IN RE: JESSICA F. (1992)

OPINION

Mother appeals from the order terminating her parental rights contending the commissioner was without authority to hear and determine the matter and that the commissioner relied on stale information in terminating her parental rights.

FACTS

The minor, Jessica F., born June 18, 1986, was made a dependent of the juvenile court on April 11, 1990.   At the same time the juvenile court determined that reunification services need not be provided to mother and additionally terminated the visitation between mother and the minor.   In an earlier opinion, this court affirmed the judgment of dependency and the order refusing to provide reunification services.

A hearing to consider termination of mother's parental rights pursuant to Welfare and Institutions Code 1 section 366.26 ² was scheduled for July 13, 1990, and, after various continuances, was actually commenced on November 30, 1990.

At the hearing, respondent, Department of Public Social Services, submitted the social worker's report dated July 13, 1990, prepared in anticipation of the 366.26 hearing.   In the report, the social worker recommended adoption as the permanent plan.   An adoption assessment report attached to the social worker's report indicated that the minor was appropriate for adoption planning and that minor's foster parents, the mother's cousin and his wife, with whom the minor has lived since March 5, 1987, desired to adopt the minor.

Mother presented evidence from her therapist who testified that she had observed a positive relationship between mother and the minor at visits occurring between November 1989 to March 1990 and in her opinion, if continued visitation between mother and the minor had been allowed after March of 1990, the relationship would have remained positive.   If minor had been allowed to know who her mother was, the relationship would have been enhanced.   The therapist also noted however that if friction continued between the mother and the minor's caretakers then continued visitation between mother and the minor would not be in the minor's best interest.

A psychologist called by mother testified that mother had made significant changes since last seen by the psychologist in 1989.   The psychologist stated that in her opinion the mother did not pose a risk to the minor.

At the conclusion of the hearing, the court found that the minor was adoptable and that a sufficient basis for termination of mother's parental rights existed based on prior findings made at the dispositional hearing and that termination of the parental rights would not be detrimental to the minor.

COMMISSIONER'S AUTHORITY

Before addressing the merits of the order terminating the mother's parental rights, we must determine if the commissioner had the authority to hear and determine the issues.   It is undisputed that although mother had stipulated to the commissioner as temporary judge for all prior proceedings, mother did not execute a written stipulation and specifically refused to stipulate to the commissioner conducting the 366.26 hearing.   When the commissioner concluded that the prior stipulation applied to the 366.26 hearing, mother filed an affidavit of prejudice pursuant to Code of Civil Procedure section 170.6.  Judge James Edwards concluded that the affidavit was untimely and referred the matter back to the commissioner.   The 366.26 hearing was thereafter conducted by the commissioner without a written stipulation by mother and over mother's objection.

California Constitution, article VI, section 21 provides “On stipulation of the parties litigant the court may order a cause to be tried by a temporary judge who is a member of the State Bar, sworn and empowered to act until final determination of the cause.”   At issue in this case is the meaning of the word “cause” and whether a section 366.26 hearing is a separate “cause” requiring a new stipulation or whether it is “a part of or a continuation of the stipulated cause” (McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, 1338, 273 Cal.Rptr. 250) such that a new stipulation is not required.

The contention that “cause” is to be defined broadly to include all phases of the underlying action was rejected in Sarracino v. Superior Court (1974) 13 Cal.3d 1, 118 Cal.Rptr. 21, 529 P.2d 53.  “This argument erroneously attributes an overbroad meaning to the word ‘cause.’   A cause is the proceeding before the court․  [¶] [T]emporary judges may be appointed to hear causes connected with but distinct from the underlying principal case.  [Citations.]   The appointment of a temporary judge to hear a particular ‘cause’ carries with it the power to act until the final determination of that proceeding.  [Citation.]   Such appointment does not, however, authorize the temporary judge to act in distinct proceedings, albeit ancillary to the same principal action, without being appointed and qualified for that purpose.   Thus, in the present case the commissioner's power as temporary judge to render the temporary support orders against petitioner would not include a power to hold petitioner in contempt for noncompliance with those orders.  [Citation.]”  (Id., at pp. 9–10, 118 Cal.Rptr. 21, 529 P.2d 53, original emphasis.)

