Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court for Los Angeles County, Super. Ct. No. CK69283, Stephen Marpet, Referee.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
Y.T. (father), father of minor S.T. (minor), appeals from the disposition order of the juvenile court. He contends the juvenile court referee erred by denying his discovery motion made at the start of the adjudication hearing, violating his due process rights. He also contends the juvenile court improperly denied his application for rehearing following the referee’s adverse findings. We find no error from the denial of the discovery motion, but reverse the disposition order and remand for a rehearing before a juvenile court judge on the issue of visitation.
BACKGROUND
In light of the issues father raises on appeal, the underlying facts of the dependency case are for the most part irrelevant here. Suffice to say that the Los Angeles Department of Children and Family Services (the Department) filed a petition in July 2007 under Welfare and Institutions Code section 300 alleging that father’s (and the mother’s) conduct endangered the well-being of the minor. The matter was assigned to a juvenile court referee. The minor was ordered detained in shelter care, and, following a pretrial resolution conference, the matter was set for adjudication on October 23, 2007.
The mother is not a party to this appeal.
Father was represented by appointed counsel at the detention hearing and pretrial conference. On September 25, 2007, two weeks after the pretrial conference, father submitted a substitution of attorney, substituting in retained counsel. At the start of the adjudication hearing a month later, father’s new attorney informed the referee that he wanted to make a motion. The referee told the attorney that motions needed to be in writing, but the attorney argued that, under the California Rules of Court, his motion could be made orally because it was a discovery motion. He told the referee that he had made a discovery request, and received 29 pages of information in response, but he knew there were other documents that “are still out there” that he has not received because those documents were quoted in the “P.R.C. report.” He asked that the petition be dismissed with respect to father due to the Department’s failure to comply with his discovery request.
Counsel for the Department noted that father’s informal discovery request was made 12 days earlier in a letter sent to all counsel. She said that she gave counsel all the documents in her possession other than the “Title 20’s” (which she was going to give him as soon as she made copies), and that she had not been informed by the Department that it had any other documents responsive to the request. She also noted that father had requested documents that he was not entitled to under the discovery rules, although he could have subpoenaed them from other sources.
The referee denied father’s motion, finding his request was untimely and that, even if it had been timely, father could have obtained the requested documents from other sources. Moving on to the adjudication, the Department offered into evidence the detention and jurisdiction reports, with all of their attachments. Father’s attorney objected to admitting the reports with attachments without having the attachments identified, arguing that he was not sure that the attachments he had were the same as the attachments being admitted. The referee told the attorney that he should have checked with the Department’s counsel beforehand to make sure he had all the attachments, and overruled the objection.
The adjudication proceeded with testimony from the minor. Father submitted on the minor’s testimony. The referee sustained the petition as amended and ordered that the care, custody, and control of the minor be taken from his parents. Over father’s objection, the referee proceeded with the disposition hearing. However, because the Evidence Code section 730 evaluation of the family had not yet been completed, the referee explained that any orders made at that time might need to be changed after the section 730 evaluation report was submitted. After some discussion, the court issued a temporary order releasing the minor to his mother, with monitored visitation for father.
At the continued disposition hearing, on January 18, 2008, the Department moved into evidence the section 730 evaluation report. Father (now represented by a new appointed lawyer) submitted evidence, including a letter from his therapist, to support his argument that his visitation should be unmonitored. The referee ordered that the minor would remain with his mother, and father’s visitation would remain monitored.
The Department requested that we take judicial notice of a minute order entered on June 16, 2008, after father’s notice of appeal was filed, reflecting that father was currently allowed unmonitored visitation. We granted the Department’s request.
On January 24, 2008, father filed an application for rehearing under Welfare and Institutions Code section 252 (section 252), asking the juvenile court to rehear the disposition proceeding heard by the referee on January 18, 2008. On February 14, 2008, Judge Jan G. Levine issued an order purporting to deny the application and wrote on the order: “Court did not have case file until 2/13/08.” On March 17, 2008, father filed a notice of appeal from the January 18, 2008 disposition order.
The Department contends the application was filed on January 25, 2008, citing a minute order directing the court reporter to prepare a transcript of the January 18, 2008 proceeding. The application, however, is file-stamped January 24, 2008.
DISCUSSION
A. Denial of Discovery Motion
Father contends that the referee’s denial of his discovery motion was reversible error because he “was prevented from fully participating in his son’s jurisdictional hearing” by the Department’s failure to comply with his discovery request. This contention fails, however, because the record is inadequate to demonstrate any error.
Under California Rules of Court, rule 5.546 (rule 5.546), the Department is obligated to disclose to the child, parent, or guardian all police reports relating to the dependency matter and any evidence or information in the Department’s possession or control that is favorable to the child, parent, or guardian. (Rule 5.546(b), (c).) In addition, the Department must disclose certain other material or information in its possession or control, upon “timely request.” (Rule 5.546(d).) In this case, father argues that he made a timely request for discovery 12 days before the jurisdictional hearing, and he did not receive from the Department all of the documents or information he requested. But the record on appeal does not disclose which documents or information he requested but did not receive. Thus, we cannot determine whether father was entitled to those documents or information, or whether the Department complied with its obligations under the rule 5.546.
