Filed 12/17/19
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


In re WILLIAM M.W. et al., Persons
Coming Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL                              A156489
SERVICES AGENCY,
                                                   (Alameda County Super. Ct.
        Plaintiff and Respondent,                  Nos. JD 029265-01, JD 029266-01)
v.
WILLIAM W. et al.,
        Defendants and Appellants.

          We are tasked with determining whether a juvenile court is mandated or
permitted to order a county child welfare agency to provide discovery to the parents of
dependent minors at no cost in dependency proceedings. Both William W. (father) and
Kathryn M. (mother) appeal from the juvenile court’s refusal to order the Alameda
County Social Services Agency (Agency) to deliver requested discovery electronically
and at no cost in advance of a contested review hearing involving their two young sons,
William M.W. (born in 2014) and William Z.W. (born in 2017). We conclude that no
court rule, statute, or constitutional principle requires the discovery order sought by
parents in this case. However, should a circumstance arise where an indigent parent’s
meaningful access to the judicial process is impaired by discovery requirements, the
juvenile court has the authority to fix the time, place, and manner of discovery upon such
terms and conditions as will serve the ends of justice and the purposes of the juvenile
court law. Because the juvenile court below incorrectly determined it had no such
authority, we remand the matter so that the court may exercise its discretion in the first
instance to decide whether any further discovery order is necessary under the specific
facts of this case.
                                  I. BACKGROUND
       In January 2018, the Agency filed a petition alleging that William M.W. and
William Z.W. came within the jurisdiction of the juvenile court under subdivisions (b)
and (g) of section 300 of the Welfare and Institutions Code1 due to certain conduct by
parents. The petition detailed several domestic violence incidents during which the
minors witnessed physical and verbal abuse. There were also substance abuse and mental
health concerns raised. In April 2018, the Agency filed an amended petition detaining
the minors from both parents. After further amendments to the petition, the court found
the allegations true, declared the minors to be juvenile court dependents, formally
removed them from parents’ care, and ordered reunification services.
        In September 2018, parents were notified that the Judicial Council—who selects
and pays for attorneys to represent parents in juvenile dependency cases (see Gov. Code,
§§ 77003, subd. (a)(4), 77200)—had chosen a new organization to provide legal
representation to parents of dependent minors in Alameda County. Specifically, the
Judicial Council had entered into a Dependency Representation, Administration, Funding
and Training Agreement with East Bay Family Defenders (EBFD). As a result, EBFD
attorneys were appointed as substitute counsel for both mother and father, effective
September 1, 2018.
       In advance of the December 2018 six-month review hearing, the Agency filed a
status review report recommending that reunification services continue for both parents.
However, in a January 2019 report, the Agency reconsidered, and recommended
termination of reunification and referral for selection of a permanent plan. The matter
was set for a contested hearing in February 2019.
       In advance of the contested hearing, EBFD filed a joint motion to compel
discovery, seeking a juvenile court order that copies of relevant discovery be provided by

       1
        All statutory references are to the Welfare and Institutions Code unless otherwise
specified. All rule references are to the California Rules of Court.

                                             2
the Agency to both parents at no cost to them. Father and mother sent letters to the
Agency memorializing this request and asking that the discovery be either faxed,
provided on a USB flash drive, or produced as printed copies. The Agency, however,
refused to comply with parents’ request.
       The Agency argued that the motion lacked merit because it had fulfilled its
discovery obligations by making discovery available to parents for inspection in
accordance with its usual protocol. Specifically, attorneys for both parents had been
notified that the redacted discovery materials would be ready for their review on
February 1, 2019. Once counsel reviewed the discovery and identified the documents
they would like duplicated, the Agency was willing to provide copies at a rate of $.10 per
page. Parents’ counsel was also allowed to take pictures of desired documents or to
otherwise copy them using their own supplies without charge by the Agency. The
Agency argued that any order by the juvenile court requiring it to expend funds to
provide the discovery free of charge to parents was impermissible because no statute
authorizes such an order and it would violate separation of powers principles and
constitute a gift of public funds.
       At the hearing on the parents’ discovery matter, parents’ counsel asserted that free
discovery was required in this case under constitutional principles of due process and
equal protection. The Agency maintained that its obligation to disclose did not extend to
copying and production of discoverable materials. After argument, the juvenile court
denied the discovery motion. It stated that it was denying parents’ request because it
believed it would otherwise “be acting in excess of its authority given the current state of
the statutory law.” The court further noted that the Agency had already made the
discovery available, but parents’ counsel had declined to go to the Agency’s office and
inspect it. In the court’s view, the Agency’s obligation under the law was “to make those
records available, period, and then counsel can decide on their own if they want to copy
the whole file or just one page.” Parents’ counsel “should get an opportunity to review
the discovery and then make whatever copies they need because they know their clients’
cases best.”


