Los Angeles County Department of Children & Family Services v. T.E. , 182 Cal. Rptr. 3d 765 ( 2015 )

Filed 1/22/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re ANGELINA E., a Person Coming B253176
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK33803)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.E.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Valerie
Skeba and Emma Castro, Juvenile Court Referees. Affirmed.
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of a portion of the Background section as
indicated herein and parts II and III of the Discussion.
Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and
Appellant.
John F. Krattli, County Counsel, Richard D. Weiss, Acting County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Jeanette Cauble, Senior Deputy
County Counsel, for Plaintiff and Respondent.
Frederick R. Bennett for the Superior Court of Los Angeles County as Amicus
Curiae.
_______________________________________
T.E. (Mother) appeals from orders terminating reunification services, denying her
Welfare and Institutions Code section 388 petition, and terminating her parental rights.1
We affirm.
BACKGROUND
[The following portion of the Background section is deleted from publication.]
On January 20, 2012, the Los Angeles County Department of Children and Family
Services (DCFS) filed a petition under section 300, subdivisions (b) and (j). The petition
stated that Mother was incarcerated when she gave birth to Angelina E. in January 2012.
The father was unknown, and Angelina was detained and in foster care. Mother was a
registered controlled substance abuser, tested positive for methamphetamine on May 4,
2012, and was in prison for burglary at the time of the petition. DCFS alleged that
Mother’s substance abuse placed Angelina at risk of harm, and as a result of Mother’s
history of illicit drug use, her two older children (with a different father) were current
dependents. The day after Angelina was born, Mother “stated that she believes her
cousin[] Latisha will take good care of her daughter.” The court detained Angelina after
a hearing and gave DCFS discretion to release the baby to any appropriate relative,
ordering monitored visits for Mother if she was not under the influence.
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
The March 14, 2012 jurisdiction/disposition report stated that Mother was released
from prison on February 7, 2012. The day after her release, she denied that she had used
drugs, although in 2010 “‘some Mexican guys’” put something in her soda and she had
been pulled over by the police. She did not have a home. Angelina had been placed with
Mother’s relative Latisha E. on February 16, 2012. Mother had visited Angelina
regularly since her release, and DCFS recommended that monitored visits continue.
Given Mother’s denial of any drug use and her implication that none of her criminal
history was her fault, DCFS recommended that Angelina remain suitably placed and that
Mother receive monitored visitation and family reunification services. The juvenile court
found that N.C. was Angelina’s alleged father.
A supplemental report stated that Angelina had been placed in the home of
Latisha E. Mother had tested positive for methamphetamine on April 25, 2012, but
continued to deny that she had a drug problem. On the day of the continued hearing,
May 14, 2012, Mother filed a waiver of rights and pleaded no contest to the allegations of
the petition. At the hearing, the juvenile court, Referee Valerie Skeba presiding, accepted
the waiver, sustained the section 300, subdivision (b) allegation of the petition, dismissed
the subdivision (j) allegation, and admonished Mother that reunification services could be
limited to six months. The court ordered Mother to submit to drug testing every other
week or on demand, and attend drug rehabilitation programs, parent education, and
individual counseling, with monitored visitation four hours per week. After the father of
Mother’s two older children (who were no longer dependents of the court) declined to
have Angelina placed with him, the court ordered that Angelina remain placed with
Latisha E.
An interim review report dated August 13, 2012, stated that Mother had not
complied with the drug testing order, with many no-shows and positive results, and
continued to deny that she had a drug problem. She had either missed, canceled, or fallen
asleep during five of 11 visits with Angelina. A status review report dated November 13,
2012, stated that Mother had not provided proof of any participation in court-ordered
services. Her lack of compliance placed Angelina at “very high” risk. Mother had the
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support of Angelina’s caregiver, Latisha E., but Mother did not want to deal with her
because Latisha E. had been honest with DCFS. Mother had not visited or checked on
Angelina’s well-being since August 27, 2012.
