In Re Lamonica H.
BENKE, J. —
INTRODUCTION
Referees are empowered to conduct dependency proceedings under
SUMMARY
On July 30, 1988, Kathy H. took her 10-year-old daughter Gloria W. to Sharp Hospital. Kathy thought her husband Herman had sexually molested
Because Kathy did not obey police instructions to keep Herman out of her home, on August 3, 1988, Gloria and her stepbrother Kenneth C. and her stepsisters Shannon C. and Lamonica H. were taken to Hillcrest Receiving Home.
On August 5, 1988, the San Diego County Department of Social Services (Department) filed petitions, alleging the four children came within the provisions of
A contested jurisdictional hearing was conducted on September 19, 1988, before Michael J. Imhoff, a referee. After listening to testimony from Kathy and Gloria and considering the other evidence presented, the referee found by clear and convincing evidence that the four children were persons described by
The dispositional hearings were conducted on October 14, 1988, before another referee, Yuri Hoffman. Among other matters the referee ordered that both parents comply with reunification plans proposed by the Department and submit to psychological evaluations. The parents were further ordered to release to the Department the results of their psychological evaluations and counseling.
Later on October 14, 1988, Herman filed an application for a rehearing of the matters heard by the referees. Citing In re Heather P. (1988) 203 Cal. App.3d 1214 [250 Cal. Rptr. 468], his application for a rehearing stated “I did not sign an agreement to allow the referee or temporary judge to hear the case.” His application for a rehearing was summarily denied on October 17, 1988.
Herman filed a timely notice of appeal.
ISSUES ON APPEAL
On appeal Herman argues that because no written stipulation meeting the requirements of
We find no merit in Herman‘s arguments and affirm.
DISCUSSION
I
Rule 244 Is Not Jurisdictional
A. The Requirements of Rule 244 Are Directory, Not Mandatory
“A filed oath and order, until revoked, may be used in any case in which the parties stipulate to the designated temporary judge. The stipulation shall specify the filing date of the oath and order.
“This rule does not apply to the selection of a court commissioner to act as a temporary judge.”
In this case no written stipulation permitting the referees to act as temporary judges was ever obtained. Herman‘s principal argument on appeal is that this error invalidates the proceedings conducted before the referees. Herman relies principally on the holding in In re Heather P., supra, 203 Cal. App.3d at page 1225: “In this case, the record reveals only an oral stipulation by counsel for the welfare department (apparently also acting in the minor‘s behalf) and for the mother that the attorney could sit as a temporary judge `because a regular judge was not available.’ The record is devoid of any indication of compliance with the requirement of the filing of
In re Heather P., supra, 203 Cal. App.3d 1214, and In re Damian V., supra, 197 Cal. App.3d 933, directly conflict with the holding in In re Robert S. (1988) 197 Cal. App.3d 1260, 1264 [243 Cal. Rptr. 459]: “Despite the existence of an express stipulation on the record, defendants would have us elevate the method for memorializing a stipulation set forth in rule 244(a) to the level of a constitutional prerequisite to clothing an attorney selected under that rule with the powers of a temporary judge. We decline to do so. [¶] In reaching our conclusion that the failure to comply with rule 244(a) does not void the judgment, we rely, in the first instance, on the plain language of article VI, section 21, of the California Constitution, which requires only that there be a `stipulation of the parties litigant.’ The cases interpreting the constitutional provision have rejected any requirement that the stipulation be express. [Citations.] If a valid stipulation may be implied from conduct, then, a fortiori, an express, albeit oral, stipulation to a hearing by a retired juvenile court referee acting as a judge pro tempore such as the one put on record in this case is sufficient to satisfy the constitutional requirements of article VI, section 21.” (Fn. omitted.) (See also In re P.I. (1989) 207 Cal. App.3d 316, 322 [254 Cal. Rptr. 774]; In re James G. (1990) 219 Cal. App.3d 1202 [268 Cal. Rptr. 675] review granted Aug. 23, 1990 (S016002).)
In excusing the absence of a written stipulation the court in In re Robert S., supra, 197 Cal. App.3d 1260, adopted the rationale set forth in an earlier case, People v. Oaxaca (1974) 39 Cal. App.3d 153 [114 Cal. Rptr. 178], where a defendant argued that a written stipulation was necessary to validate proceedings before a court commissioner. In Oaxaca the court found that it would be “`“intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.“‘” (Id. at p. 164.) The holding in Oaxaca itself was later cited with approval by the Supreme Court in In re Mark L. (1983) 34 Cal.3d 171, 178 [193 Cal. Rptr. 165, 666 P.2d 22].