                                             3
       Both mother and father timely appealed from the denial of their motion to
compel.2 In addition, in August 2019, we granted the application of California Juvenile
Court Advocates (CJCA) to file an amicus curiae brief in support of parents’ position.
The Agency filed a responsive brief in October 2019, and the matter is now before us for
decision.
                                     II. DISCUSSION
A.     Requirements of California Rule of Court 5.546
       “Dependency proceedings in the juvenile court are special proceedings with their
own set of rules, governed, in general, by the Welfare and Institutions Code.” (In re
Chantal S. (1996) 13 Cal.4th 196, 200.) Prehearing discovery is primarily regulated in
the juvenile court by rule 5.546.3 The rule states it is to be “liberally construed in favor
of informal disclosures, subject to the right of a party to show privilege or other good
cause not to disclose specific material or information.” (Rule 5.546(a).) It requires child
welfare agencies to disclose police reports and all favorable evidence to the child, parent
or guardian, or their counsel. (Rules 5.546(b), 5.546(c).) Eight other specified categories
of information must be disclosed by the child welfare agency upon “timely request.”
(Rule 5.546(d).) “Discovery must be completed in a timely manner to avoid the delay or
continuance of a scheduled hearing.” (Rule 5.546(i); see rule 5.546(g).)4


       2
          Appellants also challenged the juvenile court’s decision via writ petition, which
we denied in May 2019 (J.N. v. Superior Court (A157076, petn. for writ of mandate den.
May 6, 2019)). The juvenile court’s discovery order was made after issuance of the
dispositional orders in this case and was therefore directly appealable, making writ
review unnecessary. (In re Daniel K. (1998) 61 Cal.App.4th 661, 666 [“section 395
grants appellate jurisdiction to review an order denying continuing discovery rendered
after ‘final judgment’ in a section 300 proceeding”]; In re S.B. (2009) 46 Cal.4th 529,
532 [“[t]he dispositional order is the ‘judgment’ referred to in section 395, and all
subsequent orders are appealable”].)
        3
          Although not relevant to the parents’ discovery requests in this case, child
welfare agencies also have certain statutory discovery obligations with respect to child’s
counsel (§ 317, subd. (f)), which we discuss further, post.
        4
          The Alameda County Superior Court Local Rules, rule 5.506(a) additionally
requires that the eight categories of discovery specified in rule 5.546(d) “be disclosed to

                                              4
       To ensure compliance with its discovery mandates, rule 5.546 contains several
provisions authorizing the juvenile court to regulate the discovery process as needed. For
instance, “[i]f a party refuses to disclose information or permit inspection of materials,
the requesting party or counsel may move the court for an order requiring timely
disclosure of the information or materials.” (Rule 5.546(f).) The juvenile court may
excise or place limits on the disclosure of privileged or nondiscoverable materials. (Rule
5.546 (g), (h).) The court may issue a discovery order specifying “the time, place, and
manner of making the discovery and inspection and may prescribe terms and conditions.”
(Rule 5.546(i).) Finally, “[i]f at any time during the course of the proceedings the court
learns that a person has failed to comply with [the] rule or with an order issued under
[the] rule, the court may order the person to permit the discovery or inspection of
materials not previously disclosed, grant a continuance, prohibit a party from introducing
in evidence the material not disclosed, dismiss the proceedings, or enter any other order
the court deems just under the circumstances.” (Rule 5.546(j).)
       Appellants broadly assert that the Agency’s “open file” discovery procedure is
burdensome and unreasonable and therefore at odds with its affirmative duty to disclose
discovery under rule 5.546, without specifying how the Agency’s procedure actually
violates any of the requirements set forth in the rule. CJCA’s amicus brief takes the
position that the term “disclosure” in rule 5.546 should be construed to mean the
production and delivery of discoverable material at no cost. The Agency, on the other
hand, insists that it can meet its discovery obligations under rule 5.546 by making all
discoverable materials available for inspection and copying. We conclude the Agency
has the better argument.
       The Judicial Council adopted rule 5.546 “under its constitutional and statutory
authority to adopt rules for court administration, practice, and procedure that are not
inconsistent with statute.” (Rule 5.501(b).) Specifically, the Legislature has directed the
Judicial Council to “establish rules governing practice and procedure in the juvenile court

all parties, without the need for an informal request, no later than five court days before
any contested hearing.”

                                              5
not inconsistent with law.” (§ 265; see Cal. Const., art. VI, § 6, subd. (d) [giving Judicial
Council the power to “adopt rules for court administration, practice and procedure” in
order to “improve the administration of justice”].) “The rules have the force of statute to
the extent that they are not inconsistent with legislative enactments and constitutional
provisions.” (In re Richard S. (1991) 54 Cal.3d 857, 863 (Richard S.).) Insofar as they
add to existing statutory authority, the rules “must be construed so as to implement the
purposes of the juvenile court law.” (Rule 5.501(c)(2).)
       We independently review interpretations of California Rules of Court, applying
the usual rules of statutory construction. (Mercury Interactive Corp. v. Klein (2007)
158 Cal.App.4th 60, 81; Volkswagen of America, Inc. v. Superior Court (2001)
94 Cal.App.4th 695, 703.) These tenets are well established. “ ‘ “When construing a
statute, a court seeks to determine and give effect to the intent of the enacting legislative
body.” [Citation.] “ ‘We first examine the words themselves because the statutory
language is generally the most reliable indicator of legislative intent. [Citation.] The
words of the statute should be given their ordinary and usual meaning and should be
construed in their statutory context.’ [Citation.] If the plain, commonsense meaning of a
statute’s words is unambiguous, the plain meaning controls.” ’ ” (Catlin v. Superior
Court (2011) 51 Cal.4th 300, 304; see MCI Communications Services, Inc. v. Cal. Dept.
of Tax & Fee Administration (2018) 28 Cal.App.5th 635, 643 [“ ‘ “ ‘[i]f there is no
ambiguity in the language, we presume the Legislature meant what it said and the plain
meaning of the statute governs’ ” ’ ”]; ibid. [in determining plain meaning, the words of a
statute “ ‘ “must be construed in context, and provisions relating to the same subject
matter must be harmonized to the extent possible” ’ ”].) In contrast, “ ‘if the statutory
language may reasonably be given more than one interpretation, “ ‘ “courts may consider
various extrinsic aids, including the purpose of the statute, the evils to be remedied, the




