Friday, September 12, 2008
Court: Permanency Plan Selection Hearing Not ‘New Trial’
By a MetNews Staff Writer
A permanent plan selection hearing under Welfare and Institutions Code Sec. 366.26 does not constitute a new trial for purposes of a Code of Civil Procedure Sec. 170.6 challenge to the trial judge, the Fourth District Court of Appeal held yesterday.
Div. Three issued a writ of mandate directing Orange Superior Court Judge James Patrick Marion to vacate his acceptance of a peremptory challenge issued following the remand of a dependency matter involving a mother, identified as C.C., and her two sons, identified as William B. and Noah B.
The appellate court had previously reversed Marion’s order granting C.C. reunification services based on the children’s bond with her, despite finding that there was no realistic possibility of reunification.
On remand, the juvenile court was directed to enter a new order denying services and to set a Sec. 366.26 hearing. William’s counsel then filed a peremptory challenge to Marion.
Marion accepted the challenge and recused himself from Noah’s case, even though Noah did not file a challenge, in order to keep the children’s cases together. The challenge was made under Sec. 170.6(a)(2), which allows a peremptory challenge to be made following the reversal and a trial court’s decision “if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.”
But Justice Richard D. Fybel, writing for the appellate court, explained that the statute only applies where the remand requires a reexamination of a factual or legal issue that was in controversy during the prior trial court proceedings.
Even though the juvenile court would have to consider the strength of the children’s bond with their mother at a permanent plan selection hearing, Fybel wrote that consideration of the parent-child bond at the permanent plan selection hearing would not be for purposes of reunification, but to determine whether the termination of parental rights should be avoided as a permanent plan.
Because the parent-child bond consideration “would take place in a different legal context from the disposition hearing and will involve facts as they then exist,” Fybel reasoned that the consideration would not constitute a reexamination of an issue of fact or a retrial of the dispositional issues.
“Our remand to the juvenile court was clearly for the performance of ministerial acts,” he concluded.
Justices William F. Rylaarsdam and Raymond J. Ikola joined Fybel in his opinion.
The case is C.C. v. Superior Court (Orange County Social Services Agency), G040580.
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