At a contested hearing on December 3, 2012, Mother testified, as did her
individual counselor. The juvenile court found that Mother had not participated in an
approved counseling program and found her not credible. Concluding that Mother had
not complied with the case plan, the court terminated reunification services and kept the
placement order in effect, setting a date for a section 366.26 hearing. Mother was granted
monitored visitation for four hours a week. The court notified Mother orally at the
hearing and in writing by providing her with the requisite written notice that the
termination of reunification services could be reviewed only by writ and of the deadline
for filing such a writ.
The section 366.26 report dated May 6, 2013, stated that Angelina remained
placed with Latisha E., Mother’s first cousin, who had four of her own children residing
in the home. Latisha E. was committed to adopting Angelina. Mother’s visitation had
been infrequent, and her last visit was on August 27, 2012. DCFS recommended that the
court terminate Mother’s parental rights, find that Angelina was likely to be adopted, and
proceed with adoption placement. A subsequent status review report stated that Mother
had not complied with the visitation plan, although Latisha E. had consistently brought
Angelina to the DCFS office for the visits. After a June 3, 2013 hearing at which Mother
appeared, the juvenile court ordered that Mother’s visits be confirmed 24 hours in
advance.
At a September 3, 2013 hearing, the first before Commissioner and Referee Emma
Castro, a DCFS report informed the court that the adoption home study regarding Latisha
E. was on hold while DCFS evaluated previous referrals regarding Latisha E.
Mother filed a section 388 petition on December 3, 2013, requesting that the court
reinstate family reunification services and evaluate her maternal great aunt, rather than
her cousin Latisha E., for placement of Angelina. Mother argued that she had made more
progress in her case plan, wanted more services upon her release from custody, and had
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concerns about Latisha E. Mother cited a 23-year-old male living in Latisha E.’s home
and a physical altercation between Latisha E. and a daughter. Mother also claimed that
Latisha E. interfered with her visits and that Latisha E. did not provide a safe
environment for Angelina.
A DCFS report submitted to the court on December 5, 2013, stated that the home
study was reviewed and received secondary approval. Another report informed the court
that DCFS opposed reinstating reunification services because Mother had missed most of
her visitations, did not comply with court orders when she had reunification services, and
Mother “was adamant that the child be placed with the current caregiver until the current
caregiver refused to allow [Mother] extended visits in her home, and unmonitored visits
without DCFS approval.” Mother’s counsel asked for details regarding Latisha E.’s prior
referrals. The juvenile court referred to the December 5 report, which stated that DCFS
had to “basically reinvestigate each referral.” The court concluded that “if the home
study was approved, that means that the referrals were not deemed to be of concern to the
department after being investigated. So the court will accept that document.” The court
denied the section 388 petition because Mother had not demonstrated a change of
circumstances and Mother had been reincarcerated on June 22, 2013, with a release date
of June 2014.
Mother’s counsel then asked for a contested section 366.26 hearing, stating that
Mother had been denied visits by Angelina’s caregiver. The juvenile court denied the
request. The court then terminated Mother’s parental rights under section 366.26, found
the current placement with Latisha E. appropriate, and designated adoption as the
permanent plan with Latisha E. as the prospective adoptive parent.
[The following portion of the Background section is to be published.]
Referee Valerie Skeba terminated reunification services by order dated
December 3, 2012. Thereafter, Commissioner Emma Castro became the judicial officer
presiding. In her order of December 5, 2013, Commissioner Castro denied Mother’s
petition under section 388 for an evidentiary hearing and terminated Mother’s parental
rights pursuant to section 366.26.
5
Mother filed a timely notice of appeal from Commissioner Castro’s December 5,
2013 orders.2 Mother makes no argument regarding those orders, instead arguing only
that the order denying her section 388 petition should be reversed because the juvenile
court erred in not holding an evidentiary hearing and in failing to order the evaluation of
an alternative placement for the minor.