                                              6
legislative history, public policy, and the statutory scheme encompassing the
statute.” ’ ” ’ ” (Catlin, at p. 304.)5
       Turning to our interpretation of rule 5.546, we note that the ordinary meaning of
the word disclose is “to open up,” “expose to view,” “to make known,” “to reveal in
words,” or to “divulge.” (Webster’s 3d New Internat. Dict. (2002) p. 645, capitalization
omitted.) In Schaffer v. Superior Court (2010) 185 Cal.App.4th 1235 (Schaffer), the
Second District applied this ordinary meaning to Penal Code section 1054.1, a criminal
discovery statute which similarly requires the government to “disclose” certain specified
categories of discoverable materials to a defendant. The court held that the prosecution
can comply with its discovery obligations under Penal Code section 1054.1 “by affording
the defendant an opportunity to examine, inspect, or copy the discoverable items.”
(Schaffer, at pp. 1237–1238; see id. at p. 1242; Pen. Code, § 1054.1.) We see no reason
to reach a different result with respect to the analogous use of the term “disclose” in rule
5.546. Nor do we read Local Rule 5.506(a)’s use of the same term as creating a different
level of disclosure not otherwise mandated by the rule of court.
       Citing Duhaime’s Law Dictionary, CJCA argues that “disclosure” has a specific
legal meaning—“the identification and surrendering to the other side of photocopies’ of
documents” (http://www.duhaime.org/LegalDictionary/D/Disclosure.aspx, as of Dec. 17,
2019)—that should trump the ordinary, lay meaning of the term. (See Arnett v. Dal Cielo
(1996) 14 Cal.4th 4, 19 [while “courts ordinarily give the words of a statute the usual,
everyday meaning they have in lay speech[,] . . . when a word used in a statute has a
well-established legal meaning, it will be given that meaning in construing the statute”].)

       5
        Appellants have asked us to take judicial notice of the records in a number of
cases involving similar issues—Alameda County Social Services v. J.S. (A156434, app.
pending); Alameda County Social Services v. O.C. (A156510, app. pending); Alameda
County Social Services v. D.W. (A156513, app. pending); and Alameda County Social
Services v. L.G. (A156749, app. pending). We took the request under submission, to be
decided with the merits of this appeal. Other than the record materials in case Alameda
County Social Services v. J.S., supra, A156434, expressly mentioned by the juvenile
court and incorporated by reference into the record in this matter, we deny the request as
unnecessary to our decision.

                                              7
Arnett does not support amici’s position. The court was tasked with determining whether
the word “discovery” in section 1157 of the Evidence Code should be construed
according to its ordinary, everyday sense or pursuant to a specific legal definition. After
recapping a long history in which the Legislature has used the term “discovery” to
describe the “formal exchange of evidentiary information and materials between parties
to a pending action,” the Arnett court concluded it must be given its well-established
legal meaning. (Id. at pp. 21–24.) CJCA does not trace a similar lineage in the word
“disclosure” or cite to any authority that establishes it is a widely accepted legal term of
art for the production of documents at no cost to a party litigant. Indeed, other legal
definitions of the term do not reflect this understanding. (See Black’s Law Dictionary
(11 ed. 2019) at pp. 585, 583 [defining “discovery disclosure” to require only the
“divulging of information to a litigation opponent according to procedural rules” rather
than delivery of documents].)
       Moreover, the full text of rule 5.546 supports our conclusion that a disclosure
obligation is not synonymous with document production. Rule 5.546(b) is titled, “Duty
to disclose police reports.” That subdivision expressly permits a child welfare agency to
either “deliver” the police reports or make them “accessible for inspection and copying.”
(Rule 5.546(b).) Thus, “disclosure” under the rule evinces a broader meaning that
includes the option of making materials available for review or turning over paper or
electronic copies. Other subdivisions bear out this construction. (See rule 5.546(f)
[allowing a party to move the court for a discovery order where another party “refuses to
disclose information or permit inspection of materials”]; 5.546(i) [court’s discovery order
“may specify the time, place, and manner of making the discovery and inspection”];
5.546(j) [where party has not complied with the rule or the court’s discovery order, “the
court may order the person to permit the discovery or inspection of materials not
previously disclosed”].)6

       6
        CJCA acknowledges that rule 5.546(b) allows for inspection of police reports as
a method of disclosure but contends it is the exception to the general rule requiring
delivery of discoverable materials. Noting rule 5.546(b)’s use of the word “promptly,”

                                              8
       Finally, had the Judicial Council intended to require something more than simple
disclosure under rule 5.546, there are clear examples of how to make that intent explicit.
For example, in proceedings for summary dissolution under the Family Code, rule 5.77
provides that, “to comply with preliminary disclosure requirements,” joint petitioners
“must complete and give each other copies” of certain specified documents. Subdivision
(e) of Penal Code section 1054.9 expressly mandates that, if the court orders the
prosecution to provide “access” to discoverable materials for certain defendants in
connection with postconviction habeas corpus proceedings, the “actual costs of
examination or copying” such materials “shall be borne or reimbursed by the
defendant.”7 All of these considerations lead us to the conclusion that rule 5.546 requires
only an opportunity for inspection of discoverable materials and affords the Agency
flexibility in the means by which these records may be made available to requesting
parties.
       We have no reason to doubt CJCA’s assertion that numerous California counties
provide discovery to the parents of dependent minors pursuant to rule 5.546 at no cost.


