Opinion
F085351
05-07-2024
SALVINO AMAYA, Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; KRYSTAL AMAYA, Real Party in Interest.
Salvino Amaya, in pro. per., for Petitioner.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Merced County. No. 17FL-01719 Brian L. McCabe, Judge. ORIGINAL PROCEEDING in mandate.
Salvino Amaya, in pro. per., for Petitioner.
No appearance by Respondent.
OPINION
POOCHIGIAN, ACTING P. J.
In this family law matter, pro. per. petitioner/appellant Salvino Amaya (Appellant) appeals three orders made by the family court at a November 9, 2022 hearing - an order denying a motion to disqualify minors' counsel ("Motion to Disqualify"), an order continuing a request to modify the operative child custody/visitation order ("Motion to Modify"), and an order continuing a motion to renew a domestic violence restraining order ("Motion to Renew"). Appellant contends that the family court: (1) violated his right to due process by erroneously relying on a prior August 2022 custody order and failing to adequately consider his request for more time with his children; (2) erroneously failed to disqualify the minors' counsel due to counsel's failure to properly advocate for the best interests of the children; (3) erroneously refused to terminate the operative domestic violence restraining order and child custody order because there was no reasonable apprehension of future abuse; and (4) erroneously admitted and considered inadmissible hearsay in making its orders.
Appeals of this kind relating to child custody disputes often present circumstances that are difficult and distressing to an aggrieved parent. Of course, we are mindful of the special relationship between parents and their children. We are also mindful that the law which governs parent-child relationships accounts for society's interest in protecting the rights and relationships associated with the family unit, but also seeks to ascertain the best interests of the children who may be the focus of a family court dispute. It is an important and sobering task for members of our judicial system to review custody orders, and it is a task that we do not take lightly. With these considerations in mind, and under the applicable law and standards of review, we affirm the family court's orders at issue.
In this case, our task is made more challenging by the absence of any filings or appearance by respondent. While respondent was not required to file an opposition, the absence of an opposition and answering reply deprives a reviewing court of one of the tools that helps to focus and crystalize the issues that will ultimately determine the outcome of the appeal.
BACKGROUND
General Background
Appellant Salvino Amaya and respondent Krystal Amaya (Krystal) were married and had five sons together but are now divorced. The oldest son is now 19, and the youngest is about 10. In 2017, Krystal filed applications for a domestic violence restraining order and a child custody order. Since 2017, there have been several restraining orders and custody/visitation orders entered in the matter. The children have been represented by a court appointed minors' counsel since June 2020.
Pre-November 2022 Events
On February 1, 2022, Krystal sought full custody of the children (custody had previously been split 50/50) and another domestic violence restraining order. Her requests were granted on an ex parte basis. Subsequent hearings considered children's interviews and "Child Custody Recommending Counseling" recommendations. As a result of these hearings, parameters for Appellant to communicate with his children and Krystal were established and supervised visitations between Appellant and his children were ordered.
On October 10, 2022, minors' counsel filed the Motion to Modify, and Appellant filed motions to disqualify the family court judge and the minors' counsel.
On October 21, 2022, the motion to disqualify the family court judge was denied by the Tuolumne County Superior Court.
On October 27, 2022, Krystal filed the Motion to Renew.
November 9, 2022 Hearing
On November 9, 2022, a hearing was held on the Motion to Disqualify, the Motion to Modify, and the Motion to Renew.
This hearing was very contentious. Throughout the hearing, Appellant called the proceedings and the family court judge unfair, interrupted the family court judge, made a statement that the family court judge felt was a threat, and called the family court judge and the proceedings "a joke."
