Persons Coming Under the Juvenile Court Law. D.P. v. Superior Court of L. A. Cnty. (In re M.P.)

• Court: California Court of Appeals
• Citation: 52 Cal.App.5th 1013,267 Cal.Rptr.3d 106
• Decision Date: 03 August 2020
• Docket Number: No. B306181,B306181
• Parties: IN RE M.P. et al., Persons Coming Under the Juvenile Court Law. D.P. et al., Petitioners, v. The Superior Court of Los Angeles County, Respondent, The Department of Children and Family Services, Real Party in Interest.

52 Cal.App.5th 1013

267 Cal.Rptr.3d 106

IN RE M.P. et al., Persons Coming Under the Juvenile Court Law.

D.P. et al., Petitioners,

v.The Superior Court of Los Angeles County, Respondent,The Department of Children and Family Services, Real Party in Interest.

No. B306181

Court of Appeal, Second District, Division 5, California.

Filed August 3, 2020

Law Office of Jolene Metzger and Jason Steinberg, Monterey Park, for Petitioner D.P.

Law Office of Thomas Hayes and Sue P. Dell for Petitioner A.P.

Children's Law Center of California and Michael T. Ono for Petitioner Am.P.

Children's Law Center of California and Stacie Hendrix for Petitioner M.P.

Mary C. Wickham, County Counsel, and Peter A. Ferrera, Principal Deputy County Counsel, for Petitioner and Real Party in Interest.

Clyde & Co US and Douglas J. Collodel, Los Angeles, for Respondent.

KIM, J.

I. INTRODUCTION

In response to the COVID-19 global pandemic, the Governor of California and the Chief Justice of the California Supreme Court issued a series of orders that permit the extension of time within which certain hearings must occur. Here, petitioner, D.P. (father), joined by A.P. (mother), M.P. and Am.P. (children), and the Los Angeles County Department of Children and Family Services (Department) contend the juvenile court erred in continuing a hearing six months beyond the time period allowed by statute as modified by emergency order. We agree and grant the petition.

II. FACTUAL AND PROCEDURAL HISTORY

The juvenile court declared the children dependents of the court under Welfare and Institutions Code section 300.¹ Initially, the court removed the children from parental custody. On October 9, 2019, however, the court ordered the children released to mother with monitored visitation by father. On November 14, 2019, as required by section 364, the court set a review hearing for six months later, on May 14, 2020, in order for the court to determine whether continued jurisdiction was necessary. As of April 28, 2020, the children remained with their mother and, according to the Department, were doing well. The Department recommended "that jurisdiction be terminated with Family Law Order in place," and that the court grant joint legal custody to the parents, primary physical custody to mother, and monitored visitation by father. Because the juvenile court was operating in a very limited capacity at the time, the May 14, 2020, hearing was continued to a later date.

On March 4, 2020, due to the outbreak of the COVID-19 virus, Governor Gavin Newsom declared a state of emergency.² On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.³ On March 19, 2020, Governor Newsom issued an executive order directing all Californians not providing essential services to stay at home.⁴ The order did not close the courts, which are considered an essential service.

Kevin C. Brazile, Presiding Judge of the Superior Court for the County of Los Angeles, issued a general order on March 17, 2020, providing that all courtrooms would remain closed for judicial business beginning March 20, 2020, with the exception of specified "time-sensitive, essential functions." "Time-sensitive, essential functions" included juvenile arraignment and detention hearings, but not section 364 review hearings. The order also provided: "NOTICE IS HEREBY GIVEN THAT ALL OTHER MATTERS WILL BE CONTINUED BY THE COURT. "⁵

In a statewide order issued on March 23, 2020, Chief Justice Tani G. Cantil-Sakauye recognized that the COVID-19 virus would severely impact the state courts’ operations.⁶ Thus, pursuant to her authority under the California Constitution, article VI, section 6, and Government Code section 68115, the Chief Justice issued a statewide order that authorized superior courts to adopt proposed rules or rule amendments to address the impact of the COVID-19 pandemic to take effect immediately, without advance circulation for 45 days of public comment.

On March 27, 2020, Governor Newsom issued an executive order acknowledging that "the Judicial Branch retains extensive authority, statutory and otherwise, to manage its own operations as it deems appropriate to mitigate the impacts of COVID-19." (Exec. Ord. No. N-38-20.)⁷ "The order suspended any limitations in Government Code section 68115 or any other provision of law that limited the Judicial Council's ability to issue emergency orders or rules, and suspended statutes that may be inconsistent with rules the Judicial Council may adopt." ( Stanley v. Superior Court (2020) 50 Cal.App.5th 164, 167–168, 263 Cal.Rptr.3d 735.)

