Opinion
D054216
7-15-2009
In re LISA P., a Person Coming Under the Juvenile Court Law. IMPERIAL COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Appellant, v. LISA S., Defendant and Respondent.
Not to be Published in Official Reports
The Imperial County Department of Social Services appeals orders granting a minors request to speak privately with the court and minors counsel over its objection, and denying its motion to reconsider the courts earlier ruling. We affirm.
INTRODUCTION
This appeal concerns a dependent minors request to speak privately to the juvenile court after the conclusion of a special hearing. The court found the proposed meeting was not an ex parte communication and granted the request over county counsels objection. The court met with the minor and minors counsel in chambers. No transcript of the meeting was recorded.
Canon 3, subdivision (B) of the Code of Judicial Ethics prohibits the court, including the juvenile court, from initiating, permitting or considering ex parte communications unless a specific exception applies. Although stated legislative policy encourages the juvenile court to promote communication with, and the participation of, a dependent minor in hearings and the minor has the statutory right to attend court hearings and speak to the judge, we conclude there are no express authorizations that allow the juvenile court to initiate or consider an ex parte communication by the dependent minor, absent stipulation or the informed consent of all parties.
Although we conclude the court erred when it ruled the proposed communication with the minor was not an ex parte communication, the appellant does not show prejudice, actual misconduct or judicial bias, and reversal is not required.
FACTUAL AND PROCEDURAL BACKGROUND
Lisa P. was born in November 1992. In November 2006 Lisa and her four younger siblings (together, the children) were adjudicated dependents of the juvenile court under Welfare and Institutions Code section 300. (Statutory references are to the Welf. and Inst. Code unless otherwise specified.) Lisa was separated from her siblings during most of the proceedings. In April 2008, after an extended reunification period, the children were returned to their mothers custody under continued court supervision.
In August 2008 Lisa S., the childrens mother (Mother), relapsed on methamphetamine. When the Imperial County Department of Social Services (the Department) tried to detain the children in protective custody, Lisa P. ran away from a social worker. This was not the first time she had run away from placement. The court issued a protective bench warrant to take her into custody. Lisa voluntarily returned on October 14, 2008.
Lisa filed a motion to recall the protective custody warrant and requested that she and her siblings be placed together. On October 1, 2008, the court held a hearing on her motion (October 1 hearing). Mother was not present. The court asked the Department about its efforts to find a placement for the children. County counsel informed the court the social worker was trying to place the children together.
The court asked Lisa how she was doing, whether she was okay, where she had stayed, whether she had slept in the park or stayed with friends and how she returned to the receiving home. Lisa was minimally responsive.
County counsel interrupted the courts colloquy with Lisa to bring several procedural issues to the courts attention. After a brief discussion the court recalled the protective warrant, reaffirmed the removal orders and placement authorizations made by the court at the previous hearing as to Lisa (in her absence), and directed the Department to make efforts to place the children together, if possible.
County counsel raised a scheduling issue, which the court resolved. Minors counsel then asked, "Your Honor [¶] . . . [¶] I dont know if this is proper or not, but my client, Lisa, wishes to speak to you in private, if thats okay with the court." The court responded, "Sure." County counsel objected, and stated Lisa was a party in the case and the court could speak to her only with all counsel present.
The court stated it had oversight authority over the Department and had the authority and duty to speak to participants in dependency cases, including parents, children and social workers. The court did not know what Lisa wanted to say. County counsel stated, "I have no idea either, Your Honor." Minors counsel said he did not know what his client intended to say. Mothers attorney did not object or consent to the proposed meeting.
The court stated there was no matter currently pending before it. If the discussion involved anything inappropriate the court would direct counsel to file a noticed motion. It would not make any orders because the other parties could not respond. The court advised county counsel the Department could bring a writ or file points and authorities to convince the court to change its opinion, "but as of right now" the court would hear what Lisa had to say. The judge, minors counsel and Lisa retired to chambers. The conversation was not reported.
In November 2008 county counsel filed a motion for reconsideration, along with a "Memorandum of Points and Authorities in Support of Motion for Reconsideration of the Juvenile Courts October 1, 2008, Findings and Order" (the motion or motion for reconsideration). A hearing on the motion was held on December 1.