Motion to Disqualify
With respect to the Motion to Disqualify, minors' counsel responded that she had not made any request or recommendation to the family court that varied from the minors' requests and that Appellant had not established bias or any grounds for removal. Appellant argued in essence that his youngest son vocalized to him that he wished to see Appellant, that counsel had not validated the youngest son's wishes, that counsel improperly stated that there were criminal charges against Appellant, counsel does not act as an advocate for his youngest son's wishes, counsel is turning Appellant into an absent father, and counsel did nothing when Krystal told the eldest son that Appellant was not his biological father. The court responded that, although Appellant stated he wanted fairness, in fact Appellant wanted "50 percent of the children," unfettered access to the children without supervision, and to be excused from complying with the operative August 2022 custody/visitation order. The court noted that Appellant had legal remedies through an appeal of the August 2022 custody/visitation order, but Appellant failed to appeal. The court then explained that minors' counsel is able to advocate what she believes is in the children's best interest, even if that is not what the children want. Because the court viewed Appellant as restating his positions relating to the August 2022 order, and because the court found there were no facts articulated that demonstrated bias, the court denied the Motion to Disqualify.
Motion to Modify
With respect to the Motion to Modify by minors' counsel, the family court explained that the motion indicated it was brought because the third-party visitation supervisor was no longer willing to provide services to Appellant because staff complained of abusive and insulting comments made by Appellant. The court explained to Appellant that Appellant had not been able to see his son because the visits must be supervised, and the supervisor was no longer willing to supervise any visits. Minors' counsel then explained that there were no other facilities in Merced that could provide supervision. The court recognized that the custody/visitation order required supervised visitations, but without a supervisor, there could be no visitation. After hearing about other facilities and possibilities in other areas, the court ordered minors' counsel to contact other facilities and see who could provide supervision services in the Merced area. The court set a further hearing for December 5, 2022, for the minors' counsel to report her findings.
Motion to Renew
With respect to Krystal's Motion to Renew, the family court noted that the time for service or hearing was shortened, and Appellant had not filed a response or opposition. The court explained that setting a further hearing would give Appellant the opportunity to respond. Appellant argued that he and Krystal do not go near each other and that there has never been any domestic violence. The court did not address the substance of Appellant's arguments, but set a further hearing for December 5, 2022, so Appellant could provide a formal written opposition.
Resulting Order
A "Findings and Order After Hearing" was filed on November 18, 2022. The findings and order read in relevant part: (1) denied Appellant's "motion to disqualify minors' counsel and finds there is no bias on minors' counsel's part"; (2) ordered that the August 2022 custody and visitation order remained in force "with the following modification: Family Behavioral Health declines to provide supervised visitation between Father and [youngest child]. Minor's counsel shall find substitute supervisor options and present these options to the Court at the next hearing"; and (3) continued "the matter of extending the Domestic Violence Restraining Order and ordering supervised visitation between [Appellant] and [the youngest child]."
Appeal and Continued Hearing
On December 2, 2022, Appellant filed a notice of appeal as to the "findings &order after hearing [of November 2022]."
An entry on the "Register of Actions" shows a hearing was held on December 5, 2022, on the matters set by the family court during the November 9, 2022 hearing. The register's entry indicates that Appellant did not attend the hearing. The entry also indicates that the court granted the Motion to Renew and renewed the restraining order for five years. Also, in an effort to find a local facility to supervise visitations between Appellant and his children, a further hearing was set on the Motion to Modify.
DISCUSSION
I. Appealability
The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Maralle (1994) 8 Cal.4th 121, 126; see Sanchez v. Westlake Services, LLC (2022) 73 Cal.App.5th 1100, 1105 (Sanchez).) Since the question of appealability goes to the jurisdiction of an appellate court, appellate courts must consider the issue on their own motion whenever doubt exists. (Jennings, at p. 126; Kirk v. Ratner (2022) 74 Cal.App.5th 1052, 1060; see also Westmoreland v. Kindercare Education LLC (2023) 90 Cal.App.5th 967, 974.) The appellant bears the burden of establishing appealability or appellate jurisdiction. (Brown v. Upside Gading, LP (2019) 42 Cal.App.5th 140, 144.)
