Metropolitan News-Enterprise


Wednesday, April 28, 2004


Page 1


Court of Appeal Rules:

Policy Barring Copies of Guardianship Reports Violates Statute


By DAVID WATSON, Staff Writer


A policy under which the Los Angeles Superior Court’s Probate Department denies parents involved in guardianship proceedings copies of reports prepared by court investigators is illegal, this district’s Court of Appeal ruled yesterday.

Justice Earl Johnson Jr., writing for Div. Seven, said the policy “rests on an erroneous interpretation” of Probate Code Sec. 1513(d), which makes such reports confidential.

Johnson said the court should provide a means of making photocopies of the reports available to litigants and their attorneys sufficiently in advance of hearings to permit them to prepare a response.

The policy allows attorneys, but not parties, to view the reports on the day of the hearing. The attorney can make notes regarding the content of the report, even copying out the entire report longhand, but is not allowed to photocopy it.

The policy also applies to reports prepared by the county’s Department of Children and Family Services.

Sec. 1513(d) provides:

“The report authorized by this section is confidential and shall only be made available to persons who have been served in the proceedings or their attorneys.  The clerk of the court shall make provisions for the limitation of the report exclusively to persons entitled to its receipt.”

Differences Acknowledged

Johnson acknowledged that the language of the section differs from that of analogous provisions applicable to family law and dependency cases. Family Code Sec. 3111 requires that reports of child custody evaluators be “served on the parties or their attorneys” at least 10 days before a hearing.

“It is fair to say the precise provisions of the dependency or family court processes do not apply to guardianship proceedings in probate court,” Johnson wrote. “But this does not mean the Legislature intended or that the language of 1513(d) permits the probate court to deny requests from parents or their counsel for copies of these reports.”

The type of information contained in the guardianship reports, while sensitive, is no different from that contained in dependency and family court evaluations, the justice asserted, adding:

“[T]here is nothing uniquely confidential about the reports in guardianship proceedings that would justify the uniquely restrictive policies the probate court has instituted, unless the Legislature specifically authorized a special level of confidentiality for these documents.”

Johnson rejected the contention that only the information contained in the reports, not the reports themselves, must be made “available” under the statute. Such an interpretation “runs contrary to the language the Legislature employed,” Johnson said, noting that “the words ‘information in’ appear nowhere in 1513(d) and courts generally avoid adding words to a statute when interpreting its meaning.”

Making the report available for inspection and longhand copying was not sufficient to comply with the provisions of the statute, Johnson said.

“In the era of photocopiers and scanners, to be a ‘recipient’ of a document one must receive a photocopy or other duplicate original of that document,” he declared. “At a minimum, one must receive the original long enough to make such a copy through current means of electronic reproduction, and not be limited to handwriting a copy of the printed words.”

Access ‘Drastically’ Restricted

The justice said that under the trial court’s policy, “[a] statute designed only to keep these reports out of the hands of those who have no legitimate need for them has been turned into a policy which drastically restricts access to those reports for the very group the Legislature designated as the sole legitimate recipients.”

The practice of allowing access to the reports only on the day of a hearing also “runs afoul of the obvious intent of 1513(d),” Johnson explained.

“That section authorizes petitioner and any others served in the proceeding to receive these reports for a reason—so they can decide whether to appear and then to prepare for the hearing if they decide to do so,” Johnson wrote. “It defeats this purpose for a court to deny a party access to the report until the party appears for the hearing. Even providing the party a copy of the report at that late date would be of limited assistance. A lawyer and even more so an unrepresented litigant is hard-pressed to make an instantaneous assessment of the report’s content and prepare a proper response.”

Since the appellate court was deciding the issue based on the language of the statute, Johnson said, it was unnecessary to consider the constitutional arguments raised by the parties. The case involved grandparents seeking to be named temporary guardians of their granddaughter, and the writ petition was sought by the child’s mother.

But he said the Superior Court should “modify its practices” to permit copies of the reports to reach litigants and their lawyers far enough in advance of a hearing to satisfy due process concerns.

In making the reports confidential, Johnson said, the Legislature was seeking to keep them out of the hands of the press and public, not prevent access by those involved in the litigation. In a footnote he added that the Probate Department was “free to accompany the copy of the report supplied to the requesting person with a stern written warning or other communication to the effect the recipient is to maintain the confidentiality of the report and its contents.”

He noted that the Superior Court had argued the dispute was moot, since Commissioner H. Ronald Hauptman had ordered the child placed with the mother—who challenged the policy—after the writ petition was filed.

  But future hearings in the case involving similar reports remained “more than possible,” he pointed out. Furthermore, the justice said, the dispute came under a “widely accepted exception to the general rule courts should not decide moot cases,” since it involved an issue of continuing public interest which would otherwise be likely to evade resolution.

Attorney Jane S. Preece of the Legal Aid Foundation of Los Angeles said she and others have been complaining for years about what she described as the Probate Department’s “oddball definition” of making court investigator reports available under Sec. 1513(d). Efforts to convince the court to change its policy proved fruitless, and an earlier writ petition was denied, Preece said.

“We tried to work every angle,” the attorney commented.

She recalled sitting on a bench outside the courtroom—along with an attorney for the grandparents—as both of them read over the report involved in yesterday’s case only minutes before the hearing before Hauptman was to begin.

Rancho Cucamonga attorney Sarah L. Overton of Crandall, Wade & Lowe, who represented the Superior Court on appeal did not return a call seeking comment on the ruling yesterday. Probate Department Assistant Supervising Judge Thomas W. Stoever said he had not yet seen the ruling, but declared:

“Whatever the Court of Appeal tells us to do, we will do.”

The case is Tracy A. v. Superior Court (Pauline I.), B170542.


Copyright 2004, Metropolitan News Company