In re Justin O.

Filed 3/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re JUSTIN O. et al., Persons B287406
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. CK74972)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
V.M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Emma Castro, Commissioner and Sherri Sobel,
Juvenile Court Referee. Reversed.
Michelle L. Jarvis, under appointment by the
Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
____________________
Dependency proceedings commenced in October 2008 with
Shane (also referred to in the record as Shawn), mother’s oldest
child. In 2011, maternal grandmother (Grandmother) adopted
Shane. Grandmother also had custody of mother’s younger
children David, Justin, and Liam, the subjects of the current
appeal.
In July 2017, the Los Angeles County Department of
Children and Family Services (DCFS) accused Grandmother of
physically abusing then four-year-old Justin and filed a
supplemental Welfare and Institutions Code 1 section 387
petition. Evidence from a forensic examination was inconclusive;
the nurse examiner was unable either to rule out accidental
trauma or to conclude Grandmother physically abused Justin.
The juvenile court denied Grandmother de facto parent
status notwithstanding the undisputed facts that mother’s four
children lived with her, and that Grandmother cared for them as
a parent for an extended period of time. The juvenile court then
refused to permit Grandmother to defend herself against the
allegations of physical abuse. Her counsel was not permitted to
admit evidence or argue on her behalf. Without hearing from
1 Undesignated statutory citations are to the Welfare and
Institutions Code.
2
Grandmother or her counsel, the juvenile court sustained the
allegation of physical abuse, and DCFS removed David, Justin,
and Liam from Grandmother’s care.
On appeal Grandmother challenges the juvenile court’s
denial of her requests for de facto parent status, made prior to
the sustained findings of abuse. Grandmother also challenges
the order sustaining the section 387 petition.
We conclude that the juvenile court erred in denying
Grandmother de facto parent status. The court then compounded
the error by refusing to allow Grandmother an opportunity to
present evidence or argument at the purported “hearing” on the
section 387 petition. We reject respondent’s argument that the
appeal is moot. A decision in this appeal may affect
Grandmother’s visitation with the Children, as well as her ability
effectively to parent her adopted son, Shane, who remains in her
custody. We reverse the juvenile court’s order sustaining the
section 387 petition.
BACKGROUND 2
Grandmother, V.M., was a licensed foster parent from 1993
to 2011. Grandmother provided a foster home for mother
beginning when mother was seven years old, and Grandmother
subsequently adopted mother. At the time mother began living
with Grandmother, mother suffered from attention deficit
disorder, attention deficit hyperactivity disorder, and bipolar
depression. Grandmother taught elementary school for 30 years
before retiring.
2 Finding good cause, on our own motion, we take judicial
notice of the juvenile court record in Los Angeles Superior Court
case Nos. CK74972 and DK23938. (Evid. Code, § 452, subd. (d).)
3
This case concerns three of mother’s five children—Justin,
David, and Liam (the Children). The juvenile court previously
terminated mother’s parental rights to her oldest child Shane
and, as noted, Grandmother adopted Shane in January 2011.
Shane had been living with Grandmother since he was three
months old, and Grandmother’s adoption home study was
completed in December 2009. DCFS reported that Grandmother
provided Shane with “a safe, stable, and loving environment.”
Justin was born in April 2013. In April 2014, the juvenile
court assumed jurisdiction over him. DCFS initially placed
Justin with paternal relatives. In August 2015, the juvenile
court denied Grandmother’s section 388 petition seeking an order
placing Justin in her care. Prior to denying Grandmother’s
petition, the juvenile court allowed Grandmother to testify at a
hearing. In October 2015, DCFS reported that no paternal
relative was able to care for Justin. That same month, DCFS
placed Justin with Grandmother. Grandmother indicated that
she was aware of, and willing to care for Justin’s motor and
speech delays. She expressed an interest in adopting Justin, and
DCFS described her as a prospective adoptive parent.
David was born in July 2014, and when he was
one month old, DCFS placed him in Grandmother’s care. In
September 2014, the court assumed jurisdiction over David.