This distinction between ancillary proceedings and “direct progeny” of the stipulated cause was further discussed in Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 201 Cal.Rptr. 194.  “[T]he case law distinguishes between two types of proceedings.   On the one hand are proceedings which are termed ‘ancillary.’   These are proceedings ‘heard and determined upon a record of [their] own ․ [proceedings for] a separate judgment independent of the final judgment in the underlying proceeding.’  (Nierenberg v. Superior Court, [ (1976) ] supra, 59 Cal.App.3d 611 at p. 618 [130 Cal.Rptr. 847];  Sarracino, supra, 13 Cal.3d 1, 9 [118 Cal.Rptr. 21, 529 P.2d 53].)  Typical of an ancillary proceeding is a hearing on contempt (Nierenberg, supra;  In re Plotkin, [ (1976) ] supra, 54 Cal.App.3d 1014 [127 Cal.Rptr. 190] );  the parties to such a hearing differ from those to the underlying action and the judgment of contempt is independent of any judgment rendered in the earlier action.  [¶]  Ancillary proceedings are not a continuation of the stipulated cause, and the temporary judge has no power to hear them absent a new stipulation.  [¶]  To be contrasted with ancillary proceedings are proceedings which are a part or continuation of the stipulated cause, or which question the finality of the temporary judge's determination of that cause.   The stipulation empowering the temporary judge to determine a given cause also empowers that judge to determine such direct progeny of that cause.   (Anderson v. Bledsoe (1934) 139 Cal.App. 650 [34 P.2d 760]․)”  (Id., 153 Cal.App.3d 1074, at p. 1095, 201 Cal.Rptr. 194.)

Accordingly, the court in Reisman concluded that a motion to vacate a default judgment was a direct progeny or continuation of the prior proceeding at which the temporary judge had entered the default judgment.   Similarly a motion to reconsider an earlier ruling is a direct progeny of the earlier proceeding conducted by the temporary judge and does not require a new stipulation.  (McCartney v. Superior Court, supra, 223 Cal.App.3d 1334, 1339, 273 Cal.Rptr. 250.)  “[T]he record of the underlying proceeding is necessarily a part of the motion to reconsider.   There is no ‘separate judgment independent of the final judgment in the underlying proceeding.’ ”   (Id., at p. 1339, 273 Cal.Rptr. 250.)

On the other hand, a contempt hearing, even though it arises out of or relates to the stipulated cause, has been considered an ancillary proceeding for which a new stipulation is required.   Thus, in In re Wales (1957) 153 Cal.App.2d 117, 315 P.2d 433, an order of contempt entered by a temporary judge was declared null and void because of the absence of the parties' consent or stipulation to the temporary judge.   This was true notwithstanding that the parties previously had stipulated to the temporary judge hearing other contempt proceedings in the same case and even though the contempt proceeding involved the failure of petitioner to obey orders previously made by the temporary judge.  (Id., at p. 119, 315 P.2d 433.)

In determining whether a section 366.26 hearing is a distinct or ancillary proceeding we are mindful that “precedent requires us to construe the power of temporary judges narrowly, so as to enforce the temporary nature of that power.”  (Reisman v. Shahverdian, supra, 153 Cal.App.3d 1074, 1096, 201 Cal.Rptr. 194.)   Here we conclude the section 366.26 hearing is an ancillary proceeding which required a new stipulation by the parties before the commissioner was empowered to act as a temporary judge.

The parties previously had stipulated to the commissioner determining whether there was a basis for the court to assume jurisdiction and declare the child a dependent of the court and determining the proper disposition of the matter, i.e., whether the child should be removed from the mother's custody, where the child should be placed and what, if any, reunification services should be provided.   The decision of the temporary judge resulted in an appealable judgment and the proceeding was concluded by this court's affirmance of the judgment of dependency.