The court reviewed the motion and noted that no opposition had been filed. The court stated an ex parte communication was defined as "matters on the merits and pending." At the time it met with Lisa the court had ruled on the matter before it, and there was no other matter pending before the court.
County counsel asserted that, unlike civil cases, dependency cases are always pending. He argued because of the broad scope of issues addressed at dependency proceedings, any private communications between the court and the parties are on the merits of the pending case.
The court found its decision to meet with Lisa could not be set aside. The court further found the California Rules of Court (further rule references are to the Cal. Rules of Court) applied and that the court and county counsel had disagreed on the application of the rules at the October 1 hearing. For the record the court stated the subject discussed with Lisa in chambers was not on the merits of the matter. Lisa said she was embarrassed she ran away and would try to do better. Lisa wanted to thank the court and the Department for giving her mother "many, many chances."
APPELLATE PROCEEDINGS
On January 12, 2009, the Department filed a motion to augment the record on appeal with a letter from minors counsel to the court dated October 7, 2008, apologizing for requesting the ex parte communication, explaining the events that led to the request, describing the communication between Lisa and the court, and stating that the request to meet in chambers was improper. (Rules 8.155 and 8.408.) The Department acknowledges the letter was not entered in evidence or lodged in the trial court.
Mother and Lisa oppose the Departments motion to augment.
Because counsels letter was not entered in evidence or lodged in the case in superior court, as required by rule 8.155(a), we deny the Departments motion to augment the record on appeal.
DISCUSSION
A
The Department asserts the courts ruling granting Lisas request to speak privately with the court with her counsel present, over the objection of county counsel, authorized an impermissible ex parte communication. The Department argues the dependency proceedings were ongoing and any communication went to the merits of the pending case. It contends the dependency system contains statutory provisions to allow a minor to present information and evidence to the court without resorting to ex parte communication.
Mother does not take a position on the Departments substantive arguments. She asks this court to dismiss the appeal as moot or alternatively, to affirm the judgment because the Departments motion for reconsideration was not properly before the trial court.
Lisa agrees with the Department it was improper for the court to meet with her outside the presence of all parties. Minors appellate counsel states she took this position without having talked to Lisa, whose whereabouts were unknown.
B
Mother asks us to dismiss this appeal as moot. A question becomes moot when, pending an appeal from a judgment of a trial court, events transpire that prevent the appellate court from granting any effectual relief. (Consolidated Vultee Air. Corp. v. United Automobile (1946) 27 Cal.2d 859, 863; Lester v. Lennane (2000) 84 Cal.App.4th 536, 566.) Mother asserts this court cannot provide effective relief because it is impossible to "undo" the private meeting between Lisa and the court.
We do not believe this appeal is moot. The relief sought by the appellant is not the "undoing" of the courts meeting with Lisa and her counsel but reversal of the courts ruling the private communication was permissible because it did not constitute an ex parte communication. There have been no events during the pendency of this appeal that render this matter moot. (Cf. In re A.C. (2008) 166 Cal.App.4th 146, 154-155.) Further, the Department has a substantial interest at stake in avoiding impermissible ex parte communications in Lisas dependency proceedings, as do the other parties and the court. We conclude this court can provide effective relief. (See In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1054-1055.)
Because we dispose of the case on the basis of the courts October 1, 2008 ruling, we need not consider the issues raised with respect to the Departments motion for reconsideration.
C
The issues raised on appeal concern the juvenile courts interpretation of canon 3(B) of the California Code of Judicial Ethics. The facts are not disputed. Accordingly, we are not bound by the trial courts interpretation and conduct a de novo review. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 81; see Chambers v. Kay (2002) 29 Cal.4th 142, 148 [interpretation of rule of professional conduct presents question of law subject to independent review]; see also Joseph v. San Francisco Housing Authority (2005) 127 Cal.App.4th 78, 81 ["de novo review of the meaning and application of the statutes, regulations and rules"].)