In November 2015, DCFS reported that Grandmother was
planning to adopt David. In April 2015, DCFS reported that
David “remains well cared for in the home of ” Grandmother.
“David was often smiling and appeared very attached to
[Grandmother]. David is a healthy baby and is meeting his
developmental milestones.” In October 2015, DCFS reported that
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Grandmother “has demonstrated that she has the ability to meet
all of David’s needs, including medical care.”
Liam was born in November 2015. In 2016, the
juvenile court assumed jurisdiction over Liam. Three days after
his birth, DCFS placed him in Grandmother’s care.
DCFS described Shane, Justin, David, and Liam as “special
needs children.” Justin was diagnosed with developmental delay
and was a client of the Harbor Regional Center. Mother’s
youngest child, T., was born during the dependency proceedings.
In September 2017, T. lived with her father.
1. DCFS files a supplemental petition with allegations
solely against Grandmother
On July 18, 2017, DCFS filed a supplemental petition.
Section 387 provides in pertinent part: “An order changing or
modifying a previous order by removing a child from the physical
custody of a parent, guardian, relative, or friend and directing
placement in a foster home, or commitment to a private or county
institution, shall be made only after noticed hearing upon a
supplemental petition.” (§ 387, subd. (a).) At that time, Justin
was four years old, David was three years old, and Liam was
one year old. DCFS alleged Grandmother physically abused
Justin “by striking the child’s arms with a ruler, inflicting bruises
to the child’s arms.” (Bold omitted.) DCFS further alleged that
Grandmother’s physical abuse of Justin placed David and Liam
at risk of physical abuse.
The juvenile court ordered Grandmother’s visits to be
monitored. DCFS removed the Children from Grandmother’s
home and placed Justin with a paternal cousin, David in the
home of his paternal grandparents, and Liam in his father’s care.
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2. Grandmother requests de facto parent status for
Justin, David, and Liam
On September 19, 2017, before the juvenile court
adjudicated the supplemental petition, Grandmother requested
de facto parent status over Justin and David. She indicated that
“[o]ther than when they are attending school, virtually all of the
children’s waking hours are spent with me.” Grandmother later
requested de facto parent status over Liam.
The juvenile court (Referee Sherri Sobel) denied
Grandmother’s de facto parent request for Justin, David, and
Liam. The juvenile court stated, “I don’t believe that she
qualifies for de facto status. I will not grant that de facto status.”
3. DCFS reports regarding the supplemental petition
DCFS reported that Grandmother attended weekly visits at
the Children’s Institute to address behavior management and
skill building. The goal of the weekly sessions was to assist
Grandmother in coping with challenges of raising children with
special needs. Grandmother had some difficulty “ ‘manag[ing]
the [Children’s] intense behaviors.’ ” A family friend reported
that after Justin was placed in Grandmother’s home,
Grandmother experienced more difficulty because Justin “had
more needs and requires more attention.” The family friend
observed no signs that Grandmother abused the Children.
Justin’s paternal relative (who cared for Justin before
DCFS placed him in Grandmother’s custody), gave a social
worker a photograph of Justin with bruises on his back and
redness in his anal region. The photograph does not show
bruises on Justin’s arms.
6
To determine the causes of the bruises on Justin’s back, a
nurse conducted a forensic examination of Justin at USC Medical
Center. The nurse concluded Justin was a “ ‘poor historian likely
due to young age and hyperactivity.’ ” Justin told the nurse that
“ ‘[s]he hit me with a ruler right here’ ” and pointed to his arm. A
social worker concluded that Justin was referring to
Grandmother. The forensic nurse observed redness on Justin’s
“perianal region” and Justin put his index finger into his rectum.
The nurse further observed: “ ‘Multiple non specific bruises at
various stages of healing scattered on child’s back and all
extremities. Child did not disclose history for bruises, unable to
determine the cause at this time. Some bruises may be caused by
accidental injury. Child was observed to be hyperactive and
climbing furniture in the exam room. However, cannot rule out
non-accidental trauma.’ ” The nurse also indicated: “Scabbed
abrasion on right knee. Pattern resembles an injury resulting
from skidding on a hard surface. However, no history was
obtained today; cannot determine if mark was caused by trauma
from accidental or non-accidental injury.” The nurse provided a
medication for Justin’s diaper rash.