The section 366.26 hearing involves issues distinct from the judgment of dependency.   While it arises out of and results from the prior proceedings, and thus to that extent is dependent upon earlier proceedings, it does not involve a review, attack or attempt to change the court's earlier findings.   The purpose of the section 366.26 proceeding rather is to determine whether a parent's rights should be terminated or whether some alternative long-term plan such as guardianship or long-term foster care is more appropriate.   While the statute allows the juvenile court to rely on findings made at earlier proceedings to provide a basis for termination of parental rights,³ it further provides that the court's earlier findings will not suffice as basis for termination if the court determines that termination of the parental rights would be detrimental to the child because, for example, “[t]he parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.”  (§ 366.26, subd. (c)(1)(A).)   If the court orders termination of the parents' rights, its decision is based on a separate record and results in a separate appealable judgment or order.  (§ 366.26, subd. (h).)

Respondent's argument against requiring a new stipulation for the section 366.26 hearing is in essence that the temporary judge, the commissioner in this case, is the one most familiar with the history of the dependency matter.   We agree that in this case the commissioner in fact conducted every prior proceeding in the case and thus is the one most familiar with the history of the case.   However, the temporary judge's authority with respect to the earlier proceedings was derived solely from the parties' numerous stipulations throughout the case and not because the entire dependency case is one “cause.”   Thus his familiarity with the history of the case is not relevant to the question of whether the present proceeding was a distinct cause or merely a continuation of the stipulated cause.   Because the section 366.26 hearing involves different issues, is based on a different record and results in a separate appealable judgment or order, we conclude that it is a separate cause within the meaning of section 21, article VI of the California Constitution.⁴

Here mother did not stipulate to the commissioner as temporary judge for purposes of the section 366.26 proceeding.   Accordingly the commissioner was without jurisdiction and his order terminating her parental rights therefore is void.  (People v. Tijerina (1969) 1 Cal.3d 41, 49, 81 Cal.Rptr. 264.)⁵

DISPOSITION

The order terminating parental rights is reversed.

FOOTNOTES

FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

2.   For minors declared dependents of the juvenile court on or after January 1, 1989, if the court, acting pursuant to section 361.5, subdivision (b), orders that reunification services need not be provided, the court is required to conduct a hearing pursuant to section 366.26 within 120 days after the dispositional hearing.  (§ 361.5, subd. (f).)

3.   The section provides that “the findings pursuant to subdivision (b) of Section 361.5 that reunification services shall not be offered, or the findings pursuant to subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness, or pursuant to Section 366.21 or Section 366.22 that a minor cannot or should not be returned to his or her parent or guardian, shall then constitute a sufficient basis for termination of parental rights․” (§ 366.26, subd. (c)(1).)   Findings under section 361.5 are made at the time the minor is originally removed from the parents' custody while the findings under sections 366.21 or 366.22 are made at subsequent review hearings.

4.   At oral argument, respondent requested this court to clarify which other hearings in a juvenile dependency action will require new stipulations and/or to strictly limit our holding in this case to the facts of this case, i.e., to only require a new stipulation when the 366.26 hearing is held within 120 days after the dispositional hearing as required by section 361.5, subdivision (f).   We reject the first request as we are not in the business of providing advisory opinions.   With respect to limiting our opinion to the facts of this case, even though respondent failed to provide any persuasive reason for not requiring a new stipulation for any other 366.26 hearing, our decision in this case, as is true with any appellate decision, is obviously based on the record before us.   We express no opinion as to whether we would reach a different conclusion on a different record.

5.   Because we determined that a new stipulation was required, we need not determine whether the affidavit under Code of Civil Procedure section 170.6 was timely.   We do, however, reject respondent's contention that if a new stipulation is required “[i]nclusion of commissioners within CCP § 170.6 would be senseless ․ since a simple refusal to stipulate would avoid the consequences of the limitations of disqualification contained within CCP § 170.6.”   Commissioners are empowered to perform a variety of subordinate judicial duties for which the stipulation or consent of the parties is not required.  (Code Civ.Proc., § 259.)   To the extent these subordinate judicial duties involve a “contested issue of law or fact,” under Code of Civil Procedure section 170.6 that section remains a viable means for removing the commissioner from the proceeding.

HOLLENHORST, Associate Justice.

RAMIREZ, P.J., and McKINSTER, J., concur.