In supplemental briefing, the parties and the superior court addressed Mother’s
contention that Commissioner Castro was not authorized to act as a referee conducting
juvenile court proceedings and therefore her orders denying Mother’s section 388 petition
and terminating her parental rights were void.
We take judicial notice of a January 4, 2001 order issued by James A. Bascue, the
then-presiding judge of the Los Angeles Superior Court, entitled, “ORDER CROSS-
ASSIGNING QUALIFIED SUBORDINATE JUDICIAL OFFICERS PURSUANT TO
GOVERNMENT CODE SECTION 71622(c).” The order states: “[P]ursuant to
Government Code section 71622, subdivision (d) that effective January 4, 2001, and
continuing until further order of the Court, all subordinate judicial officers of the Court
are cross-assigned without additional compensation to exercise all the powers and
perform all the duties authorized by law to be performed by another type of subordinate
judicial officer if the person cross-assigned satisfies the minimum qualifications and
training requirements for the new assignment established by the Judicial Council
pursuant to Government Code section 71622, subdivision (c). [¶] IT IS FURTHER
ORDERED that prior to the implementation of this order as to any particular subordinate
judicial officer, the Executive Officer/Clerk of the Court shall verify that the position is
funded and authorized, and that the person meets the minimum qualifications and training
requirements for the new assignment established by the Judicial Council.”
Government Code section 71622, subdivision (d), added in 2000, states: “The
presiding judge of a superior court may cross-assign one type of subordinate judicial
2 Mother appealed the termination of her parental rights without mentioning the
denial of her section 388 petition, but we construe the notice of appeal to encompass that
denial. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.)
6
officer to exercise all the powers and perform all the duties authorized by law to be
performed by another type of subordinate judicial officer, but only if the person cross-
assigned satisfies the minimum qualifications and training requirements for the new
assignment established by the Judicial Council pursuant to subdivision (c).”
We also take judicial notice of an assignment order issued by Presiding Judge of
the Juvenile Court Michael Nash, which states in pertinent part: “It is hereby ordered that
effective January 1, 2013 . . . the following named Superior Court Commissioners . . . are
. . . appointed to sit as referees pursuant to Section 248 et seq. Welfare and Institutions
Code, and pursuant to the authority delegated to the Presiding Judge of the Juvenile Court
by the Presiding Judge of the Superior Court . . . .” Commissioner Castro’s name does
not appear on the order.
Section 248 states in pertinent part: “(a) A referee shall hear those cases that are
assigned to him or her by the presiding judge of the juvenile court . . . .”
We take judicial notice of an order by Presiding Judge of the Los Angeles
Superior Court David S. Wesley. That order provides in pertinent part: “IT IS HEREBY
ORDERED that effective May 1, 2013, and subject to further order of the Court, the
following named commissioners are assigned to and will preside in Juvenile Courts: [¶]
. . . [¶] Commissioner Emma Castro [¶] . . . [¶] IT IS FURTHER ORDERED that the
aforementioned commissioners are appointed temporary judges while sitting in Juvenile
Courts, or in any other department in which they may preside in the Superior Court.”
In supplemental briefing, the Los Angeles Superior Court made the following
statement: “Annually, it is Judge Michael Nash’s practice as Presiding Judge of the
Juvenile Court to appoint commissioners as referees at the beginning of each calendar
year, following annual assignments of judicial officers. However, Commissioner Castro
was assigned by the Presiding Judge of the Superior Court to the Juvenile Court mid-year
on May 1, 2013, and through inadvertence, the Presiding Judge of the Juvenile Court
neglected to issue an additional order appointing her as a referee. However, by virtue of
the [2001] order of the Presiding Judge of the Superior Court, Commissioner Castro was
7
cross-assigned as a juvenile court referee as of the date of her taking her oath of office on
June 2, 2011.” (Fn. omitted.)
