justices to construe a law in a fashion inconsistent with statutory language deliberately chosen by a majority of the Legislature and approved by the Governor, in the absence of a constitutional infirmity, is an act squarely in contravention of the fundamental principles of a democratic form of government." (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 192, fn. 8, 269 Cal.Rptr. 240.)

                proceeding. 6  Nine days later, the Assembly again amended Senate Bill 1531, deleting the provisions requiring the court to "consider and decide the matter on the merits," and to issue an order to show cause and a written opinion, and replacing them with language substantially identical to that in the final version of the bill.  (Assem. Amend. to Sen.  Bill No. 1531 (1993-1994 Reg.Sess.) August 18, 1994, §§ 1, 2.)  "The successive drafts of [Senate Bill No. 1531] before the Legislature are helpful in interpreting [the] statute...."  (State Farm Mut. Auto.  Ins. Co. v. Haight (1988) 205 Cal.App.3d 223, 236, 252 Cal.Rptr. 162.)
                

The Shaundra L. court failed to recognize that the Legislature considered and rejected language mandating an order to show cause, decision on the merits and written opinion. Shaundra L. relied on legislative staff reports which indicate Senate Bill No. 1531 requires the appellate courts to issue orders to show cause and written opinions in all Rule 39.1B writ proceedings. (33 Cal.App.4th at page 315, 39 Cal.Rptr.2d 299.) However, those staff reports refer to the language of the August 9, 1994, Assembly amendment to the Senate bill which was later deleted by the Assembly on August 18, 1994. ⁷

IV

As we have explained, the Legislature amended section 366.26 in response to the holding in In re Matthew C.,...