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Name: In re Jesse G.
Case #: B172425
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 04/20/2005

A petition was filed alleging that the minor came within the provisions of Welfare and Institutions Code section 601 because he left home without permission on two occasions. At the adjudication hearing, appellant appeared in court with counsel. A deputy district attorney advised the court that in a section 601 case, the “court makes the inquiry.” Defense counsel did not object, and the referee proceeded to question the single witness, appellant’s mother. He then tentatively sustained the petition. At this point, appellant’s counsel objected to the court “taking the role of being a prosecutor” while presiding as referee. The court did not rule on the objection, but sustained the petition. The appellate court reversed and remanded. The referee improperly assumed the role of an advocate in violation of appellant’s right to due process. Once counsel objected, the referee should have continued the proceedings and required the probation officer to prosecute the petition or allowed the district attorney to present the evidence.