Julie W. v. Superior Court

Filed 9/4/07 Julie W. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Robert B. Hutson, Judge. Petition granted.

Law Offices of Arthur J. LaCilento and Arthur J. LaCilento for Petitioner.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.

Law Office of Harold LaFlamme and Linda M. ONeil for the Minors.

FACTS

Julie Ann W. and her brother, Danny, were removed from their parents custody in October 2006, and a dependency petition was filed on their behalf. A contested jurisdiction hearing was held over 21 court days, from November 17 to December 29, 2006. The children were adjudicated dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) (failure to protect). Before the disposition hearing was held, the attorney for the mother, Julie W., was granted leave to withdraw, and Arthur LaCilento was substituted in his place. The court indicated it would consider the testimony thats been given in the lengthy [jurisdiction] hearing in deciding disposition. And if there is a need for any additional testimony as to disposition, the court will hear it if its required.

In order to prepare for the contested disposition hearing, LaCilento requested copies of the reporters transcripts for the jurisdiction hearing at the courts expense. Although he was privately retained by the mother, [t]here is no way my client can afford that right now. LaCilento took a very limited retainer in this case to try to assist my client. He stated if the transcripts were not provided to him, he would withdraw so the mother could receive an appointed attorney who has access to the transcripts so as to be adequately prepared for trial . . . .

The mother submitted a formal request for the transcripts, attaching an income and expense declaration and her declaration which demonstrated indigency. The juvenile court, however, denied her request. The mother filed this petition for a writ of mandate, seeking relief from the order and requesting a stay of the disposition hearing. We issued a stay and requested informal briefing from the real parties in interest. In response to our request, Orange County Social Services Agency and the minors joined in the mothers request for the transcripts and asked for an expeditious resolution of the problem so the disposition hearing can proceed.

DISCUSSION

All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel. (Welf. & Inst. Code,  317.5, subd. (a).) The juvenile court has the authority to appoint counsel for an indigent parent in dependency proceedings. (Welf. & Inst. Code,  317, subd. (a)(1).) The mothers counsel must have access to the jurisdiction hearing transcripts in order to represent her competently at the disposition hearing. Although the mother has found the resources to pay for retained counsel, she does not have additional resources to pay for the transcripts. A fortiori, the juvenile court has the authority to furnish necessary transcripts to an indigent parent who is represented by private counsel. Fundamental fairness requires that the mother receive the transcripts in this case.

As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the real parties in interest have joined in the petitioners request for relief, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance. (Code Civ. Proc.,  1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the petitioner included a request for peremptory relief in her prayer. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

DISPOSITION

Let a peremptory writ of mandate issue (1) directing the juvenile court to vacate its order denying the request for the reporters transcripts of the jurisdiction hearing and issue an order granting the request and (2) directing the juvenile court to continue the disposition hearing to a date that allows time for the preparation of the transcripts and their review by the mothers counsel. The temporary stay is dissolved. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

IKOLA, J.

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