In this case, Appellant's notice of appeal states that he is appealing the orders made during the November 9, 2022, hearing ("November Hearing"), which was a "judgment after court trial." Appellant's opening brief generally cites Code of Civil Procedure section 904.1, subdivision (a), and states he is appealing a final order after hearing. As outlined above, the family court made three relevant orders as part of the November Hearing. We will separately assess each of these orders.
A. Legal Standards
By statute, an appeal may be taken from, among other things, a final noninterlocutory judgment, (see Code Civ. Proc., § 904.1, subd. (a)(1)), or an order made after a final noninterlocutory judgment. (See id., subd. (a)(2).) With respect to section 904.1, subdivision (a)(1)," '[a] judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." '" (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.) It is the substance of a decree, not its form, that determines whether it is final and appealable. (Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115 (Dhillon); Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 698 (Griset).) The test, which must be adapted to the circumstances of each case, is whether there are any issues left for further determination or consideration except for the issues of compliance or noncompliance. (Dhillon, at p. 1115; Griset, at p. 698.) With respect to section 904.1, subdivision (a)(2), "not every postjudgment order that follows a final appealable judgment is appealable." (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651 (Lakin); In re Marriage of Deal (2022) 80 Cal.App.5th 71, 78 (Marriage of Deal).) To be appealable, a postjudgment order must follow a final judgment and satisfy two additional requirements: (1) the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment; and (2) the order must either affect the judgment or relate to it by enforcing it or staying its execution. (See Lakin, at pp. 651-652; Marriage of Deal, at p. 78.)
Under the common law, appeals may also be taken of certain collateral matters. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368; Sanchez, supra, 73 Cal.App.5th at p. 1107; Drum v. Superior Court (2006) 139 Cal.App.4th 845, 850.) "When a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act, direct appeal may be taken." (In re Marriage of Skelley, at p. 368; Sanchez, at p. 1107; see Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.) Therefore, an appealable collateral order is one that is: (1) a final determination, (2) of a collateral matter, (3) that direct the payment of money or performance of an act. (Sanchez, at p. 1107.)
" 'An attempt to appeal from a nonappealable order does not give [an appellate] court jurisdiction or authority to review it.'" (Manlin v. Milner (2022) 82 Cal.App.5th 1004, 1022 (Manlin); see Warwick California Corp. v. Applied Underwriters, Inc. (2020) 44 Cal.App.5th 67, 72 (Warwick).) However, in appropriate circumstances, appellate courts have the discretion to treat an appeal from a nonappealable order as a petition for an extraordinary writ. (Olson v. Cory (1983) 35 Cal.3d 390, 400; Manlin, at p. 1022; Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th 1, 10.) This discretion is reserved for unusual cases so as not to encourage litigants to routinely appeal nonappealable orders. (See Olson, at p. 401; Warwick, at pp. 74-75; Williams v. Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072.) It has been recognized that orders regarding attorney disqualification are uniquely suitable for review through a petition for an extraordinary writ because of the general importance of the issue involved and the relative speed at which such writs are resolved. (See Castaneda v. Superior Court (2015) 237 Cal.App.4th 1434, 1442; Reed v. Superior Court (2001) 92 Cal.App.4th 448, 445; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group (2023)) ¶ 2:133.1 (Eisenberg).)
B. Discussion
The reporter's transcript and the "Orders and Findings After Hearing" both clearly show that the family court made no substantive orders regarding the minors' counsel's Motion to Modify and Krystal's Motion to Renew. Instead, the court continued those matters to December 5, 2022. The continuance by its very nature could not and did not finally resolve any issues between the parties, (cf. Dhillon, supra, 2 Cal.5th at p. 1115 [setting the test for a final judgment]), nor could the continuances have affected or been related to a final judgment that may have previously been entered - they related solely to the pending motions. (Cf. Lakin, supra, 6 Cal.4th at pp. 651-652 [setting the test for a postjudgment appealable order].) Therefore, the orders continuing the Motion to Modify and Motion to Renew are not appealable orders. (See Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 863, fn. 1 [an order granting a continuance is a nonappealable order]; Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1007 [same].) As nonappealable orders, we lack jurisdiction to review the continuances. (Manlin, supra, 82 Cal.App.5th at p. 1022; Warwick, supra, 44 Cal.App.5th at p. 72; see also Jennings v. Maralle, supra, 8 Cal.4th at p. 126.)