The Los Angeles Superior Court’s brief also represents that “[t]here has been no
further order of the court modifying the cross-assignment” made in Presiding Judge
Bascue’s 2001 order. The superior court argues that, by virtue of the 2001 order, as soon
as Commissioner Castro was “assigned . . . to hear juvenile matters, that appointment and
assignment included her cross-assignment as a juvenile court referee” and Judge Nash’s
later orders were “not required or necessary.”
Finally, we take judicial notice of an assignment order issued by Judge Nash
effective January 1, 2014, which is identical in pertinent part to his January 1, 2013 order
and added Commissioner Castro’s name, among others.
DISCUSSION
I. Commissioner Castro had authority to make the rulings in this case.
Mother contends that only judges, referees, and temporary judges may preside in
juvenile dependency proceedings. The parties agree, as do we. (See In re Courtney H.
(1995) 38 Cal.App.4th 1221, 1225.) Mother also contends that because Commissioner
Castro’s name was not included on Judge Nash’s January 1, 2013 order, her December
2013 orders in Mother’s case were void because she was not then a referee or an agreed-
upon temporary judge. No party contends Commissioner Castro was acting as a
temporary judge. That leaves only one issue: Was Commissioner Castro authorized to
hear dependency cases as a referee when she presided over Mother’s case? We conclude
that she was.
Government Code section 71622, subdivision (a) provides in pertinent part: “Each
trial court may establish and may appoint any subordinate judicial officers that are
deemed necessary to the performance of subordinate judicial duties, as authorized by law
to be performed by subordinate judicial officers.” As in effect at the time of the 2001
order, subdivision (b) provided: “The appointment of a subordinate judicial officer shall
be made by order entered in the minutes of the court.” After amendment in 2003 and as
in effect today and at the time of the 2013 order, subdivision (b) provides that the
8
appointment of a subordinate officer “shall be made by order of the presiding judge or
another judge or a committee to whom appointment or termination authority is delegated
by the court, and shall be entered in the minutes of the court.”
Presiding Judge Bascue’s 2001 order was authorized by Government Code section
71622. In that order he cross-assigned all commissioners (subordinate judicial officers)
to act as referees in juvenile dependency. Nothing in that section requires that judicial
officers be named individually in the order. Thus, on the day Commissioner Castro took
her oath of office as a commissioner, June 2, 2011, she was cross-assigned as a referee,
subject to her being qualified.
No one contends Commissioner Castro was unqualified to perform the functions
of a referee and no one has submitted evidence that the superior court failed to assure that
she was qualified to act as a referee before placing her in juvenile court. Evidence Code
section 664 provides in pertinent part that “[i]t is presumed that official duty has been
regularly performed.” When a public official is obligated to fulfill a duty before acting,
the law presumes that, because the official acted, the duty must have been fulfilled
beforehand. (E.g., Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 836.) In the
absence of evidence that the official duty was not performed, the presumption is
conclusive. (Romero v. County of Santa Clara (1970) 3 Cal.App.3d 700, 705.) Given
the total absence of evidence that the superior court failed to assure that she was
qualified, we must presume pursuant to Evidence Code section 664 that the superior court
did determine in a timely manner that Commissioner Castro was qualified.
Presiding Judge Bascue’s 2001 order expressly states it is effective “continuing
until further order of the Court . . . .” No order of Presiding Judge Wesley or any other
presiding judge purports to terminate the continuing effect of Presiding Judge Bascue’s
2001 order.
Moreover, no order by any presiding judge of the superior court delegates to Judge
Nash the authority to cross-assign commissioners to sit as referees. In addition, there is
nothing in the record to support the argument that any presiding judge delegated
100 percent of his authority to Judge Nash. Indeed, it is unlikely a presiding judge
9
legally could have delegated 100 percent of that authority. (See Cal. Rules of Court, rule
10.603(b)(2) & (d) [limiting a presiding judge’s authority to delegate his or her basic
duties completely].)3
We conclude Commissioner Castro was authorized to make the orders at issue.
