Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Marguerite Downing Judge, L.A.S.C. No. CK80771
Law Offices of Katherine Anderson, Victoria Doherty and Diana R. Walch for Petitioner.
No appearance for Respondent.
Andrea Sheridan Ordin, County Counsel, William D. Thetford, Principal Deputy County Counsel for Real Party in Interest.
PINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
The juvenile court abused its discretion by denying F. G.’s (Father) Welfare and Institutions Code section 352 motion to continue the adjudication hearing. Accordingly, the petition is granted.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222–1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTUAL AND PROCEDURAL BACKGROUND
F.G. (Father) is the presumed father of four year old Angel P. and one year old Michelle P. On January 25, 2010, the Department of Children and Family Services (DCFS) filed a section 300 petition as to the minors, and four other children, and alleged, in relevant part, that on prior occasions, Father sexually abused an unrelated child when the child was nine years old by repeatedly fondling her breasts and vagina; such sexual abuse of the unrelated child on the part of Father, and Mother’s failure to protect the children, endangered the childrens’ physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and sexual abuse. At the detention hearing, the children were ordered released to Mother.
The matter was set for an adjudication hearing on February 16, 2010. On February 5, 2010, Father filed a section 827 motion seeking to review the previous case involving Father. Father argued that his counsel needed access to the prior case file because the allegations levied against Father in the instant case are historical and based upon the previous case; allegations which were sustained against Father in 2006.
On February 11, 2010, the adjudication hearing was advanced and vacated and the matter was set for a Pre-Trial Resolution Conference (PRC) on February 23, 2010, and an adjudication hearing for March 24, 2010.
On March 5, 2010, Father filed a section 352 continuance motion on the ground that the Presiding Judge’s Office had not received the prior case file and the section 827 motion was still pending. On March 18, 2010, the juvenile court granted the continuance motion and the adjudication hearing was set for April 28, 2010.
On April 22, 2010, Father filed a second continuance motion based upon the unavailability of the previous case file and the pending section 827 motion. On April 26, 2010, the juvenile court denied the motion on the grounds that the adjudication hearing had already been continued once for receipt of the prior case file. The juvenile court also stated that the 827 motion may never be granted and even if it was, it could be another month or two before discovery was received.
On April 27, 2010, Father filed this instant petition. On that date, Presiding Justice Mallano stayed the adjudication hearing.
DISCUSSION
The juvenile court abused its discretion by denying Father’s section 352 motion to continue the adjudication hearing.
Section 352 provides, in relevant part:
“(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.
“Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.”
Father’s counsel has been unable to prepare this case for the adjudication hearing because the only allegations DCFS has leveled against Father have to do with the prior case. Father’s counsel will need to review the prior case file to prepare the current case for adjudication and to provide effective assistance of counsel. The current allegations regard the sexual abuse of a step-daughter from a previous marriage, when she was a teenager, which places the children at risk of sexual abuse. Further, DCFS is seeking no reunification services for Father, and counsel must review the prior case file to see what services were previously offered to Father and determine Father’s level of compliance. This information is contained in the previous case file and is necessary in order to determine the validity of the no reunification recommendation as well as prepare a defense against this recommendation. Because these arguments constituted “good cause” to continue the adjudication hearing, the refusal of the juvenile court to do so was an abuse of discretion.
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of April 26, 2010, denying Father’s motion to continue the adjudication hearing, and to issue a new and different order granting same, in Los Angeles Superior Court case No. CK80771, entitled In the Matter of Dagoberto P., et al.
The juvenile court shall retrieve the prior case file forthwith and decide the section 827 motion. If the motion is granted, the juvenile court shall allow a reasonable amount of time for Father’s counsel to review the file before setting the adjudication hearing; the juvenile court is directed to conduct the adjudication hearing without further delay.
The temporary stay order is hereby vacated.
MALLANO, P. J., CHANEY, J., JOHNSON, J.