MANUEL C. v. Superior Court

[384]

Opinion

EPSTEIN, P. J.

—By petition for writ of mandate, father Manuel C. challenges the juvenile court’s denial of his peremptory challenge on the ground that it was untimely pursuant to Code of Civil Procedure section 170.6, subdivision (a)(2).

1

We hold that once the juvenile court terminates jurisdiction over a dependent child, a subsequent case involving the same child and parent is a new matter for purposes of the time limits for filing a section 170.6 motion. For this reason, we grant the requested relief.

FACTUAL AND PROCEDURAL SUMMARY

In January 2009, a Welfare and Institutions Code section 300 petition was filed on behalf of Aura P.’s three children: two daughters, ages 17 and 12, and one son, Manuel C., Jr., age 5. Petitioner was found to be the presumed father of Manuel C., Jr., and was thus a party to that action. The case was assigned to Referee Stephen C. Marpet for all purposes, and it remained in his courtroom until Referee Marpet terminated dependency jurisdiction as to the three children with a family law exit order on October 7, 2009. Petitioner and mother were given joint legal custody of Manuel C., Jr., with physical custody to mother and unmonitored visitation to petitioner.

On October 30, 2009, a new Welfare and Institutions Code section 300 petition was filed on behalf of the same children, alleging in part that petitioner sexually abused mother’s 12-year-old daughter. The matter was assigned the same case number as the previously terminated case involving the same children, and it was assigned to Referee Marpet.

That same day, petitioner filed his section 170.6 peremptory challenge, asking that Referee Marpet recuse himself. Referee Marpet denied the motion as untimely, explaining: “This case was assigned to me in January of 2009, and the parties made their first appearance on that date. Since more than ten days have elapsed since both of these dates, the motion is deemed untimely.” Petitioner brought this petition for writ of mandate, seeking an order directing the juvenile court to accept the section 170.6 peremptory motion for disqualification and transfer the case to another court for further proceedings. We stayed all further proceedings, and issued an order to show cause. In response, the Los Angeles County Department of Children and Family