In People v. McGee, supra, 19 Cal.3d 948, the court was asked to interpret
In the mandatory-permissive dichotomy “the term `mandatory’ refers to an obligatory [procedure] which a governmental entity is required to [follow], as opposed to a permissive [procedure] which a governmental entity
(3) There is no mechanical test for determining whether a provision should be given “mandatory” or “directory” effect. (Morris v. County of Marin, supra, 18 Cal.3d at p. 909.) Rather, “`[i]n order to determine whether a particular statutory provision ... is mandatory or directory, the court, as in all cases of statutory construction and interpretation, must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]....‘” (Id. at p. 910, quoting Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262 [175 P.2d 1], fn. omitted, italics added.)
Neither In re Damian V., supra, 197 Cal. App.3d 933, nor In re Heather P., supra, 203 Cal. App.3d 1214, provides analysis of the intent of the drafters of
(1b) The use of “shall” in
Aside from use of the word “shall,” there is nothing on the face of
More significant, however, than elimination of any reference in the Constitution to the regulations of the Judicial Council, is consideration of whose interests are protected by
“.... `There are undoubtedly many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which
(1c) Where a party to a proceeding heard by a referee has in fact expressly or impliedly agreed that the referee may sit as temporary judge pursuant to
Our conclusion
Thus even when a parent or child is unwilling to stipulate a referee may act as a temporary judge, the referee may nonetheless conduct juvenile proceedings under
In sum, then, we find the failure to meet the requirements of
B. Herman‘s Conduct Supports an Implied Stipulation
(5) Because there is no written stipulation as required by the rule, we must engage in the very task which the rule, if followed, would have obviated: a search in the record for an agreement by the parties that the referees could sit as temporary judges. As we have seen, if there was no stipulation the jurisdictional and dispositional orders were subject to de novo review by the superior court.
The parties agree no express stipulation is in the record. Rather the Department argues such an agreement may be implied from the conduct of the parties. In this regard the Department relies upon the holding in Mark in which the Supreme Court found that an agreement that a commissioner would sit as a temporary judge could be implied from the conduct of the
In In re Mark L., supra, 34 Cal.3d 171, a juvenile offender entered a negotiated plea of no contest to a burglary before a court commissioner sitting as a juvenile court referee. At the time of the plea the commissioner advised the minor that he had the right to have “the same judicial officer” who took the plea handle the disposition. Thereafter the commissioner declared the juvenile a ward of the court and released him to his parents. Later a superior court judge acting on his own motion granted a rehearing in the matter and ordered the minor committed to the California Youth Authority for 90 days. On the minor‘s petition for a writ of habeas corpus the Supreme Court found that the parties had entered a “tantamount stipulation” that the commissioner would act as a temporary judge. Thus the court held the superior court had no power to rehear the minor‘s disposition.
In finding a “tantamount stipulation” the court relied on the commissioner‘s statement the minor had the right to have the same judicial officer handle his disposition. The court found the commissioner‘s statement was a reference to People v. Arbuckle (1978) 22 Cal.3d 749 [150 Cal. Rptr. 778, 587 P.2d 220, 3 A.L.R.4th 1171], and that the People‘s failure to object at the time the Arbuckle admonition was given was tantamount to a stipulation the commissioner was acting as a temporary judge. In rejecting the respondent‘s argument that minute orders in which the commissioner identified himself as a “referee” should be given conclusive effect, the court explained the nature of a “tantamount stipulation“: “Respondent notes that in both minute orders signed by [the commissioner] (one for adjudication and one for disposition) he took some care to designate himself a `Referee’ rather than a judge. The printed-form orders also recited that he was `report[ing]’ his actions to the presiding juvenile judge. (See § 248.) On the other hand, neither party has supplied any evidence that Mark received the required written explanation of his right to seek rehearing of a referee‘s orders. (Ibid.) The uncontroverted declaration of Paul G. Sloan, Mark‘s counsel throughout, states that `[a]t no time was there any suggestion made by anyone that [the commissioner‘s] disposition would not be binding on all parties.’ (Italics added.) [¶] Under the `tantamount stipulation’ doctrine, the parties confer judicial power not because they thought in those terms; had they done so, the stipulation presumably would be express. Rather, an implied stipulation arises from the parties’ common intent that the subordinate officer hearing their case do things which, in fact, can only be done by a