CJCA argues that the Judicial Council made an exception for police reports “to ensure
they are available at the first opportunity.” We are not persuaded. This matter comes
before us because of appellants’ firm conviction that mandated delivery of discovery
would be speedier and more efficient than the Agency’s chosen inspection process. That
a child welfare agency can comply with its obligation to disclose police reports
“promptly” by allowing inspection argues in favor of, rather than against, our
construction of the rule.
       7
         Although we do not reach the issue, section 317 may provide another example of
a provision requiring a specific mode of discovery—i.e., delivery. That statute states that
minor’s counsel “shall be charged in general with the representation of the child’s
interests.” (§ 317, subd. (e)(1).) To aid in the discharge of this duty, the statute provides
that minor’s counsel be given access to certain health care records, child custodian
records, and “all records relevant to the case that are maintained by state or local public
agencies.” (§ 317, subd. (f).) It further states that “[a]ll information requested from a
child protective agency regarding a child who is in protective custody . . . shall be
provided to the child’s counsel within 30 days of the request.” (Ibid., italics added.)
Arguably, this broad provision requires that the child welfare agency actually furnish
copies of requested materials to minor’s counsel. By its terms, however, subdivision (f)
of section 317 is not applicable to parents’ counsel.

                                              9
We agree with the Agency, however, that this fact would not establish that the counties
have interpreted rule 5.546 as mandating such a procedure. Rather, their practice is
consistent with our construction of rule 5.546, which gives child welfare agencies the
option to provide copies of discovery free of charge or for a modest fee.
B.     Due Process Challenge
       Having concluded that the disclosure obligations set forth in rule 5.546 may be
satisfied by allowing parents to inspect and copy discoverable materials, we next consider
whether constitutional due process principles require a different result. Appellants
contend that, given the fundamental parental rights at stake in dependency proceedings,
due process requires that the Agency produce the discovery mandated by rule 5.546 to
indigent parents “in the most efficient and cost-effective” way possible. According to
appellants, this means scanning the documents and either emailing them or transferring
them to a USB drive. Appellants assert that the Agency’s chosen process is archaic and
unreasonable and that efficient access to litigation resources is essential to level the
playing field for indigent parents in dependency actions “where the risk of an erroneous
decision permanently affects the lives and well-being of children and families.”8 While
we acknowledge the importance of the rights involved, we are simply not convinced that
due process in this context requires the electronic transmission of mandated discovery to
indigent parents free of charge.
       It is beyond debate that the parental rights implicated in dependency proceedings
are significant. “[F]reedom of personal choice in matters of family life is a fundamental
liberty interest protected by the Fourteenth Amendment.” (Santosky v. Kramer (1982)
455 U.S. 745, 753.) In an action initiated by the state to terminate parental rights, the
private interest at stake is a parent’s “fundamental” and “commanding” liberty interest in
maintaining a parent-child relationship with the child. (Id. at pp. 758–759.) Indeed, it is


       8
          In its amicus brief filed herein, CJCA joins in appellants’ due process argument.
However, while CJCA argues in favor of provision of mandated discovery at no cost, it
“take[s] no position” as to whether a particular mode of transmission is required, so long
as it is prompt and informal.

                                              10
precisely because basic civil rights of the parent are at stake that “significant due process
safeguards have been built into the dependency scheme [citation], including a right to
court-appointed counsel for a parent who cannot afford to retain counsel.” (In re
James F. (2008) 42 Cal.4th 901, 904; see § 317; see also Cynthia D. v. Superior Court
(1993) 5 Cal.4th 242, 256.) [concluding that the procedure for terminating parental rights
in dependency actions comports with due process due to “the precise and demanding
substantive and procedural requirements the petitioning agency must have satisfied
before it can propose termination”].) All parties who are represented by counsel in
dependency proceedings are also statutorily entitled to competent counsel. (§ 317.5,
subd. (a); see rule 5.660(d).)
       “In addition to these statutory rights, an indigent parent may in some cases have a
due process right to counsel where the termination of parental rights may result.” (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1659 (Kristin H.).) “This is because the parent’s
interest at the termination of parental rights stage is extremely important; the state shares
with the parent an interest in a correct decision; and the risk of an erroneous deprivation
of the parent’s rights is insupportably high.” (In re O.S. (2002) 102 Cal.App.4th 1402,
1407.) Moreover, a parent who has established a due process right to appointed counsel
in dependency proceedings is also “entitled to effective assistance of counsel; otherwise
‘it will be a hollow right.’ ” (Kristin H., at p. 1659.) We will assume, without deciding,
that a parent has a due process right to effective counsel at a hearing that may result in the
setting of a hearing to terminate parental rights, such as the hearing that was pending
when appellants made the discovery requests at issue in the instant case.
       In the criminal context, our high court has opined: “It cannot be doubted that the
right to counsel guaranteed by both the federal and state Constitutions includes, and
indeed presumes, the right to effective counsel [citations], and thus also includes the right
to reasonably necessary ancillary defense services.” (Corenevsky v. Superior
Court (1984) 36 Cal.3d 307, 319, fns. omitted.) For an indigent defendant, “[n]ecessary
expenses for a criminal defense can include discovery costs, investigative costs, transcript
costs, expert fees, etc.” (Schaffer, supra, 185 Cal.App.4th at p. 1245; see Pen. Code,