II. The termination of Mother’s reunification services is not reviewable by this
appeal.
Mother does not dispute that she received the requisite notice that the termination
of her reunification services was reviewable only by writ petition. (See In re X.Z. (2013)
221 Cal.App.4th 1243, 1248–1251.) Having failed to pursue her proper remedy, Mother
cannot obtain relief by means of this appeal. (Ibid.)
Moreover, Mother has not presented to us any argument that termination of
reunification services was improper.
III. Mother lacks standing to appeal the denial of her section 388 petition.
Mother characterizes her appeal as from the order denying her section 388
petition. She makes no argument, however, regarding any issue raised in her section 388
petition except her request that the court evaluate her maternal aunt for placement. Her
sole contention is that the court abused its discretion when the court denied her section
388 petition without a hearing regarding placement.
Orders denying section 388 petitions are appealable under section 395, but “[n]ot
every party has standing to appeal every appealable order. . . . [O]nly a person aggrieved
3 The concurrence relies upon a May 3, 2013 order and a November 13, 2013
order. These orders are irrelevant to our analysis. Indeed, the November 13, 2013 order
was not an order appointing commissioners as referees. Rather, that order simply
designated the commissioners and judges listed as holding “all purpose” assignments so
that challenges pursuant to Code of Civil Procedure section 170.6 (which was mentioned
specifically in the order) would have to be exercised within a limited period.
The concurrence also questions why Judge Nash’s January 2013 and 2014 orders
were necessary if Presiding Judge Bascue’s 2001 order was adequate. Such a “belt and
suspenders” approach to upholding the law is not unusual. Moreover, the California
Rules of Court encourage superior courts “to publish for general distribution”
information “specifying the judicial assignments of the judges . . . .” (Cal. Rules of
Court, rule 10.603(c)(1)(C).)
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by a decision may appeal. [Citations.] An aggrieved person, for this purpose, is one
whose rights or interests are injuriously affected by the decision in an immediate and
substantial way, and not as a nominal or remote consequence of the decision.” (In re
K.C. (2011) 52 Cal.4th 231, 236 (K.C.).) To determine whether Mother was aggrieved
and therefore has standing to appeal, we must “precisely identify” Mother’s interest.
(Ibid.)
In K.C., supra, 52 Cal.4th 231, the father of a dependent child appealed the denial
of a section 388 petition filed by the child’s grandparents, requesting that his placement
be modified to place the child in their home. The father argued that he believed the child
should be placed with the grandparents, but he did not offer any argument against
terminating his parental rights. The trial court denied the section 388 petition and,
without further argument from the father, terminated his parental rights. The father then
appealed from both the denial of the section 388 petition and the judgment terminating
his parental rights, limiting his argument to the child’s placement and arguing that if the
Court of Appeal reversed the placement order, it should also reverse the judgment
terminating parental rights. The Court of Appeal dismissed the appeal because the father
was not aggrieved by the placement decision, as it could not be shown to affect his
parental rights. (K.C. at p. 235.)
The Supreme Court noted that the father’s reunification services had been
terminated and “the decision to terminate or bypass reunification services ordinarily
constitutes a sufficient basis for terminating parental rights.” (K.C., supra, 52 Cal.4th at
pp. 236–237.) The father did not argue that any exception applied and “does not contend
the order terminating his parental rights was improper in any respect. That he has no
remaining, legally cognizable interest in K.C.’s affairs, including his placement, logically
follows.” (Id. at p. 237.) This was not a case in which “parents whose rights had been
terminated were aggrieved by, and thus did have standing to appeal, pretermination
orders concerning their children’s placement, because the possibility existed that
reversing those orders might lead the juvenile court not to terminate parental rights.