Acting on that authority, on April 6, 2020, the Judicial Council issued emergency rules. Emergency rule 6 addresses juvenile dependency proceedings and provides that "[a] court may hold any proceeding under this rule via remote technology consistent with [California Rules of Court,] rule 5.531 and [E]mergency rule 3 [which permits courts to ‘require that judicial proceedings and court operations be conducted remotely’]." It further provides, with exceptions not applicable here: "If a court hearing cannot occur either in the courthouse or remotely, the hearing may be continued up to 60 days ...." (Emergency rule 6(c)(6).) The rule remains in effect "until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council." (Emergency rule 6(d).) The Governor has not declared the state of emergency lifted and Emergency rule 6 has not been amended or repealed. Emergency rule 6(c)(6) authorized the juvenile court to continue the May 14, 2020, hearing at issue to not later than July 13, 2020. As discussed below, the court continued the hearing to a date more than six months beyond July 13, 2020.

On April 9, 2020, Victor H. Greenberg, Presiding Judge of the juvenile courts in Los Angeles County, issued a memorandum to juvenile court dependency judges discussing dependency cases and continuances. Judge Greenberg explained that in order to "protect the health and safety of litigants, attorneys, justice partners, staff and the bench," Judge Brazile had extended existing operational limits until an anticipated reopening date of June 22, 2020. Because the court would continue to perform only essential functions until reopening, it was necessary to calendar nonessential matters for a date beyond June 22. Judge Greenberg recognized that "given the likelihood that strict social distancing guidelines will continue to be necessary, as well as the backlogs created during our period of limited operations, it is not feasible to expect an immediate return to normal operations. In addition, while the juvenile courts were fortunate to move quickly to remote hearing capability, the capacity of the court to expand development, support, and implementation of such services is limited by available resources."

Judge Greenberg further explained efforts to prioritize dependency cases: "Beyond [e]ssential [h]earings, we have endeavored to prioritize hearings in which the court makes factual determinations regarding allegations of illegal activity, abuse and neglect, in order to provide for due process and the safety of youth, children and our communities. We have further focused upon those hearings where release from detention, return home, or the establishment of a permanent plan is under consideration. In making these decisions, we have necessarily been forced to deem situations in which youth and children are stable and not at risk as less urgent, and to rely to a greater degree upon our justice partners to provide proper care, supervision, oversight, and identification of emergent issues." Judge Greenberg directed juvenile judicial officers to continue immediately all non-essential matters calendared before June 22, 2020, in accordance with a prioritization schedule set forth in the memorandum. That schedule set priorities by the type of statutory hearing to be held, which bore only a rough approximation to the urgency of any concerns with a child's welfare in a particular case. Judge Greenberg also advised that "[i]f you have a particular Non-Essential hearing that you believe must be heard outside the Prioritization Schedule, you must receive approval from [one of three supervising judges]."

On April 14, 2020, Judge Greenberg modified the prioritization schedule. In a further memorandum to dependency judicial officers, Judge Greenberg estimated that, despite efforts to hear essential matters remotely, more than 30,000 hearings would have to be continued prior to the anticipated June 22 reopening of the juvenile court. He anticipated "additional potential backlogs after June 22 as we reopen to the extent social distancing allows." With respect to section 364 review hearings, Judge Greenberg directed they be continued to a date within 220 to 270 days after the expected June 22 reopening.

Consistent with Judge Greenberg's directive, on April 29, 2020, Commissioner Emma Castro held a nonappearance progress report hearing and continued the May 14, 2020, hearing in this case for 220 days, more than eight months, to January 28, 2021. The minute order states: "Given the recently declared national state of emergency related to the COVID[-]19 pandemic, and the directives from Governor Newsom, health officials and court leadership, matters are to be continued. Good cause existing, this matter is continued to [the] date, and time indicated [below]." There is no evidence any party had an opportunity to object. This is the order challenged in this writ proceeding.

In June 2020, the Judicial Council's Pandemic Continuity of Operations Working Group issued a Resource Guide (Guide).⁸ The Guide provides guidance to courts on case management "as they continue to hear essential matters and expand operations to include additional judicial proceedings." (Guide, p. 56, italics omitted.) With respect to physical resources, the Guide advises: "Assess the availability of physical facility...