COURT OF APPEAL, STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
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In Re PERSONAS, Persons Coming Under Juvenile Court Law. SAN BERNADINO COUNTY DEPARTMENT OF CHILDREN & FAMILY SERVICES, Petitioner/Respondent , PERSONA,, Respondent/Appellants. |
Case No.: _________ NOTICE OF MOTION AND (C.C.P. Section 170.1)
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TO THE HONORABLE JUDGE OF THE SUPERIOR COURT AND ALL PARTIES INTERESTED HEREIN:
Appellant respectfully requests Judge recuse herself under the California Code of Civil Procedures (CCP) Section (§) 170.1 (a)(6)(C): “For any reason . . . A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Appellant believes that any reasonable person aware of the facts and circumstances would believe that Judge Erin is biased and prejudiced, and has ignored the law. “The standard for disqualification provided in Code Civ. Proc., 170.1, subd. (a)(6)(C), providing for disqualification for bias or prejudice where a person aware of the facts might reasonably entertain a doubt that the judge is able to be impartial, is fundamentally an objective one. It represents a legislative judgment that, due to the sensitivity of the question and inherent difficulties of proof, as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable person would entertain doubts concerning the judge’s impartiality, disqualification is mandated. To insure that proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. This standard indicates that the decision is not based on the judge’s personal view of his own impartiality, and also suggests that the litigants’ necessarily partisan views do not provide the applicable frame of reference. Rather, the judge ought to consider how his participation in a given case looks to the average person on the street.
Judge Erin K. Alexander has been sitting on this case as filed by the Respondent, San Bernardino County Department of Children And Family Services. The first hearing took place on January 14, 2021. During the hearing, Judge Erin was openly impressed and observed that the Appellants had shown cooperation when they showed up with the children in court. (Tr. p. 8, lines 18-20). Judge Erin further made it clear that if any Appellant used drugs between the first appearance date and the next court appointment date, the children would be removed from them. (Tr. p. 11, lines 23-26). The Court further stated that if the children were not ina safe location, they would also be removed. (Tr. p. 11-12, lines 28-1). The father assured the court that he had stopped taking cigarettes and drinking beer. (Tr. P. 12, line 7-8).
The next hearing was on January 20, 2021. The Court noted that the Appellants’ home was being renovated, and that made it not conducive for the children. However, the Court observed that the children were rightly placed at the paternal grandmother’s house. (Tr. p. 14, lines 2-4). No contention was raised on this. The Court also assured the Appellants that because of their cooperation, the children would not be taken from them. (Tr. p. 16, lines 12-14).
The next hearing was on February 22, 2021. During the hearing, Judge Erin firmly stated that the Appellants’ keeping of the children would depend on their cooperation with the Court including their signing of the consents to start services. And that in the event the Appellants failed to sign the consents, the children would be removed. (Tr. p. 21, lines 11-23).
The next hearing was on March 10, 2021. During the hearing, the Court raised concerns as to the lack of cooperation of the mother, on the ground that the mother failed to take tests on two occasions and the Appellants’ failure to cooperate and engage services. (Tr. p. 24, lines 17-21). The father’s attorney informed the Court that the father would take care of the children adequately. (Tr. p. 25, lines 1-7). The mother’s attorney further informed the Court that contrary to the Court’s assertions, the mother’s testing was clean, and that she had not missed any testing. (Tr. p. 25, lines 14-15). The Appellants were also still living at the grandmother’s house as required. The mother’s attorney further expressed concerns of due process violations in that the Court sought to retain the children without a detention notice. (Tr. p. 26, line 1). Besides, the children were not at any risk that would warrant the Court to detain the children that day. The attorney further informed the Court that the mother was willing to take another test that day since she was going to be tested for COVID-19 that day. (Tr. p. 26, lines 9-17). Besides, the children had expressed their wish to remain in their grandmother’s house. (Tr. p. 27, lines 2-5). The Respondent’s attorney further stated that the mother’s previous testing have been negative. (Tr. p. 27, lines 19-20).
Further, on the self-same day, the Court turned down the father’s concerns that no tests had turned positive, and that the Social Worker was aware of this. (Tr. p. 29, lines 1-10). Besides, no issue was raised when the Social Worker visited the children at the grandmother’s house. Ultimately, the Court ordered the detaining of the children amidst the concerns raised by the Appellants.
The next hearing happened in April 15, 2021. During the hearing, the Court stated that the parents would only have custody of the children if they maintained negative tests. (Tr. pp. 36-37, lines 26-4).