These cases do not assist father because he makes no such argument.” (Ibid.) “From
11
these decisions we derive the following rule: A parent’s appeal from a judgment
terminating parental rights confers standing to appeal an order concerning the dependent
child’s placement only if the placement order’s reversal advances the parent’s argument
against terminating parental rights. This rule does not support father’s claim of standing
to appeal because he did not contest the termination of his parental rights in the juvenile
court. By thus acquiescing in the termination of his rights, he relinquished the only
interest in K.C. that could render him aggrieved by the juvenile court’s order declining to
place the child with grandparents.” (Id. at p. 238.) The Court of Appeal properly
dismissed the father’s appeal for lack of standing because the “father has not shown that
he is aggrieved by the juvenile court’s order denying grandparents’ motion concerning
placement.” (Id. at p. 239.)
As in K.C., supra, 52 Cal.4th 231, Mother’s parental rights were terminated at a
hearing following the denial of a section 388 petition related to placement. Mother limits
her argument on appeal to Angelina’s placement, without any discussion of her other
contentions in her section 388 petition. Unlike the father in K.C., she makes no argument
on appeal that if we reverse the denial of her section 388 petition, we should also reverse
the judgment terminating parental rights. As in K.C., Mother’s failure to contend that the
termination of her parental rights was improper in any respect leaves her with no
remaining legally cognizable interest in Angelina’s placement.
We recognize that at the December 5, 2013 hearing, Mother stated in support of
her request for a contested section 366.26 hearing that she had been denied visitation by
Latisha E. Even construing that as an argument in the trial court against terminating her
parental rights, she has now abandoned any contention that the order terminating her
parental rights was improper by failing to raise that issue on this appeal, wherein she does
not contend that there is any possibility that reversing the denial of the section 388
petition would affect the order terminating her parental rights.
Mother does not have standing to appeal the trial court’s order denying her section
388 petition regarding placement.
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DISPOSITION
The juvenile court’s December 5, 2013 orders are affirmed.
CERTIFIED FOR PARTIAL PUBLICATION.
MILLER, J.*
I concur:
ROTHSCHILD, P. J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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CERTIFIED FOR PUBLICATION
JOHNSON, J., Concurring.
I agree with the majority’s conclusion that Commissioner Emma Castro was
authorized to hear cases as a referee when she issued the minute order on December
2013, but I disagree with the majority’s analysis. The 2001 order cross-assigns each
subordinate judicial officer (such as a commissioner) to exercise the powers and perform
the duties of any other type of subordinate judicial officer (such as a referee), with the
proviso that such cross-assignment is subject to the subordinate judicial officer being
qualified and trained for the cross-assignment. The majority, however, glosses over any
requirement of subsequent action by the court to verify that an individual commissioner
is qualified to be cross-assigned, despite the court’s practice of issuing annual orders
appointing named commissioners as referees. Further, the majority curiously discards as
“irrelevant” the order assigning Commissioner Castro to preside in juvenile court and
appointing her a temporary judge (of which we took judicial notice at the superior court’s
request), and the order assigning cases to her for all purposes including trial. This
reasoning effectively dispenses with the 2001 order’s requirement that a commissioner
meet minimum qualification and training requirements before he or she may be appointed
a referee. But the 2001 order and the statute it implements both explicitly require more,
and, to quote Shakespeare, “there’s the rub.” (Hamlet, act 3 scene 1.)