D
"All courts have inherent powers which enable them to carry out their duties and ensure the orderly administration of justice. The inherent powers of courts are derived from article VI, section 1 of the California Constitution and are not dependent on statute. [Citations.]" (In re Amber S. (1993) 15 Cal.App.4th 1260, 1264.) "These powers entitle courts to `" . . . adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council." [Citation.]" (Ibid., quoting Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813.)
The Code of Judicial Ethics, adopted by the Judicial Council, governs ex parte communications between the court and the parties and other communications made to the court outside the presence of the parties. (Cal. Code Jud. Ethics, canon 3B(7).) All members of the judiciary must comply with the Code. (Cal. Code Jud. Ethics, preamble.)
Canon 3B(7) states:
"A judge shall accord to every person who has a legal interest in a proceeding, or that persons lawyer, full right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding . . . ."
In addition, the State Bar Rules of Professional Conduct govern ex parte communications between the court and counsel. "Unless expressly authorized by law, ex parte contacts between the court and counsel are always ill-advised and violate the State Bar Rules of Professional Conduct where such contacts deal with the merits of a pending, contested matter. (Rule 7-108(B), Rules Prof. Conduct.) Moreover, unauthorized ex parte contacts of whatever nature erode public confidence in the fairness of the administration of justice, the very cement by which the system holds together." (In re Jonathan S. (1979) 88 Cal.App.3d 468, 471.)
Although precise definitions vary, the prohibition against ex parte communication is "`in essence, a rule of fairness meant to insure that all interested sides will be heard on an issue [citation]" and generally bars any ex parte communication of issues relevant to the adjudication to the court. (Mathew Zaheri Corp. v. New Motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1317 (Zaheri); Heavy v. State Bar (1976) 17 Cal.3d 553, 559.) Simply stated, an ex parte communication includes "[a] communication between counsel and the court when opposing counsel is not present." (Blacks Law Dict. (8th ed. 2004) p. 296.)
County counsel posits the nature of a dependency case is ongoing and any communication between the court and a party is an ex parte communication because the proceeding is always pending. In contrast, the juvenile court determined there was no matter currently pending before it because the court had concluded the hearing, and Lisas proposed communication was not an ex parte communication.
We do not believe the definition of an ex parte communication in the context of a dependency proceeding is necessarily as broad as county counsel posits or as narrow as the courts statements indicate. It is unnecessary to resolve the parameters of this issue here. The critical fact is that Lisa was a party to the case and the court could not hear exclusively one party without the presence of the other parties or their counsel, absent a stipulation or the parties informed consent to the proposed ex parte communication.
There are exceptions to the general standard prohibiting the court from engaging in ex parte communications. Canon B(7)(a)-(e) provides five exceptions to the general rule. As relevant here, canon B(7)(e) states: "A judge may initiate or consider any ex parte communication when expressly authorized by law to do so." In addition, there may be exceptions where other interests intervene, provided procedural safeguards (such as access to a reporters transcript) are in place. (See, e.g., Zaheri, supra, 55 Cal.App.4th at p. 1317 ["concern about personal safety could warrant ex parte communication with the tribunal"].) Further, the canon "does not prohibit a judge from initiating or considering an ex parte communication when authorized to do so by stipulation of the parties." (Advisory Com. com, Code Jud. Ethics, foll. canon 3B; but see Code Jud. Ethics, preamble [advisory comments not construed as additional rule].)
We now examine whether the juvenile court is expressly authorized by law to initiate or consider an ex parte communication with a dependent minor.
E
The juvenile court must "control all proceedings during [dependency] hearings with a view to . . . the ascertainment of all information relative to the present condition and future welfare" of the dependent minor. (§ 350, subd. (a)(1).) Except where there is a contested issue of law or fact, the proceedings are conducted in an informal, nonadversarial atmosphere. (Ibid.)
A dependent minor in foster care or considered for foster care has the right to attend court hearings and speak to the judge (§ 16001.9, subd. (a)(17)), and to "make a brief statement to the court making a decision on placement." (§ 399.) The Legislature recently stated its intent that "juvenile courts promote communication with, and the participation of, children in attendance at hearings of which they are the subject, and that children attending these hearings leave the hearing with a clear understanding of what decisions the court made and why . . . ." (Stats 2008, ch. 166, § 3); see § 349, subd. (c), eff. Jan. 1, 2009 ["If the minor is present at the hearing, the court shall allow the minor, if the minor so desires, to address the court and participate in the hearing"].)