In challenging a ruling on appeal, the appellant “must affirmatively show error by an adequate record. [Citations.] Error is never presumed. It is incumbent on the [appellant] to make it affirmatively appear that error was committed by the trial court.” (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) Because the record in this case in inadequate to affirmatively show that the referee erred by denying father’s motion, the ruling is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)
B. Denial of Application for Rehearing
Father also contends on appeal that the referee’s dispositional order and all subsequent orders are jurisdictionally defective because the juvenile court’s denial of his application for rehearing under section 252 was not timely. While he is correct that the juvenile court’s denial of his application was not timely, and therefore rehearing is granted by operation of law, the referee’s subsequent orders are not necessarily defective.
Section 252 provides in relevant part: “At any time prior to the expiration of 10 days after service of a written copy of the order and findings of a referee, a minor or his or her parent . . . may apply to the juvenile court for a rehearing. That application may be directed to all or to any specified part of the order or findings, and shall contain a statement of the reasons the rehearing is requested. . . . If an application for rehearing is not granted, denied, or extended within 20 days following the date of its receipt, it shall be deemed granted.” The statute allows the court to extend the 20-day time limit for good cause, for up to 25 additional days. (§ 252.)
The Department concedes in its respondent’s brief that the juvenile court did not rule on appellant’s application for rehearing of the January 18, 2008 disposition order within 20 days, as required by section 252. Nevertheless, it argues that the juvenile court’s untimely denial of the application is “statutorily acceptable” because it was made within the outside time limit of 45 days. The Department is incorrect. The Supreme Court has made clear that an application for rehearing that is not acted upon within 20 days is deemed to have been granted by operation of law. (In re Danny T. (1978) 22 Cal.3d 918, 922.) In In re Danny T., a minor in a juvenile delinquency proceeding filed a timely application for rehearing of a jurisdiction and disposition order. The juvenile court denied the application 23 days later. No order extending time was ever filed. (Id. at p. 920.) Pointing to the plain language of section 252, the Supreme Court rejected the argument that the juvenile court’s tardy denial constituted an “implied” order extending time, because an order extending time must be made during the 20 day period and must state the reasons for the extension. (Id. at pp. 921-922.)
Because the order denying father’s application in this case was not made until 21 days after the application was filed, and no order extending the time to act was made, the application was deemed granted by operation of law. Father is entitled to a de novo hearing before a juvenile court judge on the issue of visitation. This does not mean, however, that all subsequent orders made by the referee must be vacated as jurisdictionally defective, as father contends.
We note that father’s application also sought rehearing on the sustaining of the charge that he emotionally abused his son. But that charge was sustained in the jurisdictional order filed on October 23, 2007, and the application for rehearing at issue here relates to the disposition hearing held on January 18, 2008. At the start of that hearing, the referee stated that it was “a contested dispo on the issue of visitation.” Father’s counsel agreed with the referee’s statement, and the only issue addressed was whether father’s visitation should be monitored or unmonitored.
Father’s reliance on In re Damon C. (1976) 16 Cal.3d 493 (Damon), in support of his contention is misplaced. In that case, the minor in a delinquency proceeding sought rehearing of the referee’s determination sustaining the allegations of a Welfare and Institutions Code section 602 petition and declaring him subject to the jurisdiction of the court. (Id. at pp. 495-496.) After reviewing a partial transcript of the proceedings before the referee, the juvenile court judge adopted the referee’s findings as those of the court and denied a rehearing. (Id. at p. 496.) Several weeks later, the judge conducted the dispositional hearing and ordered the minor committed to the California Youth Authority. (Ibid.) The Supreme Court reversed, concluding that the judge did not have sufficient information to adopt the referee’s finding of the jurisdictional fact because the transcript did not include the argument of the minor’s counsel. (Id. at p. 497.) The court concluded, “[b]ecause the finding was not effectively made by a judge but was made instead by a referee authorized to exercise only ‘subordinate judicial duties’ it is jurisdictionally defective.” (Id. at p. 498.)
Although in Damon, supra, 16 Cal.3d 493, all subsequent orders were “jurisdictionally defective,” that is not the case here. In Damon, the subsequent orders were defective because there was no effective finding of jurisdiction by the juvenile court. In this case, however, the referee’s finding of jurisdiction became final when father did not file an application for rehearing from the October 23, 2007 jurisdictional order within 10 days after service of the order. (Welf. & Inst. Code, § 250.) Moreover, the granting of rehearing of the January 18, 2008 referee’s order did render that order, or any subsequent order, ineffective.
An application for rehearing of an order under section 252 does not constitute a challenge generally to the referee’s authority to make orders or findings; it simply seeks rehearing of all or part of a specific order. If rehearing is granted, the order does not become a nullity. Instead, the referee’s order “continue[s] in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court.” (Welf. & Inst. Code, § 250; see also Ricardo V. v. Superior Court (2007) 147 Cal.App.4th 419, 422 [referee’s reviewable order given effect until matter is actually reheard].) If, after a de novo hearing the juvenile court judge does not vacate or modify the referee’s dispositional order, all subsequent proceedings are unaffected. If, on the other hand, the judge vacates or modifies the referee’s order, it is possible that the judge’s new order may affect subsequent orders. If that is the case, those orders may have to be set aside or modified.
DISPOSITION
The order denying father’s discovery motion is affirmed. The order denying father’s application for rehearing of the January 18, 2008 order is reversed. The juvenile court is directed to conduct a hearing de novo on the issue of visitation.
We concur: EPSTEIN, P. J. SUZUKAWA, J.