                                             11
§ 987.8, subd. (g)(1) [“ ‘Legal assistance’ means legal counsel and supportive services
including, but not limited to, medical and psychiatric examinations, investigative
services, expert testimony, or any other form of services provided to assist the defendant
in the preparation and presentation of his or her case.”].) The defendant bears the burden
of showing that an ancillary defense service is necessary. (Corenevsky, at p. 320; see
Schaffer, at p. 1245 [“A criminal defendant who has established his [or her] indigent
status is constitutionally entitled to those defense services for which he [or she]
demonstrates a need.”].) However, appellants’ attempt to establish a constitutional
obligation not around access to pertinent records but around their preferred method of the
discovery procedure must be rejected.
       Preliminarily, we note that parents in dependency proceedings are not generally
entitled to the same due process protections as criminal defendants. (See In re Sade C.
(1996) 13 Cal.4th 952, 982 [“An indigent parent adversely affected by a state-obtained
decision on child custody or parental status is simply not a criminal defendant.”].)
Dependency proceedings are civil in nature and nonpunitive. (Ibid.) In the civil context,
“ ‘ “[d]ue process requires only that the procedure adopted comport with fundamental
principles of fairness and decency.” ’ ” (People v. Nelson (2012) 209 Cal.App.4th 698,
712; see People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154 [due
process in civil proceedings “is not measured by the rights accorded a defendant in
criminal proceedings”].) Thus, “ ‘ “[t]he due process clause of the Fourteenth
Amendment does not guarantee to the citizen of a state any particular form or method of
procedure.” ’ ” (Nelson, at p. 712, italics added.) Rather, in testing the fundamental
fairness of government decisionmaking, courts balance four relevant factors: “(1) the
private interest that will be affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; (3) the government’s interest, including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail; and (4) the dignitary interest in informing
individuals of the nature, grounds, and consequences of the action and in enabling them


                                              12
to present their side of the story before a responsible government official.” (People v.
Otto (2001) 26 Cal.4th 200, 210.)
       Here, appellants have the services of appointed counsel, compensated under
contract by the Judicial Council, who are charged with their client’s effective
representation and who have access to all mandated discovery. Although appellants
contend that, as indigent parents, they should not be required to bear the cost of obtaining
documents necessary to mount a defense in dependency proceedings, they do not, in fact,
claim that they have had to bear these discovery expenses themselves. And the record
does not disclose what, if any, discovery expenses were incurred. Rather, appellants’ due
process claim is premised on the notion that the Agency has a constitutional duty to
implement more efficient and cost-effective policies. While having to drive to an Agency
office to review documents and earmark those for photocopying may be time consuming
and indeed “archaic” in this modern age, we fail to see how the possible inconveniencing
of parents’ counsel implicates fundamental precepts of fairness and decency or deprives
appellants of a substantial right.
       Even if the specific due process rights afforded to criminal defendants were
available to parents in dependency proceedings, due process would not require the
electronic transmission of discoverable materials to indigent parents free of charge. As
stated above, the appellate court in Schaffer, supra, 185 Cal.App.4th 1235, rejected a
similar argument, opining that the People can comply with Penal Code section 1054.1,
the criminal discovery statute, “by affording the defendant an opportunity to examine,
inspect, or copy the discoverable items.” (Schaffer, at pp. 1237–1238.) In making this
determination, the court noted that “[b]oth the United States and California Supreme
Courts have held that a criminal defendant does not possess a general constitutional right
to discovery.” (Id. at p. 1243.) Rather, due process compels only “ ‘disclosure’ of
material evidence favorable to the defendant.” (Ibid.; see Brady v. Maryland (1963)
373 U.S. 83, 87.) Open file discovery policies satisfy this standard. (See People v.
Zambrano (2007) 41 Cal.4th 1082, 1134–1135 (Zambrano) [concluding that the
prosecutor’s open file policy complied with the prosecution’s duty to disclose


                                            13
exculpatory evidence under both the Brady rule and the criminal discovery statute],
overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22;
Schaffer, at p. 1244 [while “the prosecutor is not under an obligation to provide copies,”
the parties are “ ‘free to negotiate and agree upon the payment of a fee for copies of
discoverable materials’ ”].)
       Although the attorney in Schaffer was retained rather than appointed, our analysis
does not hinge on this distinction. Several courts have concluded that making discovery
available is enough, even when the defendant involved was represented by appointed
counsel. In People v. Garner (1961) 57 Cal.2d 135, for example, the Supreme Court
remarked that the defendant’s court-appointed trial counsel “was entitled to inspect, view,
hear, or copy any and all statements of defendant” and that “it was the duty of
defendant’s trial counsel to go to the office of the district attorney and inspect the
statements available to him there.” (Id. at p. 142.) Similarly, in Joe Z. v. Superior Court
(1970) 3 Cal.3d 797, our high court upheld the right of a juvenile ward represented by the
public defender to “inspect and copy” his pretrial statements. (Id. at pp. 799, 803.)
Finally, the opinion of the Attorney General cited extensively in Schaffer found no
authority supporting an indigent’s right to copies—in addition to inspection—of
discoverable materials in the possession of the prosecution. (85 Ops.Cal.Atty.Gen. 123,
127, fn. 7 (2002).) We thus conclude that the open file procedure adopted by the Agency
comports with due process as a general matter.
C.     Equal Protection Claim
       We are similarly unpersuaded by CJCA’s argument that the Agency’s process for
disclosing discovery materials under rule 5.546 violated appellants’ federal and state
constitutional right to access to the courts.9 CJCA relies primarily on two United States