DCFS interviewed Grandmother, who reported that Justin
has a skin disorder called dermatographism and that Justin “falls
on his back often, bumps into everything, hits and pinches
himself, causing the marks. [Grandmother] reported that the
marks on his back are due to him falling on his scooter, and the
scooter falling on him.” Grandmother denied hitting Justin with
a ruler, further stating that she did not own a ruler.
DCFS confirmed that Justin had dermatographism, but
reported that the condition does not cause him to bruise. A
doctor explained: “[D]ermatographism is [a skin disorder that
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appears] red and looks like hives and correlates with something
that was touching or rubbing against the skin.
Dermatographism does not have the blue, green, yellow or brown
coloring of bruising.”
One week after DCFS removed Justin from Grandmother’s
care, a social worker attempted to interview Justin and reported
that he “was difficult to interview due to his young age and [his]
trying to play and jump up on the beds.” Justin reported that he
had “booboos on his back” because his cousin scratched his back.
Justin also said that “the doctor punched the booboos on his
back.” Justin showed the social worker a scab on his arm and the
social worker observed no other bruises.
Justin’s caregiver (no longer Grandmother) reported using
rash cream because Justin had sensitive skin. Caregiver
reported that “Justin’s behaviors are challenging and that he is
hitting his teachers at preschool.” Caregiver stated that in
September 2017, when Justin was placed in her care, he had
no bruises on his back.
4. Juvenile court proceeding
On September 25, 2017, Grandmother appeared in
juvenile court to contest the allegations in the supplemental
petition. Counsel appeared and sought to represent
Grandmother. Counsel reported that he represented
Grandmother in another case “arising out of the identical facts,”
but that the two cases were not consolidated. 3 The other case
involved mother’s oldest child, Shane. Counsel sought de facto
3 The juvenile court had previously denied DCFS’s motion
to consolidate the two cases. Commissioner Emma Castro denied
the motion to consolidate.
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status for Grandmother and to be appointed as her counsel in the
case involving Justin as well. Minors’ counsel opposed granting
Grandmother de facto parent status. DCFS “had no problem
with [Grandmother’s] attorney being heard” but opposed “the de
facto motion.” Because Grandmother’s alleged abuse was the
subject of the section 387 hearing, she had “unclean hands” and
therefore was not entitled to de facto parent status.
The juvenile court (Referee Sherri Sobel) stated that
Grandmother was not entitled to counsel. During the same
colloquy, the juvenile court indicated that Grandmother was
“entitled to be heard,” and could “present[ ] evidence to the court
that she did not do any of the things of which she was accused.”
A few minutes later, the juvenile court told counsel he could
argue the case, but the court was “not allowing testimony.”
Ultimately, the court indicated that counsel would not be
appointed and denied Grandmother status as a de facto parent.
The juvenile court refused to hear any evidence or argument
before it decided whether to sustain the allegations in the
supplemental petition.
In piquant language, 4 the court reasoned that because the
matter was subject to a general placement order and was
“relative to relative,” DCFS had discretion to move children from
relative to relative and Grandmother had “no standing to argue.”
The juvenile court observed that it was “pushing the envelope
just a bit to allow [counsel] to simply enter a denial on her behalf,
which is appealable.” The court then invited Grandmother to
4 “Let me tell you the way it works—The way it used to
work when people actually went to law school, graduated, came
here and knew what they were doing. I’m including you in one of
those people who actually went to law school.”
9
appeal to determine whether juvenile courts would “ ‘have to
allow relatives to be heard.’ ”
The juvenile court sustained the section 387 petition and
“declare[d] these children dependents . . . .” The court stated:
“Prior placement with the maternal grandmother,
[Grandmother], is inappropriate for protection of the Children.