If the minor is to testify, then section 350, subdivision (b) sets forth procedures for the minor to testify in chambers and outside the presence of his or her parents, provided certain protections are afforded the parents. (§ 350, subd. (b)(1)-(3).)
While we do not believe the minors right to address the court under sections 349, 399 or 16001.9, subdivision (a)(17) necessarily invokes testimonial procedures under section 350, subdivision (b), neither do we believe these provisions, either separately or collectively, expressly authorize a judge to initiate or consider an ex parte communication with the child. (Code Jud. Ethics, canon 3B(7)(e).)
In addition, while the juvenile courts oversight function gives it a unique position within Californias judiciary and may bring the judge (and particularly, the presiding juvenile judge) into contact with many dependency system participants, we do not believe the courts communication with Lisa was conducted as part of its oversight responsibilities. (See, generally, Cal. Stds. Jud. Admin., § 5.40, Advisory Com. com. foll. § (e)(11); Nat. Council Juv. & Fam. Court Judges, Resource Guidelines: Improving Court Practice in Child Abuse and Neglect Cases (Spring 1995) Introduction, part I(D) and Appen. C, parts I and IV <http://www.ncjrs.gov/pdffiles/resguid.pdf> (as of Jun. 12, 2009).)
Lisas request was made during a dependency hearing conducted on her behalf. Even if Lisas proposed communication had some relevance to the courts oversight authority, the record clearly shows the court did not know what Lisa wanted to say at the time it granted her request.
Although statutory provisions and explicit legislative policy encourage a minors participation in hearings conducted on the minors behalf and permit a dependent minor to talk to the judge, we have not found any relevant constitutional provision, statute, rule or decisional law that expressly authorizes a judge to initiate or consider an ex parte communication with a dependent minor. (Code Jud. Ethics, terminology ["law"], canon 3B(7)(e).)
Unless the Legislature or Judicial Council adopts a provision to the contrary, a private communication between the court and a dependent minor who is a party to the case, without a stipulation or the informed consent of all parties, is not expressly authorized by law and falls within the prohibition against ex parte communication. (Code Jud. Ethics, canon 3B(7).)
We conclude the court erred when it granted Lisas request to meet privately with the court and minors counsel in chambers over the objections of county counsel.
F
To warrant reversal, a violation of the rule prohibiting ex parte communications must be shown to be prejudicial as a miscarriage of justice or must show actual judicial misconduct (e.g., known to be in violation of the law of legal ethics) or judicial bias. (Zaheri, supra, 55 Cal.App.4th at pp. 1315, 1318.) No such finding is compelled on this record.
The Department does not claim it was prejudiced by the ex parte communication between the court and Lisa. At the time of the communication the hearing on Lisas request to recall the protective warrant and to place her with her siblings had concluded. A section 387 disposition hearing was scheduled for October 20, 2008. At that hearing the court adopted the Departments recommendations. The Department cannot show it was prejudiced by the ex parte communication.
With respect to actual misconduct or bias, the record shows the court believed the proposed communication did not constitute an ex parte communication because the instant matter had concluded and the communication fell within the juvenile courts oversight function in its unique position within Californias judiciary. Although the court defined ex parte communication too narrowly and its oversight function too casually, it accommodated the request of a teenager who had been in the dependency system for an extended period, mistrusted social workers and had a history of running away from placement. Fundamentally, the dependency system concerns the interests of the child. (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1129.) Although the better practice would have been to require an offer of proof, obtain a stipulation or the consent of the parties and make available a reported transcript of the communication, we will not harshly criticize a juvenile court judge for taking the time to listen to a dependent minor.
In view of the policy preferences afforded a dependent minor, the court did not demonstrate actual misconduct or judicial bias. Although the court erred when it determined Lisas request for a private meeting was a permissible ex parte communication and met with Lisa and her counsel without a stipulation or the informed consent of all parties, reversal is not required.
DISPOSITION
The orders are affirmed.
WE CONCUR:
NARES, Acting P. J.
IRION, J.