Sheila B., In re

• Decision Date: 04 October 1993
• Docket Number: No. H008935,H008935
• Citation: 19 Cal.App.4th 187,23 Cal.Rptr.2d 482
• Court: California Court of Appeals Court of Appeals
• Parties: In re SHEILA B., a Person Coming Under the Juvenile Court Law, SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Petitioner and Appellant, v. GITA B., et al., Respondents.

Page 482

23 Cal.Rptr.2d 482

19 Cal.App.4th 187

In re SHEILA B., a Person Coming Under the Juvenile Court Law,

SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Petitioner and Appellant, v. GITA B., et al., Respondents.

No. H008935.

Court of Appeal, Sixth District, California.

Oct. 4, 1993.

Steven M. Woodside, County Counsel, and Maria-Ester De Anda, Deputy County Counsel, for appellants.

Lori Klein, Santa Cruz (Under appointment by the Court of Appeal), Ann Jory, Carmel (Under appointment by the Court of Appeal), for respondents.

ELIA, Associate Justice.

After a contested five-day hearing, the juvenile court declined to take jurisdiction over Sheila B. It therefore ordered the petition alleging Sheila came within the jurisdiction of the juvenile court dismissed. Is this order appealable? We conclude it is. On the merits, we also conclude the juvenile court did not err in failing to assume jurisdiction over Sheila. Since we also conclude an order granting a Code of Civil Procedure section 170.6 motion is not appealable, we will affirm the juvenile court's order.

Factual and Procedural Background

The necessary facts can be briefly stated. Sheila and her brother Lester ¹ were adopted by their paternal grandparents, Areobagita, or Gita and Lorenzo B., when Sheila was two and a half. ²

The B. family emigrated from the Philippines to the United States in 1983. Here, they lived in the same house with Gita and Lorenzo's daughter and son-in-law and their four children. Sheila shared a room with her 9-year-old cousin.

The B. family was very protective of the children, who were not allowed to have friends over, not allowed to go out alone, and not allowed to go to friends' houses. Sheila felt constrained by this family ethic.

In March 1991 Sheila, then 10, was in fifth grade. She had been identified as a gifted student, and excelled academically. Sheila made sexual abuse allegations at her school to a child abuse prevention worker. She alleged her grandfather had molested her since she was five and her uncle since she was eight. She was quite specific about what exactly had taken place. She was taken into protective custody, but was released to Gita several days later, after Gita established separate housing from the family. A WELFARE AND INSTITUTIONS CODE SECTION 300³, subdivision (d) petition was filed on April 1. After Lorenzo was arrested on criminal charges in June, however, Sheila wrote a letter recanting her allegations.

The jurisdiction hearing took place over five court days in September, 1991. Sheila testified on several different occasions during this hearing. Her testimony was inconsistent and fragmented. Although she remembered making the allegations, she stated she had made them because her parents were overprotective, and she wanted to be with her friends. On another occasion, she stated she was afraid of what would happen if she revealed the molest. Later, she refused to answer any questions about the molestation. In answer to questions by the court, however, she again recanted the allegations, and stated that this was the truth.

Dr. Kerns, director of the Center for Child Protection at the Santa Clara Valley Medical Center and Mary Ritter, nurse practitioner and the center's clinical coordinator, together evaluated Sheila for physical evidence of sexual abuse. They testified that although there was a dramatic narrowing of Sheila's hymenal rim, which was highly suggestive of prior penetrating trauma, they could not say definitely that Sheila had been sexually abused. Although Sheila was only 11 when they evaluated her, she was physiologically an adolescent, and the profound and somewhat unknown effects of estrogen prevented certainty in their diagnosis. They ruled out the possibility that their findings could have been caused by masturbation or tampon use, however.

At the conclusion of the hearing, the juvenile court allowed the petition to be amended to add a section 300, subdivision (c) allegation.

On September 18, 1991, the juvenile court announced its decision from the bench. It noted that Sheila had recanted her abuse allegations on the stand, and that neither her testimony nor her prior statements balanced against that testimony had persuaded it of the truth of the allegations. It also noted that the medical testimony had not definitely established that molestation had occurred. Based on all the evidence, the court concluded that the allegations of the petition had not been sustained. It then dismissed the petition.

Discussion

I. Code of Civil Procedure Section 170.6 Challenge

On September 12, 1991, prior to the start of the trial, Lorenzo's attorney made a CODE OF CIVIL PROCEDURE SECTION 170.6⁴ motion to disqualify Honorable Leonard Edwards from presiding over the jurisdiction hearing. The juvenile court determined the motion was timely and granted it. Appellant first challenges this decision. We conclude the order granting the motion is not appealable, however.