Contrary to the Department‘s argument, the decision in Mark does not permit us to find a tantamount stipulation simply because Herman proceeded without objection in the jurisdictional and dispositional hearings. In proceedings under
Here we believe there are such instances, where, without objection, the referees took steps which were proper only if the parties understood the referees were acting as temporary judges. In particular we note
Here the referee at the jurisdictional hearing did not give the notice required by
Similar evidence the parties understood the referees in this case were acting as temporary judges appears in the transcript of the disposition hearings. Although the referee at the disposition hearing ordered Herman and Kathy to complete a reunification plan, participate in psychological treatment, and, over Herman‘s objection, release the results of their treatment to the Department, the referee did not give them any of the notices required by
Finally, we note the rapidity with which Herman filed his request for rehearing in the superior court and the grounds he relied upon. As we have seen, Herman‘s request was filed on the day of the dispositional hearing, October 14, 1988, cited In re Heather P., supra, 203 Cal. App.3d 1214, and stated Herman had not “signed an agreement” permitting the referee to hear the case. The timing of the request and its reliance on Heather suggest strongly Herman and his counsel knew Herman‘s consent was necessary for the referee to act as a temporary judge but nonetheless made a conscious decision to remain silent at a time when any error could have been avoided. Indeed, had Herman been unwilling to be bound by the findings of either referee and had he made his feelings known in a timely manner, one of the referees could have made arrangements for the entire matter to be heard by a superior court judge, thus avoiding the necessity for any de novo review at the trial court level. In our view, given Herman‘s and his counsel‘s obvious knowledge of Herman‘s rights, the failure to assert them in a timely manner was tantamount to a stipulation Herman‘s case could be heard by the referees sitting as temporary judges.
II
Herman‘s Right to Notice
Because we have determined the referees were in fact acting as temporary judges, their orders were final and not subject to rehearing by a superior court judge. (In re Mark L., supra, 34 Cal.3d at pp. 179-180; see also In re Edgar M. (1975) 14 Cal.3d 727, 734 [122 Cal. Rptr. 574, 537 P.2d 406]; In re Damon C. (1976) 16 Cal.3d 493, 496 [128 Cal. Rptr. 172, 546 P.2d 676].) In sum, by knowingly acquiescing in the court‘s failure to give the
III
Herman‘s Fifth Amendment Rights Were Protected
(6) Herman argues the dispositional order infringes upon his right to be free of self-incrimination because it required him to participate in psychological counseling and to release to the Department the results of such treatment. We reject Herman‘s argument.
A similar dispositional order was challenged in In re Jessica B. (1989) 207 Cal. App.3d 504 [254 Cal. Rptr. 883]. The court in Jessica found no Fifth Amendment violation because it held the results of the treatment could not be used against a father in pending criminal proceedings. “The California Constitution requires that a person proceeding simultaneously in the criminal courts for child abuse and the juvenile court regarding a dependency of the abused minor should not only be granted use immunity for his or her testimony at dependency proceedings that constitutes an admission to the acts at issue in the criminal case against him or her but also for such statements made during court-ordered therapy. Under the circumstances of this case, such an immunity is essential to the constitutional privilege against self-incrimination and facilitates the goal of protecting the best interest of the minor and achieving the reunification of the family at the earliest possible date. However, we do not suggest that the immunity bars use of statements made to the therapist if the criminal defendant puts such statements in issue through squarely inconsistent testimony at the criminal trial.” (Id. at p. 521.)
In reaching this conclusion the court in In re Jessica B., supra, 207 Cal. App.3d 504, relied upon the holding in Ramona R. v. Superior Court (1985) 37 Cal.3d 802 [210 Cal. Rptr. 204, 693 P.2d 789], where the Supreme Court held that statements by a minor at a hearing to determine her fitness to be tried as an adult could not be used in a subsequent criminal trial. The court in Ramona found such immunity was required by the Constitution because without it the minor would have been placed in the dilemma of either cooperating at the fitness hearing or protecting her right against self-incrimination. (Id. at pp. 804-805.)
Like the court in In re Jessica B., supra, 207 Cal. App.3d 504, we believe a parent ordered to participate in a reunification plan which includes
The juvenile court orders are affirmed.
Todd, Acting P.J., and Froehlich, J., concurred.