Metropolitan News-Enterprise


Wednesday, May 10, 2023


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Justices Decide Appeal From Order by Judge Who Was Powerless to Follow Directive in 2022 Opinion

Panel’s Prior Decision Came After Final Action Was Taken

In Case, Divesting Superior Court of Jurisdiction


By a MetNews Staff Writer


Div. Two of the Fourth District Court of Appeal, in a case with an unusual procedural posture, yesterday, in essence, affirmed an order granting the adoption petition of a child’s foster parents over the protest of his aunt who desired custody, holding that a judge’s decision not to allow testimony at the dispositional hearing was not prejudicial.

The appeals court, in an unpublished Jan. 19, 2022 opinion, reversed an order denying the aunt’s motion for an order shifting placement to her because the motion was denied without the taking of testimony. Acting Presiding Justice Douglas P. Miller wrote for the panel in declaring that “the case should be remanded for an evidentiary hearing before considering placement for the Minor.”

What Div. Two did not realize when it issued its opinion is that on Oct. 6, 2020, while the matter was on appeal, the San Bernardino Superior Court—oblivious to the existence of that appeal—granted the foster parents’ adoption petition, doing so without allowing testimony.

When the case came back to the court on remand, Superior Court Judge Steven A. Mapes found himself powerless to abide by the Court of Appeal’s instruction to hold an evidentiary hearing because the court lacked jurisdiction. The aunt appealed from Mapes’s Oct. 5, 2022 order determining that he could take no further action.

What she proposed was that Div. Two recall the remittitur issued on March 23, 2022, and order an evidentiary hearing on placement. Miller wrote for the court in affirming Mapes’s order, saying in yesterday’s unpublished opinion:

“A juvenile court must give relatives preferential consideration when determining a dependent’s placement….That means the issue of relative placement arises at the disposition hearing and ‘whenever a new placement of the child must be made.’…Accordingly, the juvenile court considered the issue of relative placement preference during the disposition hearing, as required, but it excluded live testimony. 

“Because this is an appeal—not a motion—Aunt needs to establish prejudice before we can reverse….Therefore, Aunt needs to direct us to a point in the record that establishes a reasonable probability of a different outcome if live testimony had been taken at the disposition hearing, e.g., direct us to an offer of proof at the disposition hearing. In order to reverse the determination that the juvenile court lacked jurisdiction, then recall the remittitur, and then direct an evidentiary hearing to be held, we would need some indication of a reasonable probability of a different outcome if those things occurred. Aunt makes no such showing. Indeed, Aunt has not addressed the issue of prejudice at all. Therefore, we cannot reverse and make those orders.”

The case is In re A.S., E079931.


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