Court Grants Petition Compelling Court to Grant Hearing Within 15 Days

Court Grants Petition Compelling Court to Grant Hearing Within 15 Days

October 21, 2020

In this case, the Second District granted a petition for a writ of mandate compelling the juvenile court to hold a section 364 review hearing within 15 days “(a)bsent a new and different order continuing the hearing on a proper legal basis.” It said:

“In response to the COVID-19 global pandemic, the Governor of California and the Chief Justice of the California Supreme Court issued a series of orders that permit the extension of time within which certain hearings must occur. Here, petitioner, D.P. (father), joined by A.P. (mother), M.P. and Am.P. (children), and the Los Angeles County Department of Children and Family Services (Department) contend the juvenile court erred in continuing a hearing six months beyond the time period allowed by statute as modified by emergency order. We agree and grant the petition.”

“…Kevin C. Brazile, Presiding Judge of the Superior Court for the County of Los Angeles, issued a general order on March 17, 2020, providing that all courtrooms would remain closed for judicial business beginning March 20, 2020, with the exception of specified “time-sensitive, essential functions.” “Time-sensitive, essential functions” included juvenile arraignment and detention hearings, but not section 364 review hearings. The order also provided: ‘NOTICE IS HEREBY GIVEN THAT ALL OTHER MATTERS WILL BE CONTINUED BY THE COURT.’”

“…On April 9, 2020, Victor H. Greenberg, Presiding Judge of the juvenile courts in Los Angeles County, issued a memorandum to juvenile court dependency judges discussing dependency cases and continuances. Judge Greenberg explained that in order to ‘protect the health and safety of litigants, attorneys, justice partners, staff and the bench,’ Judge Brazile had extended existing operational limits until an anticipated reopening date of June 22, 2020. Because the court would continue to perform only essential functions until reopening, it was necessary to calendar nonessential matters for a date beyond June 22. Judge Greenberg recognized that ‘given the likelihood that strict social distancing guidelines will continue to be necessary, as well as the backlogs created during our period of limited operations, it is not feasible to expect an immediate return to normal operations. In addition, while the juvenile courts were fortunate to move quickly to remote hearing capability, the capacity of the court to expand development, support, and implementation of such services is limited by available resources.’”

“Judge Greenberg further explained efforts to prioritize dependency cases: ‘Beyond [e]ssential [h]earings, we have endeavored to prioritize hearings in which the court makes factual determinations regarding allegations of illegal activity, abuse and neglect, in order to provide for due process and the safety of youth, children and our communities. We have further focused upon those hearings where release from detention, return home, or the establishment of a permanent plan is under consideration. In making these decisions, we have necessarily been forced to deem situations in which youth and children are stable and not at risk as less urgent, and to rely to a greater degree upon our justice partners to provide proper care, supervision, oversight, and identification of emergent issues.’ Judge Greenberg directed juvenile judicial officers to continue immediately all non-essential matters calendared before June 22, 2020, in accordance with a prioritization schedule set forth in the memorandum. That schedule set priorities by the type of statutory hearing to be held, which bore only a rough approximation to the urgency of any concerns with a child’s welfare in a particular case. Judge Greenberg also advised that ‘[I]f you have a particular Non-Essential hearing that you believe must be heard outside the Prioritization Schedule, you must receive approval from [one of three supervising judges].’”

“On April 14, 2020, Judge Greenberg modified the prioritization schedule. In a further memorandum to dependency judicial officers, Judge Greenberg estimated that, despite efforts to hear essential matters remotely, more than 30,000 hearings would have to be continued prior to the anticipated June 22 reopening of the juvenile court. He anticipated ‘additional potential backlogs after June 22 as we reopen to the extent social distancing allows.’ With respect to section 364 review hearings, Judge Greenberg directed they be continued to a date within 220 to 270 days after the expected June 22 reopening.”

“Consistent with Judge Greenberg’s directive, on April 29, 2020, Commissioner Emma Castro held a nonappearance progress report hearing and continued the May 14, 2020, hearing in this case for 220 days, more than eight months, to January 28, 2021. The minute order states: ‘Given the recently declared national state of emergency related to the COVID[-]19 pandemic, and the directives from Governor Newsom, health officials and court leadership, matters are to be continued. Good cause existing, this matter is continued to [the] date, and time indicated [below].’ There is no evidence any party had an opportunity to object. This is the order challenged in this writ proceeding.”

“…On July 10, 2020, Judge Brazile issued General Order 2020-GEN-019–00,10 which, among other things, extended certain time periods under the Welfare and Institutions Code. Judge Brazile did not, however, adopt Judge Greenberg’s prioritization schedule or otherwise authorize the continuance of section 364 matters beyond 60 days.”

“…The juvenile court continued the section 364 status hearing for 220 days, citing ‘directives from Governor Newsom, health officials and court leadership.’ As we discussed above, Emergency rule 6, which was enacted pursuant to Governor Newsom’s executive order, only allows a continuance of 60 days. Thus, at most, Commissioner Castro could continue the section 364 hearing from May 14, 2020, to July 13, 2020. Further, although the Chief Justice’s statewide order of March 23, 2020, authorized superior courts to adopt proposed rules or rule amendments intended to address the impact of the COVID-19 pandemic, none of Judge Brazile’s orders allowed the juvenile court’s continuance in this matter. Thus, and as the respondent court concedes, the only authority for the continuance in this matter was Judge Greenberg’s memoranda, which prioritized juvenile court hearings based on the type of statutory hearing to be held.”

“…As we note above, Judge Brazile did not adopt Judge Greenberg’s prioritization schedule when issuing various orders even though the Chief Justice authorized him to adopt rules or rule amendments to address the impact of the COVID-19 pandemic to take effect immediately. We do not express an opinion on whether Judge Brazile, in his capacity as presiding judge, may personally issue an order that prioritizes dependency hearings in light of then prevailing public health conditions in Los Angeles County, the feasibility and efficiency of remote hearings, and an assessment of available judicial resources to assist the juvenile courts in completing the required hearings.”

Read the court’s full opinion.


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