       9
         Although our high court recognizes its authority to construe our state
Constitution independently, the “equal protection provisions in the California
Constitution ‘have been generally thought in California to be substantially the equivalent
of the equal protection clause of the Fourteenth Amendment to the United States
Constitution.’ ” (Manduley v. Superior Court (2002) 27 Cal.4th 537, 571, fn. omitted;
see People v. Laird (2018) 27 Cal.App.5th 458, 469 [“The California equal protection

                                              14
Supreme Court cases which conclude that equal protection principles are violated when
an indigent litigant is denied access to an existing appellate process solely because of an
inability to pay for a required transcript of the trial proceedings. In Griffin v. Illinois
(1956) 351 U.S. 12 (Griffin), the court struck down an Illinois rule that effectively
conditioned the right to appeal from a criminal conviction on the defendant’s
procurement of a trial transcript. The Illinois rule challenged in Griffin deprived most
defendants lacking the means to pay for a transcript of any access to appellate review.
“Although the Federal Constitution guarantees no right to appellate review, [citation],
once a State affords that right, Griffin held, the State may not ‘bolt the door to equal
justice.’ ” (M.L.B. v. S.L.J. (1996) 519 U.S. 102, 110.) M.L.B. extended the holding in
Griffin to appellate proceedings involving the termination of parental rights. (M.L.B., at
pp. 106, 124.) Although civil in nature, the court was convinced that—given the
fundamental rights involved—a parent’s access to existing judicial processes allowing
appeal from a decree terminating parental rights cannot turn on ability to pay mandated
record preparation fees. (Id. at pp. 106, 116–124.)
       Griffin and M.L.B. are readily distinguishable from the situation under review
because, in those cases, the litigant was denied all access to an established court process
based on lack of financial resources. Here, in contrast, appellants have been given access
to review the mandated discovery in preparation for their defense, just not in their
preferred manner. CJCA appears to argue, however, that once the Agency set up a
discovery process that provides copies of discoverable materials contingent upon
payment of a fee, it subjected indigent litigants to disparate treatment, blocking them
from the full and meaningful access to discovery available to those parents with sufficient
funds to obtain copies. We reject this argument, primarily because the constitutional
right of indigent parents in dependency proceedings to equal access to the courts has been




clause offers substantially similar protection to the federal equal protection clause.”].)
We will therefore construe the two provisions together. Our review of this constitutional
claim is de novo. (Laird, at p. 469.)

                                               15
adequately protected through their statutory and constitutional right to appointed counsel.
(§§ 317, subd. (b), 317.5, subd. (a); Kristin H., supra, 46 Cal.App.4th at p. 1659.)
       We find instructive the precedent discussing the constitutional right of indigent
prisoners to meaningful access to courts as civil defendants. “An indigent prisoner who
is a defendant in a bona fide civil action threatening his or her personal or property
interests has a federal and state constitutional right, as a matter of due process and equal
protection, of meaningful access to the courts in order to present a defense.” (Wantuch v.
Davis (1995) 32 Cal.App.4th 786, 792, citing Yarbrough v. Superior Court (1985)
39 Cal.3d 197, 203–207 & Payne v. Superior Court (1976) 17 Cal.3d 908, 913–919,
924.) Meaningful access to the courts, however, “ ‘does not necessarily mandate a
particular remedy’ to secure access.” (Wantuch, at p. 792; see Payne, at p. 923.) Rather,
“[t]he trial court determines the appropriate remedy to secure access in the exercise of its
sound discretion.” (Wantuch, at p. 794; see Yarbrough, at pp. 200, 207; Payne, at p.
927.) Case law suggests a laundry list of remedies to provide access in this context,
including “appointment of counsel for the prisoner.” (Wantuch, at p. 792; see Yarbrough,
at pp. 200–201.) Indeed, appointment of counsel is viewed as the remedy to be
considered when other lesser remedies prove inadequate. (Yarbrough, at pp. 200–201
[“In an appropriate case, and as a last alternative, appointment of counsel may be the only
way to provide an incarcerated, indigent civil defendant with access to the courts for the
protection of threatened personal and property rights.”].)
       Here, appellants may rely on the services of their court appointed EBFD counsel
to manage the preparations for their upcoming review hearing. We have no doubt that—
even if counsel did not prefer the Agency’s discovery procedure—they would do
whatever was necessary to obtain the information needed to zealously advocate for their
clients. For this reason, we reject the suggestion that only retained counsel would have
the time and incentive to inspect and copy discovery at the Agency’s office. In our
experience, court-appointed counsel in dependency actions take their duty to effectively
represent their clients very seriously. Indeed, in the proceedings below, once the juvenile
court denied their motion to compel, parents’ counsel immediately requested a