The timing of Commissioner Castro’s appointment as a referee arose when
counsel for T.E., in supplemental briefing, asked us to take judicial notice of a
January 14, 2013 order by Michael Nash, then the presiding judge of the juvenile court,
entitled “ASSIGNMENT ORDER” and stating that commissioners previously assigned
to sit as temporary judges “are also appointed to sit as referees,” effective January 1,
2013. (We took judicial notice of that order and of a number of other orders, as the
majority describes.) Commissioner Castro was not among the names on the
accompanying list of referees, as she was not assigned to juvenile court until May 1,
2013, as evidenced by a May 3, 2013 order by David S. Wesley, the presiding judge of
the Los Angeles Superior Court, entitled “ASSIGNMENT OF COURT
COMMISSIONER FOR THE YEAR 2013,” and assigning commissioners, including
Commissioner Castro, to preside in juvenile court as temporary judges effective May 1,
2013. Commissioner Castro was named as a referee in Presiding Judge Nash’s January 2,
2014 “ASSIGNMENT ORDER” (of which we took judicial notice on our own motion)
using the same language as the January 2013 assignment order, and appointing
Commissioner Castro as a referee effective January 1, 2014—after she made the orders in
this case in December 2013. The Department of Family and Child Services declined to
stipulate expressly or impliedly to any commissioner hearing the proceedings in the
capacity of a temporary judge. “A court commissioner is a ‘different and separate
statutory creature’ from a juvenile court referee.” “‘The Juvenile Court Law makes no
provision for the use of commissioners in juvenile court.’ (In re Mark L. (1983) 34
Cal.3d 171, 176, fn. 4 . . . .)” (In re Courtney H. (1995) 38 Cal.App.4th 1221, 1224,
1226.) If Commissioner Castro was not a referee, she had no authority to make the
orders.
The majority relies entirely on the 2001 order by James Bascue, then the presiding
judge of the superior court, which states that until further order all subordinate judicial
officers are cross-assigned to perform all the duties of any other type of subordinate
judicial officer, but only “if the person cross-assigned satisfies the minimum
qualifications and training requirements for the new assignment established by the
Judicial Council pursuant to Government Code section 71622, subdivision (c).” The
2001 order also requires that “prior to the implementation of this order as to any
particular subordinate judicial officer,” the executive officer or clerk of the court shall
verify “that the person meets the minimum qualifications and training requirements for
the new assignment established by the Judicial Council.” This language echoes the
referenced statute, Government Code section 71622, subdivision (d), which states: “The
presiding judge of a superior court may cross-assign one type of subordinate judicial
officer to exercise all the powers and perform all the duties authorized by law to be
performed by another type of subordinate judicial officer, but only if the person cross-
2
assigned satisfies the minimum qualifications and training requirements for the new
assignment . . . .” (Italics added.) Both the statute and the 2001 order require that before
cross-assignment, a subordinate judicial officer meet minimum qualification and training
requirements, and both mandate verification by the court that those requirements are met.
I conclude that the January 2013 and January 2014 assignment orders, which state that
they are “pursuant to the authority delegated to the Presiding Judge of the Juvenile Court
by the Presiding Judge of the Superior Court,” implement the 2001 order and satisfy
Government Code section 76122, subdivision (d)’s requirement that the court verify that
the named commissioners, who were previously assigned as temporary judges in juvenile
court, have satisfied the qualification and training requirements to sit as referees. Had
Commissioner Castro been specifically named as a referee in an order like these annual
orders before she presided over T.E.’s case, there would be no issue regarding her
authority.
The majority acknowledges that a 2003 amendment to Government Code section
71622, subdivision (b) specifically allows the superior court to delegate the authority to
appoint a subordinate judicial officer, but the majority ignores the specific language in
the January 2013 and January 2014 annual orders acknowledging that such delegation
took place, thus casting doubt on whether the presiding judge of the juvenile court had
the authority to issue the annual orders appointing commissioners as referees. Notably,
the superior court does not make that argument, and it is not supported by the record. It
is not material whether the delegation of authority was absolute. I trust the language of
the orders to demonstrate that the delegation was sufficient to make the January 2013 and
January 2014 annual orders effective appointments of commissioners as juvenile court
referees. Both of those orders by Judge Nash state that the commissioners appointed as
referees had previously been assigned by order of the presiding judge of the superior
court to sit in juvenile assignments as temporary judges, and we also took judicial notice
of those previous orders. The January 2013 and January 2014 annual orders demonstrate
that there is a difference between assigning a commissioner to juvenile court as a
3
temporary judge and appointing a commissioner as a referee, and that those two events
do not follow automatically or occur simultaneously. They also demonstrate that the
court did not consider that the 2001 order alone was sufficient to appoint every
commissioner as a referee. As I explained above, this is consistent with the statute’s
requirement and the order’s language requiring verification of further training and
qualifications.