The next hearing happened in April 26, 2021. During the hearing, the children’s attorney sought to include evidence that contained hearsay information. Both of the Appellants’ attorneys objected to the inclusion of the said evidence. (Tr. p. 40, lines 4-6 & Tr. p. 39, lines 19-21). However, the Court still proceeded to admit the said evidence. (Tr. p. 45, lines 5-8). On that day, witness Billy Seals, who was the Appellants’ neighbor, testified that he had never seen Denise Chavez under the influence. (Tr. p. 51, lines 11-13). He had also never seen Denise hit her children or abuse them. (Tr. p. 51, lines 14-28). The said witness further testified how good mannered the Denise was. (Tr. p. 52, lines 8-11).
The next hearing was done in June 9, 2021. During the hearing, concern was raised that the Court did not have the power to order a drug test prior to detention, per In Re E.E. (Tr. p. 60, lines 27-28). However, the Court denied the argument and stated that although the Court did not compel the Appellants to take the drug tests, the Court would consider the lack of drug tests in its findings. When the Social Worker was being interviewed, she testified that part of the Detention Report needed to be dismissed for lack of evidence. (Tr. p. 66, lines 16-17). Further, the minors had never told the Social Worker that they had any problems with the Appellants. (Tr. p. 66, lines 19-20). The social worker also testified that she had never been to the house where the Appellants lived to ascertain the living conditions of the children. (Tr. p. 69, lines 6-9). The Social Worker also stated that she was not aware of any third party or neighbors who informed her that the children were not being taken care of. (Tr. p. 74, lines 14-17). Additionally, the Social Worker testified that there was nothing to show that the father had done any conduct or was in a state that would cause the detention of the children by the Court.
When cross examined by the mother’s attorney, the Social Worker stated that she recommended family reunification and that the children should be returned to the Appellants. (Tr. p. 83, lines 23). The Social Worker further testified that she had never seen the mother under the influence. (Tr. p. 88, line 1). Further, when the mother tested positive, the Social Worker was not sure it was positive for what test. (Tr. p. 89, lines 2-3). The Social Worker was therefore not sure what kind of test was done and what it turned positive for, and whether the positive result was for the mother or the baby. Further, the Social Worker had not booked an appointment with the mother’s attorney, to set up an interview with the mother to ascertain whether the mother indeed abused drugs. (Tr. p. 97, lines 5-12). The Social Worker further testified that she had not ascertained the veracity of the positive results from the hospital and that she was not aware whether they could not be relied upon due to lack of confirmation. (Tr. p. 100, lines 4-6). The Social Worker further stated that it is traumatic for children not to be placed with their biological parents. (Tr. p. 106, lines 5-8).
The next hearing occurred on August 19, 2021. During the hearing, the mother’s attorney stated that the Respondent had failed to provide sufficient evidence to show why the children should be removed from the Appellants by reason of the mother’s conduct. (Tr. p. 180, lines 10-24). The father’s attorney also stated that the Respondent had failed to provide sufficient evidence to show why the children should be removed from the Appellants by reason of the father’s conduct. (Tr. p. 182, lines 25-28 & p. 183, lines 1-3). The Judge was also informed that the children had intimated that they felt more comfortable with the Appellants and wanted to live with them. (Tr. p. 202, lines 1-5). However, the Court held that the Respondent had sufficiently produced for its allegations against the Appellants and that the children needed to be removed from the custody of the parents.
THE RIGHT TO A FAIR AND IMPARTIAL JUDGE IS THE GROUNDS OF DUE PROCESS
Appellants argue that particular conduct of Judge Erin reveal a biased and prejudiced mindset, and along with an ignoring of the law. Judge Erin’s biased and prejudiced mindset may be clearly discerned by any reasonable person who has knowledge of the facts, and the law. Any objective person can see the prejudice will be directed towards the Appellants thus: “In order to disqualify a judge, his/her prejudice must be against a party to the action; . . .” Evans v Superior Court (1930) 107 CA 372, 290 P 662; Kreling v Superior Court (1944) 63 CA2d 353, 146 P2d 935.
It is well stated in CCP 170.1 (a) (6) (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer [or a pro per acting as a lawyer] in the proceeding may be grounds for disqualification. The previous corresponding statute–Sec. 170, subdivision (a)(5)–which was repealed in 1984, had been construed to require bias in fact, with the enactment of Sec. 170.1, however, a party seeking to disqualify a California judge for cause was no longer required to prove that the judge was actually biased. The test to be applied in evaluating recusal and disqualification of judges was clearly stated many years ago in Berger v United States (1921) 255 U.S. 22. The question to ask is whether the Prejudice justifies the charge of a bent of mind that may prevent or impede impartiality of judgment. See United Farm Workers of America v Superior Court (1985, 4th Dist) 170 Cal App 3d 97, 216 Cal Rptr 4.