                                             16
continuance so that they could adequately review the discovery with their clients in
preparation for the pending review hearing.
       Could the Agency have managed to create a more seamless discovery process in
service to their young and vulnerable clients and the underlying purposes of the juvenile
court law? Almost certainly, as many other counties have done. In finding no equal
protection violation on this record, we are not opining on the wisdom of the Agency’s
chosen procedure. Absent legislative change or an agreement among the stakeholders to
adopt a different approach, we hold only that, where counsel is appointed to represent an
indigent litigant, the Agency’s current discovery policy does not run afoul of state or
federal equal protection guarantees. (Compare People v. Washington (2019) 34
Cal.App.5th 311, 318–321 [finding no equal protection issue with respect to charging
discovery costs to an indigent defendant where a third party, who retained counsel for
him under a written agreement, agreed to pay such costs].)
D.     The Court Had Authority to Manage Discovery
       Discovery in juvenile matters rests within the control of the juvenile court, and the
exercise of its discretion in this context will be reversed on appeal only on a showing of a
clear abuse. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1166.) Had the juvenile
court concluded that appellants’ requested discovery order was not legally compelled or
warranted, we would normally find its denial of appellants’ motion well within the
bounds of its broad discretion in such matters. However, a court’s failure to exercise
discretion may itself constitute an abuse of discretion. (People v. Sandoval (2007)
41 Cal.4th 825, 847–848; Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th
1082, 1099.) Here, the juvenile court expressly stated that it did not have the authority to
make the requested discovery order. We must therefore determine whether the juvenile
court was correct in its belief that it had no discretion to enter an order requiring the
Agency to provide discovery to parents at no cost. We conclude the juvenile court
misapprehended the scope of its powers.
       “The California Constitution divides power equally among three branches of state
government: the Legislature (Cal. Const., art. IV, § 1); the executive branch (Cal. Const.,


                                              17
art. V, § 1); and the courts (Cal. Const., art. VI, § 1). Although there is a certain overlap
and interdependence among the three branches, each is constitutionally vested with
certain ‘core’ or ‘essential’ functions that the others may not perform. [Citation.]
Protection of those core functions is guarded by the separation of powers doctrine and is
embodied in a constitutional provision, which states that one branch of state government
may not exercise the powers belonging to another branch. [Citations.] The purpose of
this doctrine is to prevent both the concentration of power in a single branch of
government and overreaching by one branch against another.” (Perez v. Roe 1 (2006)
146 Cal.App.4th 171, 176–177 (Perez); see Cal. Const., art. III, § 3 [“The powers of state
government are legislative, executive, and judicial. Persons charged with the exercise of
one power may not exercise either of the others except as permitted by this
Constitution.”].)
       “A core function of the judiciary is to resolve specific controversies between
parties.” (Perez, supra, 146 Cal.App.4th at p. 177.) “The juvenile court is a special
department of the superior court whose powers are limited to those granted by the
Juvenile Court Law [citation] plus those incidental thereto.” (In re Ashley M. (2003)
114 Cal.App.4th 1, 6 (Ashley M.).) “The county’s social services agency plays a ‘hybrid’
role in dependency proceedings, exercising both executive and judicial functions.” (Id. at
p. 7.) At times, the social services agency acts as an arm of the court, providing it with
essential information. (Ibid.) At other times, “[i]n providing child welfare services, the
county’s social services agency acts as an administrative agency of the executive branch,
subject to supervision by the State Department of Social Services.” (Id. at p. 8.)
Moreover, “[t]he internal management of the social services agency is given by statute to
the county’s director of social services, who acts on behalf of the county's board of
supervisors.” (Id. at p. 9.) Based on these respective judicial and executive functions,
our First District in Ashley M. concluded that “[t]he determination of how best to assign
duties to employees and otherwise allocate the agency’s resources is not a judicial
function and must be left to the agency’s own discretion.” (Ibid.) Thus, “the decision to



                                              18
assign specific duties to a particular social worker is not a decision that falls within the
realm of the juvenile court’s powers.” (Id. at p. 8.)
       Relying on Ashley M., the Agency argues that its decision to partially recoup the
cost of copying discovery is an internal policy decision regarding how best to allocate its
resources that cannot be disturbed by the juvenile court. We disagree. The purpose of
the separation of powers doctrine “ ‘is to prevent one branch of government from
exercising the complete power constitutionally vested in another [citation]; it is not
intended to prohibit one branch from taking action properly within its sphere that has the
incidental effect of duplicating a function or procedure delegated to another branch.’ ”
(Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 298;
see In re M.C. (2011) 199 Cal.App.4th 784, 807–815 [no separation of powers violation
when juvenile court ordered child welfare agency to file dependency petition].) In
contrast to the Agency’s internal personnel determinations (Ashley M., supra,
114 Cal.App.4th at p. 9) or its adjudication of a former dependent’s eligibility for AFDC-
FC payments (In re A.F. (2013) 219 Cal.App.4th 51, 59–60), the juvenile court is vested
with the authority to manage discovery in juvenile dependency actions and to adjudicate
disputes between parties. The juvenile court discovery rule was adopted pursuant to a
constitutional grant of authority and has the force of statute. (See Cal. Const., art. VI,
§ 6, subd. (d); Richard S., supra, 54 Cal.3d at p. 863.) Pursuant to that rule, the juvenile
court is authorized to “specify the time, place, and manner of making the discovery and
inspection and may prescribe terms and conditions.” (Rule 5.546(i).) In addition, the
court may enter any order it “deems just under the circumstances” when a party fails to
comply with rule 5.546 or a court order issued pursuant to that rule. (Rule 5.546(j).)
       Many of the orders routinely and properly made by juvenile courts have incidental
financial impacts on child welfare agencies. For example, a juvenile court might require
that weekend visitation be provided under the facts of a specific case, even if such an
approach imposes greater expense on a child welfare agency. Or the court might order
preparation of a supplemental report on a specific issue, thereby requiring a social worker
to expend additional time and resources. Similarly, in the discovery context, we conclude


