C.C. v. Superior Court

Opinion

FYBEL, J.

In this juvenile dependency matter, the mother of dependents William B. and Noah B. petitions for relief from the order accepting a peremptory challenge to Judge James Patrick Marion on remand after his dispositional order was reversed on appeal. (Code Civ. Proc., § 170.3, subd. (d).) She also requests a stay of the hearing under Welfare and Institutions Code section 366.26, set for November 4, 2008, in a courtroom other than that of Judge Marion. Because the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to Judge Marion. Our decision renders the stay request moot.

This court filed an opinion that reversed Judge Marion’s order granting reunification services to the mother at the disposition hearing and remanded to the juvenile court “with directions to enter a new order denying reunification services to the mother and to set a permanent plan selection hearing under [Welfare and Institutions Code] section 366.26 as soon as practicable.”

(In re William B.

(2008) 163 Cal.App.4th 1220, 1231 [78 Cal.Rptr.3d 91].)

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The opinion held the juvenile court erred in ordering reunification services to the mother based on the children’s bond with her, notwithstanding its option to bypass them under Welfare and Institutions Code section 361.5, subdivision (b), and notwithstanding its finding that there was no realistic possibility of reunification.

(In re William B.,

supra, 163 Cal.App.4th at pp. 1227-1229.) On remand, William’s new counsel filed a peremptory challenge to Judge Marion under Code of Civil Procedure section 170.6. Judge Marion accepted

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the challenge. William’s sibling, Noah, had separate counsel on remand; he did not file a challenge to Judge Marion. Judge Marion recused himself on Noah’s case, however, to keep the siblings’ cases together.

Code of Civil Procedure section 170.6, subdivision (a)(2) allows a peremptory challenge to be made “following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter. . . .” The mother contends the directions to enter a new order denying reunification services and to set a permanent plan selection hearing do not constitute “a new trial on the matter” within the meaning of the section. We agree.