In re Luis S. CA1/2 ( 2013 )

Filed 12/20/13 In re Luis S. CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re LUIS S., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS S., A137585
Defendant and Appellant. (Alameda County
Super. Ct. No. SJ121819301)
Luis S. was made a ward of the Juvenile Court because of his seemingly
incorrigible truancy. He continued missing school. On Friday, January 4, 2013, the court
remanded Luis to Juvenile Hall for the weekend ending January 6. Luis has appealed the
remand order, attacking it as a de facto contempt order that is invalid because it did not
comply with the contempt procedures spelled out in the Code of Civil Procedure.
After Luis’s appeal was briefed, our colleagues in Division Three held that the
remand order was not appealable, but the defective appeal would be treated as a petition
for an extraordinary writ. (In re M.R. (2013) 220 Cal.App.4th 49, 64-65.) Division
Three further held that “Although the appeal is technically moot” because the remand
period had expired, “we shall exercise our inherent discretion to resolve an issue of broad
public interest that is likely to recur while evading appellate review.” (Id. at 56.) We
adopt the same approach, in part. We too will treat this defective appeal as a writ
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petition. Although this dispute does qualify as moot—because the period for the
weekend remand has long since passed—we will address some of the merits, although
with nothing approaching the thoroughness of Division Three.
We have nothing to add to the substance of that analysis, which establishes that
the summary nature of the remand procedure employed by the juvenile court was
improperly used as a substitute for the statutory mechanism for adjudicating a contempt.
We do, however, wish to express one thought that has occurred to us after reviewing a
number of these remand orders from the juvenile court.
We have noted that the court has only ordered a remand (which has never been for
more than a weekend) when it believed all other avenues to correct a ward’s chronic
truancy have been tried and failed. The record we have summarized here demonstrates
the court’s genuine concern for the ward’s best interest. That focus never wavered, and
was never tainted with an inappropriate impulse or motive. The court was simply wrong
in believing that the remand procedure could take the place of the more formalized
contempt process.
Ordinarily, if the case would not be treated as moot, we would simply return the
matter to the trial court, confidant in the presumption that it would do the right thing. But
given the novel situation, and the sensitive nature of proceedings in the juvenile court, we
will direct the juvenile court to annul the remand order. This is no reflection on the
dedication or ability of this particular judicial officer. We are certain that once the court
becomes aware of the inappropriateness of the remand procedure, it will on its own
initiative annul all such orders that are returned to it by this court.
Luis’s motion for judicial notice of other pending appeals presenting the same
issue is denied.
The purported appeal is dismissed. The juvenile court is directed to annul its
remand order of January 4, 2013.
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_________________________
Richman, J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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