The majority dispenses with any requirement of a record that the court has verified
that a commissioner be qualified as required by Government Code section 76122,
subdivision (d) before he or she is cross-assigned as a referee by asserting that no one
claims that Commissioner Castro was unqualified at the time she issued the orders. But
T.E.’s claim is that Commissioner Castro lacked a specific appointment as a referee—a
fact that the parties do not dispute. It is not T.E.’s or any other party’s burden to ask
whether the court has verified that a commissioner is qualified to sit as a referee: the
2001 order requires that the executive officer or clerk of the court shall verify that the
commissioner meets the minimum qualifications and training requirements. The annual
orders appointing commissioners as referees provide the public with the assurance that
the court has verified that juvenile court referees have the training and the qualifications
necessary to make orders in dependency court that as commissioners they had no
authority to make.
The superior court’s brief is silent regarding the verification that Commissioner
Castro met the requirements. It states, however, both that it is the presiding judge of the
juvenile court’s practice to appoint commissioners as referees at the beginning of each
year, and that it was “through inadvertence” that Commissioner Castro was not so
appointed when she was assigned to juvenile court on May 1, 2013. Further, the brief
states that the cross-assignment as a referee took place when she was assigned to hear
juvenile matters. I accept that statement as a representation that Commissioner Castro
met the minimum qualification and training requirements to be a referee when she was
assigned to the Juvenile Court pursuant to the May 2013 order. A subsequent order in
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November 2013 by Presiding Judge of the Juvenile Court Michael Nash (of which we
took judicial notice at the request of the Department of Children and Family Services),
entitled “‘ALL PURPOSE’ ASSIGNMENTS IN THE DEPENDENCY COURTS,”
assigned cases “to the judicial officers regularly presiding in such departments for all
purposes including trial” and included Commissioner Castro, effective June 4, 2013. The
November 2013 order assigning cases to her for all purposes further evidences that at the
time of the December 2013 orders in this case, Commissioner Castro was fully qualified
to be appointed as a referee. The 2001 order cross-assigned Commissioner Castro as a
referee, subject to a requirement that her training and qualifications be verified. The May
2013 and November 2013 orders (which the majority describes as irrelevant) constitute
that verification, especially in light of the superior court’s representation that the absence
of a specific order appointing Commissioner Castro as a referee when she was assigned
to juvenile court in May 2013 was a court oversight. Importantly, I do not conclude that
the May 2013 and November 2013 orders appointed Commissioner Castro as a referee. I
simply believe that those orders evidence a verification by the respective issuing
presiding judges that Commissioner Castro had fulfilled her training and qualification
requirements.
Clarity and certainty, as well as the interests of the public and the litigants (and the
conservation of appellate judicial resources) would have been far better served had the
court followed its practice of issuing a timely and specific appointment order naming
Commissioner Castro as a referee. The general rule is that “absent a specific
appointment as a referee, she is a commissioner or a temporary judge, depending on
whether she meets the statutory requirement of obtaining stipulation of the parties
litigant.” (In re Courtney H., supra, 38 Cal.App.4th at p. 1225.) In Courtney H.,
however, the court reached this conclusion because there was no specific appointment
order naming the commissioner as a referee, and there was “no ambiguity on the face [of
the order] and . . . no reflection of any intent to the contrary.” (Id. at p. 1226.) In this
case, the 2001 order reflects the superior court’s intent that a commissioner be cross-
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assigned as a referee when he or she meets the minimum training and qualification
requirements, and the subsequent orders serve to verify that Commissioner Castro met
those requirements. The majority’s diminishment of the requirement that a commissioner
be qualified and trained before cross-assignment as a referee (and that the court verify the
qualifications and training) is unnecessary to the disposition of this particular case and is
in conflict with the order, the statute, and the record in this case.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
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