                                              19
the juvenile court is empowered to issue an order that manages the terms and conditions
of discovery, and such order would not violate separation of power principles even if it
had an incidental effect on the Agency’s finances.
       We will not here attempt to delineate the scope of the juvenile court’s power in
this regard. As one example, however, it seems likely that a juvenile court could properly
order a child welfare agency to immediately provide copies of relevant discovery at no
cost if the agency’s implementation of its discovery policy significantly burdened or
completely blocked a parent’s right to timely discovery under rule 5.546. (See, e.g.,
Zambrano, supra, 41 Cal.4th at p. 1134 [acknowledging that an open file discovery
policy might raise concerns “if the prosecutor used the policy to impose impracticable or
unduly oppressive self-discovery burdens on the defense”].) Moreover, an indigent
parent who is proceeding without appointed counsel, or whose meaningful access to the
judicial process is impaired by discovery requirements, might be permitted a free,
expedited process on constitutional grounds or to advance the purposes of the juvenile
court law. (See rule 5.501(c)(2)).) We express no opinion whether any of these
circumstances are present in the instant proceedings. However, since the juvenile court
believed it had no discretion in this context, we conclude the best course of action is to
remand the matter so that the court may consider the particular circumstances of this case
and determine for itself whether or not to exercise its discretion to craft a discovery order.
       Finally, since we have concluded that, under appropriate circumstances, the
juvenile court may make a discovery order that results in incidental additional costs to the
Agency, it necessarily follows that such an order would not constitute an improper gift of
public funds. “Section 6 of article XVI of the California Constitution provides that the
Legislature has no power ‘to make any gift or authorize the making of any gift, of any
public money or thing of value to any individual, municipal or other corporation . . . .’
The term ‘gift’ in the constitutional provision ‘includes all appropriations of public
money for which there is no authority or enforceable claim,’ even if there is a moral or
equitable obligation.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th
431, 450.) “The primary question is whether the money is to be used for a public or a


                                             20
private purpose, and, if it is for a public purpose, it is generally not regarded as a gift
within the meaning of this constitutional prohibition.” (San Diego County Dept. of Social
Services v. Superior Court (2005) 134 Cal.App.4th 761, 766 (San Diego DSS).)
       We have concluded that a discovery order made in an appropriate case which
mandates disclosure in a manner requiring an additional Agency expenditure is
specifically authorized by rules 5.546(f) and 5.546(i). (See also Cal. Const., art. VI, § 6,
subd. (d) [empowering the Judicial Council to “adopt rules for court administration,
practice and procedure” in order to “improve the administration of justice”].) Moreover,
such a discovery order would be made to advance the purposes of the discovery rule,
itself, and the purposes of the juvenile court law generally—purposes we believe are
sufficiently “public” to rebut a gift-of-public-funds challenge. (See rules 5.501(c)(2),
5.546(a) & 5.546(i); see also Payne, supra, 17 Cal.3d at p. 920 [“aiding the judicial
process and preserving constitutional rights cannot be deemed a ‘gift’ ”]; compare San
Diego DSS, supra, 134 Cal.App.4th at pp. 766–767 [juvenile court made a prohibited gift
of public funds when it ordered the use of county monies to pay independent counsel to
investigate the possibility of filing a civil suit on behalf of a dependent minor absent a
statute authorizing compensation for such an attorney].)
       In sum, the juvenile court has the discretion to issue an order which sets the time,
place, and manner of discovery without violating separation of powers principles or
improperly gifting public funds. Having failed to exercise its discretion in the first
instance, we are obligated to remand this matter to allow the juvenile court the
opportunity to do so. We are well aware that dependency proceedings with respect to
these young minors have continued in the juvenile court during the time this appeal has
been pending, and it may be that current circumstances make any further consideration of
this discovery matter unnecessary. Nevertheless, we leave it to the trial court to
determine whether any further action must be taken.




                                               21
                                   III. DISPOSITION

      The matter is reversed and remanded for further proceedings consistent with the
views expressed in this opinion.




                                          22
                                                   _________________________
                                                   Sanchez, J.


WE CONCUR:


_________________________
Humes, P. J.


_________________________
Margulies, J.




A156489 Alameda County Social Services Agency v. William W.


                                              23
Trial Court:          Alameda County Superior Court

Trial Judge:          Hon. Charles Smiley

Counsel:

      Valerie N. Lankford, by appointment of the Court of Appeal, for Defendants and
Appellants.

      Boies Schiller Flexner, Maxwell V. Pritt, for California Juvenile Court Advocates
as amicus curiae on behalf of Defendants and Appellants.

     Donna R. Ziegler, County Counsel, Samantha N. Stonework, Deputy County
Counsel, for Plaintiff and Respondent.




A156489 Alameda County Social Services Agency v. William W.



                                              24