Code of Civil Procedure section 170.3, subdivision (d), provides "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision...." Our Supreme Court in People v. Hull (1991) 1 Cal.4th 266, 276, 2 Cal.Rptr.2d 526, 820 P.2d 1036 concluded that this statute "prescribes the exclusive means of appellate review of an unsuccessful peremptory challenge motion." (Accord, People v. Broxson (1991) 228 Cal.App.3d 977, 979, 278 Cal.Rptr. 917.)

The court was asked in Hull to determine whether Code of Civil Procedure section 170.3, subdivision (d), applied to section 170.6 challenges as well as to challenges for cause (§ 170.1). Looking at the ordinary meaning of the statute, at related statutes, at the legislative history, and at the policy behind the legislation, the Supreme Court concluded that the term "disqualification of a judge" in section 170.3, subdivision (d), applied equally to peremptory challenges and to challenges for cause. Although Hull did not decide whether section 170.3, subdivision (d), was the exclusive remedy for a party aggrieved by the grant of a request for disqualification, we think its analysis equally applicable to this situation.

Code of Civil Procedure section 170.3 subdivision (d), applies to "The determination of the question of the disqualification of a judge...." The plain meaning of this language makes it equally applicable to grants of section 170.6 or 170.1 motions as to denials. This interpretation also serves the policy bases behind the statute, judicial economy and fundamental fairness. (Hull, supra, at p. 272, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) If this court determined that Lorenzo's section 170.6 motion was untimely and therefore improperly granted, appellant would reap an "intolerable windfall," a second opportunity to win the merits of the case. (Id. at p. 273, 2 Cal.Rptr.2d 526, 820 P.2d 1036, quoting Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156, 1162, 260 Cal.Rptr. 99.) This interpretation also eliminates "the waste of time and money which inheres if the litigation is permitted to continue unabated, only to be vacated on appeal because the subsequent rulings and judgment were declared 'void' by virtue of the erroneously denied disqualification motion." (Guedalia, supra, at p. 1162, 260 Cal.Rptr. 99.)

Appellant argues that it should have the opportunity to raise this issue on appeal. It notes that it filed a writ petition which was summarily denied by this court, and points to Kowis v. Howard (1992) 3 Cal.4th 888, 12 Cal.Rptr.2d 728, 838 P.2d 250, for the proposition that summary denial of a writ petition does not establish law of the case (id. at p. 899, 12 Cal.Rptr.2d 728, 838 P.2d 250). This argument is unavailing.

The juvenile court ordered the dependency petition dismissed on September 18, 1991. Appellant filed a petition for a writ of mandate or supersedeas and a request for a stay on September 26, 1991 (H009116) which did not raise the issue of whether the Code of Civil Procedure section 170.6 motion was properly granted. We summarily denied this petition on November 20, 1991. The juvenile court granted Lorenzo's section 170.6 motion on September 12, however, and no writ petition was filed within 10 days of this order.

In Hull, petitioner argued that there would be no satisfactory method of appellate review if mandamus were the only remedy to the denial of a Code of Civil Procedure section 170.6 motion. The Supreme Court responded that the adequacy of the remedy was not at issue. (Id. 1 Cal.4th at p. 275, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) This is also true here. The Legislature determined in enacting section 170.3, subdivision (d), that an appellate court should have an opportunity to redress an incorrectly decided section 170.1 or 170.6 motion before the issue in the case is decided on the merits. We conclude this section is equally applicable to grants of section 170.6 challenges as to denials. We therefore conclude the order granting Lorenzo's section 170.6 motion is not appealable.

II. Appealability of Dismissal Order

We asked the parties to address whether the order dismissing the dependency petition was appealable. As a threshold issue, therefore, we must determine the appealability of such an order.

The caselaw provides little guidance on this issue; most of the cases cited by the parties are inapposite. In In re Elaine E. (1990) 221 Cal.App.3d 809, 812, 270 Cal.Rptr. 489, an appeal was taken from an order terminating dependency with family court orders at a status review hearing. The appellate court determined this dismissal was appealable. In In re Tomi C. (1990) 218 Cal.App.3d 694, 267 Cal.Rptr. 210, the department moved, prior to jurisdiction, to dismiss petitions based on allegations of sexual molest by the father, when custody was transferred to mother...