There are some serious allegations of physical abuse.” The court
found by clear and convincing evidence that it was not in the
Children’s “best interests” to return them to Grandmother’s
custody. The court ordered Grandmother’s visits to be monitored
and permitted her only weekly one-hour visits.
5. Appeal
Grandmother timely appealed from the orders denying her
de facto parent status. Grandmother timely appealed from the
order sustaining the section 387 petition.
6. Grandmother’s request to change a court order
While the current appeal was pending, pursuant to
section 388 5, Grandmother requested the juvenile court change
its court order sustaining the section 387 petition. As
Grandmother emphasized in her request to change a court order,
the juvenile court reached a conflicting conclusion in Shane’s
5 Section 388, subdivision (a)(1) provides in pertinent part:
“Any parent or other person having an interest in a child who is a
dependent child of the juvenile court . . . may, upon grounds of
change of circumstance or new evidence, petition the court in the
same action in which the child was found to be a dependent child
of the juvenile court . . . for a hearing to change, modify, or set
aside any order of court previously made or to terminate the
jurisdiction of the court.”
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case. In Shane’s case, the juvenile court struck the allegation of
physical abuse against Grandmother but instead, sustained the
following allegation: Grandmother “ ‘inappropriately supervised
a child [Justin] that has special needs and a delicate medical
condition that resulted [in] injury to the child. [Grandmother’s]
inability to provide appropriate attention to the child (Justin)
with special needs placed [Shane] at risk of physical harm.’ ”
Although the juvenile court (Judge Anthony A. Trendacosta)
assumed jurisdiction over Shane, it allowed him to remain in
Grandmother’s custody.
Grandmother requested unmonitored visitation of Justin
and David. Grandmother argued among other things: “Every
professional that [sic] interviewed Justin noted that he was
hyperactive and either climbing on furniture or running around.
Every professional has noted that Justin is not articulate.
However, DCFS wants the court to believe that abuse
occurred because [of] one statement provided with no context.”
Grandmother further argued that other circumstances explained
the bruises on Justin’s body.
The juvenile court (Commissioner Emma Castro) denied
Grandmother’s request to change a court order. The court noted
that with respect to Liam, it terminated jurisdiction and granted
physical custody to Liam’s father.
DISCUSSION
For the reasons discussed below, we conclude that the
juvenile court erred in denying Grandmother de facto parent
status and in denying her a hearing prior to sustaining the
11
allegations in the supplemental petition. 6 As also discussed
below, we reject respondent’s argument that Grandmother’s
appeal is moot.
A. The Juvenile Court Erred in Denying Grandmother
De Facto Parent Status
“The concept of de facto parent has been judicially created
to recognize limited rights in dependency cases for a person who
has been found by the juvenile court to have assumed, on a
day-to-day basis, the role of a parent, fulfilling the child’s
physical and psychological needs. [Citations.] The decision to
grant de facto parent status depends on an assessment of the
particular individual and the facts of the case. [Citation.] The
juvenile court applies the preponderance of the evidence standard
in making its factual findings and we review those findings for an
abuse of discretion.” (In re Leticia S. (2001) 92 Cal. App. 4th 378,
381; see In re Bryan D. (2011) 199 Cal. App. 4th 127, 141 [applying
abuse of discretion standard of review to juvenile court’s decision
denying de facto parent status]; In re Jacob E. (2004)
121 Cal. App. 4th 909, 920 [same].)
The factors courts generally consider for determining
de facto parent status include “ ‘whether (1) the child is
6 On appeal, Grandmother also argues that section 387
does not apply to a supplemental petition to move children from
one relative to other relatives as opposed to “placement in a foster
home, or commitment to a private or county institution.” (§ 387,
subd. (a).) Because we reverse the juvenile court’s sustaining of
the supplemental petition and order denying Grandmother status
as a de facto parent for the reasons set forth in our Discussion,
we do not address Grandmother’s other arguments challenging
those rulings.