Further, Code Civ. Proc., § 170.1, subd. (a)(6)(C) (Judge disqualified if person aware of facts might reasonably entertain doubt that judge would be impartial) makes the disqualification standard fundamentally an objective one. It represents a legislative judgment that due to the sensitivity of the question and inherent difficulties of proof as well as the importance of public confidence in the judicial system, the issue is not limited to the existence of an actual bias. Rather, if a reasonable man or woman would entertain doubts concerning the judge’s impartiality, disqualification is mandated. To ensure that the proceedings appear to the public to be impartial and hence worthy of their confidence, the situation must be viewed through the eyes of the objective person. The reason for the objective standard of proof is the difficulty in showing that a judge is biased unless the judge so admits. In addition, public perceptions of justice are not furthered when a judge who is reasonably thought to be biased in a matter hears the case. Catchpole v Brannon (1995, 1st Dist) 36 Cal App 4th 237, 42 Cal Rptr 2d 440.
In the instant action, the Appellants aver that Judge Erin showed bias all through the case. The Judge erroneously held that the parents should not have custody of the children. The children were not at any risk that would warrant the Court to detain the children that day. Notably, the children had expressed their wish to be with their parents, and that they were comfortable in their care. Further, witness Billy Seals, who was the Appellants’ neighbor, testified that he had never seen Denise Chavez under the influence. (Tr. p. 51, lines 11-13). He had also never seen Denise hit her children or abuse them. (Tr. p. 51, lines 14-28). He also testified how good mannered the Denise was. (Tr. p. 52, lines 8-11). The Respondent therefore presented no sufficient evidence to find the Appellants incapable of keeping custody of the children.
Besides, the Judge violated the Appellants’ due process rights. The mother’s attorney expressed concerns of due process violations in that the Court sought to retain the children without a detention notice. (Tr. p. 26, line 1). The Court was required to issue a detention notice prior to removing the children from the parents’ custody. Further, in April 26, 2021 the children’s attorney sought to include evidence that contained hearsay information. Both of the Appellants’ attorneys objected to the inclusion of the said evidence. (Tr. p. 40, lines 4-6 & Tr. p. 39, lines 19-21). However, the Court still proceeded to admit the said evidence. (Tr. p. 45, lines 5-8). Judge Erin also failed to consider precedent before the Court to wit, In Re E.E., which provides that the Court cannot order a drug test prior to detention. In contravention of the said precedent, Judge Erin relied his decisions on drug tests, which were illegal and unfounded in law. Appellants aver that this amounts to a blatant disregard of the law, and is highly unexpected of an officer of the Court.
LACK OF JURISDICTION VOIDS JUDGE ERIN’S INTERLOCUTORY AND FINAL ORDERS IN THIS CASE
When a judge does not follow the law, the judge loses subject-matter jurisdiction and the judges’ orders are void, of no legal force or effect. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 1687 (1974). Further, judicial immunity is no defense to a judge acting in the clear absence of jurisdiction. Bradley v. Fisher, US 13 Wall 335 (1871).
Void judgments lack jurisdiction and can legally be ignored as they neither bind, nor bar anyone. Obviously a judgment, though final and on the merits, has no binding force and is subject to collateral attack if it is wholly void for lack of jurisdiction of the subject matter or person, and perhaps for excess of jurisdiction, or where it is obtained by extrinsic fraud. 7 Witkin, Cal. Procedure, Judgment, 286, p. 828.)
CCP Section 473 permits a court, on noticed motion, to set aside void judgments and orders. Courts also possess inherent power to grant such relief. Reid v. Balter (1993) 14 Cal.App.4th 1186, 1194.
It follows; by reason of Judge Erin’s bias and/or injustice in this case, the Orders issued by the said Judge are null and void.
CONCLUSION
Any reasonable person looking at the current bench in the Appellants’ case would see bias and prejudice against the Appellants, and, the ignoring of the law by Judge Erin K. Alexander.
Therefore, the Appellants respectfully request that Judge and anyone under her supervision be disqualified under CCP 170.1(a)(6)(C) et seq. Appellants further request that the case be assigned to another department or in the alternative ask the Judicial Counsel to assign an independent Judge to this case.
In the best interest and for respect of the court this request for disqualification must be granted. The California legislature made reasonable decisions in these rules for disqualification and the rules must be followed.
DECLARATION OF APPELLANTS
We, Appellants, declare we are residents in California and we are the Appellants in this matter and declare that the foregoing is true and correct under penalty of perjury under the laws of the state of California, and can and will testify to such in any court or hearing. Executed in the state of California, in the County of San Bernardino, California.
Date:______________
_______________________
Enter Name
Father
_______________________
Enter Name
Mother
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CERTIFICATE OF MAILING
Appellants affirms that a copy of the above was served upon the Respondent to this action by electronic and/or U.S. mail to the respective address as stated below:
[ENTER ADDRESS]
Date: ___________________
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