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“psychologically bonded” to the adult; (2) the adult has assumed
the role of a parent on a day-to-day basis for a substantial period
of time; (3) the adult possesses information about the child
unique from other participants in the process; (4) the adult has
regularly attended juvenile court hearings; and (5) a future
proceeding may result in an order permanently foreclosing
any future contact [between the adult and the child.]’ ” (In re
Bryan D., supra, 199 Cal.App.4th at p. 141.) “De facto parent
status is ordinarily liberally granted on the theory that a court
only benefits from having all relevant information on the best
interests of the child.” (Ibid.)
Here, the juvenile court made no factual findings and
abused its discretion in denying Grandmother de facto parent
status. In September 2017, when Grandmother requested
de facto parent status, she had been involved with juvenile court
proceedings for almost a decade, since 2008. Grandmother
regularly appeared in court. The juvenile court told
Grandmother: “[Y]ou have been in front of me multiple
times . . . .”
It is undisputed that Grandmother assumed a parental role
over the Children. She demonstrated a strong commitment to
them, seeking to adopt both David and Justin (in addition to
Shane). Grandmother kept the siblings together and provided a
home for all of them. She also attended classes to learn to care
for special needs children. It is undisputed that Grandmother
cared for the Children’s day-to-day needs.
The record further suggests that the Children bonded with
Grandmother. Apparently, Justin referred to her as “mom,” and
she made sure all of David’s needs were met. Grandmother also
had relevant information such as knowledge that Justin suffered
13
from dermatographism, a condition a doctor later confirmed.
Finally, the conclusion that future proceedings could affect
Grandmother’s contact with the Children was inescapable
because that is exactly what occurred: DCFS removed the
Children from Grandmother’s care.
The undisputed facts all militate in favor of de facto parent
status. Respondent identifies no facts supporting the denial of
de facto parent status. The juvenile court identified no factual
basis for its conclusion that Grandmother was not entitled to
de facto parent status. The juvenile court failed to consider the
relevant criteria and identified no factual support for its
conclusion that Grandmother did not qualify. In short, it abused
its discretion in denying Grandmother de facto parent status.
(See In re Ashley P. (1998) 62 Cal. App. 4th 23, 27–30;
In re Vincent C. (1997) 53 Cal. App. 4th 1347, 1359.)
As previously noted, DCFS argued below (but not on
appeal), that Grandmother’s “unclean hands” deprived her of
de facto parent status at the section 387 hearing, albeit the very
subject of that hearing was whether Grandmother had “unclean
hands.”
“Once there is an adjudication that a child is within the
jurisdiction of the juvenile court because a nonparental caretaker
committed a substantial harm, such as sexual or other serious
physical abuse, which is fundamentally at odds with ‘the role of
parent,’ the perpetrator’s ‘protectible interest’ . . . is
extinguished.” (In re Kieshia E. (1993) 6 Cal. 4th 68, 78.) This
principle does not apply here because at the time Grandmother
requested de facto parent status, there had been no adjudication
that she committed physical abuse. (In re Jonique W. (1994)
26 Cal. App. 4th 685, 696–697.)
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The fact that DCFS alleged Grandmother committed
physical abuse did not warrant excluding Grandmother from
participating in a hearing in the section 387 petition. (In re
Jonique W., supra, 26 Cal.App.4th at p. 697.) The very purpose
of that hearing was to determine if Grandmother actually
inflicted physical abuse on Justin. (Ibid.) We also observe that
not even the forensic examiner could determine whether Justin’s
injuries were accidental or caused by physical abuse by
Grandmother, or, according to Justin, his cousin or his doctor.
The fact that the juvenile court struck nearly identical
allegations of abuse against Grandmother in Shane’s case
underscores why Grandmother should have been given an
opportunity to defend the allegations against her at the
section 387 hearing.
B. The Juvenile Court Failed to Follow Mandatory
Procedures to Adjudicate a Section 387
Supplemental Petition
When DCFS files a section 387 supplemental petition, a
hearing is mandatory. (Cal. Rules of Court, rule 5.565(b).)
California Rules of Court, rule 5.565 provides that at a hearing
on a supplemental petition, the juvenile court must make two
findings: “(A) The factual allegations are or are not true; and
[¶] (B) The allegation that the previous disposition has not been
effective is or is not true.” (Cal. Rules of Court, rule 5.565(e)(1).)
As our sister court explained: “[I]f the relevant ‘parent,
guardian, relative or friend’ denies the allegations of the
supplemental petition, the court must conduct a contested
hearing to resolve factual disputes and determine whether the
allegations of the petition are true.” (In re Jonique W., supra,
26 Cal.App.4th at p. 692.) A custodial relative has “standing to
15
contest a supplemental petition in the hearing . . . where the
relative’s conduct and the removal of the minor(s) from the
relative’s physical custody are at issue.” (Id. at p. 693.) A
de facto parent has rights in addition to a relative and may
“participate as a full party to the contested hearing” concerning
the de facto parent’s conduct. (Ibid.) “Although it is clear that de
facto parents do not have all the substantive rights and
preferences of legal parents or guardians, they have been
afforded procedural rights in order to ‘assert and protect their
own interest in the companionship, care, custody and
management of the child’ [citation], and to ‘ensure that all
legitimate views, evidence, and interests are considered’ by the
juvenile court in dependency proceedings.” (Ibid.)
Turning to this case, the juvenile court proceeding in which
the court sustained the supplemental section 387 petition cannot
be characterized as a contested hearing to resolve factual
disputes. The juvenile court refused to allow Grandmother to
present evidence or argument. Although her attorney attempted
to represent her, the juvenile court eschewed his efforts,
ultimately concluding Grandmother could present neither
evidence nor argument. Grandmother had no opportunity to
contest the allegations made against her. The petition “was not
subjected to even the most minimal adversarial testing.” (In re
Jonique W., supra, 26 Cal.App.4th at p. 698.)
On appeal, respondent does not counter the substance of
Grandmother’s arguments that she was a de facto parent and
should have been allowed to address the court in the section 387
hearing. Instead, respondent argues that the juvenile court’s
rulings were harmless essentially for the same reasons that it
argues the appeal is moot.
16
As set forth below in subsection C., we disagree that this
appeal is moot. To recap, the evidence adduced—without any
input from Grandmother—was far from compelling. The forensic
examiner could not determine if Justin’s bruises were accidental
or the product of physical abuse, let alone physical abuse by
Grandmother as opposed to Justin’s doctor or cousin. The fact
that nearly identical allegations against Grandmother of physical
abuse of Justin were stricken in Shane’s case supports our
conclusion that the juvenile court’s errors were not moot.
C. The Appeal is Not Moot
Two and a half years have passed since the juvenile court
sustained the petition finding Grandmother physically abused
Justin. In the context of the current appeal, Grandmother
does not seek the return of the Children to her custody.
Respondent argues that the appeal is therefore moot: “Nothing
would be different now but for the alleged error.” We disagree
because respondent ignores the potential, serious consequences of
sustained findings of physical abuse.
The sustained findings of physical abuse has ongoing
consequences for Grandmother in that her visitation was severely
restricted. The juvenile court limited her visitation with the
Children to one hour a week with a monitor. The sustained
finding could also affect her in the future. For example, in
considering whether to place a child with a relative, the court is
required to consider “[t]he good moral character of the relative
and any other adult living in the home, including whether any
individual residing in the home has a prior history of violent
criminal acts or has been responsible for acts of child abuse or
neglect.” (§ 361.3, subd. (a)(5).) Additionally, the sustained
finding of physical abuse may affect her ability to parent Shane
17
who remains in her care. DCFS’s assertions to the contrary,
these are not speculative concerns.
DISPOSITION
We reverse the juvenile court’s order sustaining the
supplemental section 387 petition. We reverse the juvenile
court’s order denying Grandmother de facto parent status over
the Children. If the Los Angeles County Department of Children
and Family Services files another section 387 supplemental
petition containing allegations against Grandmother,
Grandmother shall be allowed to appear at a contested hearing
with court-appointed counsel and to present any relevant
evidence.
CERTIFIED FOR PUBLICATION.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, 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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