With respect to the order on the Motion to Disqualify, after the family court denied this motion, the Motion to Modify and the Motion to Renew remained pending and were set for a further hearing in December 2022. Because these two motions remained pending, the order denying disqualification did not and could not resolve all outstanding issues between the parties in the case. Therefore, the order denying disqualification of minors' counsel is not a final judgment for purposes of section 904.1, subdivision (a)(1). (Dhillon, supra, 2 Cal.5th at p. 1115; cf. Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1378 [finding that an order after a contested hearing was a final judgment because it resolved the issues raised in the complaint].)
It is possible that the family court may have previously issued an order that resolved all then outstanding issues, with the only issue left open being that of compliance. (Cf. Dhillon, supra, 2 Cal.5th at p. 1115 [explaining the test for a final judgment].) If we assume that there is a "final judgment" somewhere in the near sevenyear history of this case, we cannot conclude that the order denying disqualification was an appealable postjudgment order. Given the nature of the case, a final order would involve a domestic violence restraining order and a child custody visitation order. However, disqualifying the minors' counsel would only remove counsel, it would not affect or alter any terms and conditions of any other orders. Therefore, given the state of the record before us, the order denying the Motion to Disqualify cannot be a postjudgment appealable order. (See Lakin, supra, 6 Cal.4th at pp. 651-652.)
Although it is clear that the order denying disqualification is not appealable as a final judgment or a postjudgment order, whether the order is appealable through other theories is less clear. Some cases hold "orders granting or denying attorney disqualification motions are immediately appealable." (URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 878; see also Costello v. Buckley (2016) 245 Cal.App.4th 748, 752.) Other cases rely on Meehan v. Hopps (1955) 45 Cal.2d 213 and hold that orders on attorney disqualification are appealable as final collateral orders. (E.g., URS Corp. v. Atkinson/Walsh Joint Venture, at p. 880; Henricksen v. Great American Savings &Loan (1992) 11 Cal.App.4th 109, 111, fn. 1.) Through this authority, the denial of the motion to disqualify is an appealable order over which we have jurisdiction.
However, while still recognizing appealability, a leading treatise explains: "An order granting or denying a motion to disqualify ("recuse") counsel due to an alleged conflict of interest or other violation of the Rules of Professional Conduct is appealable as an injunction order." (Eisenberg, supra, at ¶ 2:133.1.) The treatise also notes that some case law has addressed Meehan and expressed skepticism about applying the collateral order doctrine to an order denying a motion to disqualify. (Ibid.; see also Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882-883; Efron v. Kalmanovitz (1960) 185 Cal.App.2d 149, 156.) These cases recognize in part that an order denying attorney disqualification does not actually meet the third element of the collateral order doctrine in that it does not order an appellant to pay money or perform an act. (Machado, at pp. 882-883; Efron, at p. 156). Through this authority, the Disqualification Order does not appear appealable. The record indicates Appellant argued that minors' counsel failed to perform duties mandated by Family Code section 3151, subdivision (a). There are no allegations that the minors' counsel had a conflict of interest under Rule of Professional Conduct, rule 1.7, or that she violated another provision of the Rules of Professional Conduct. Further, because the order denied disqualification and did not require Appellant to pay or do anything, it is arguable that the order is not appealable as a collateral order as explained in Machado and Efron.
From the above, the appealability of the motion to disqualify is uncertain. Further, the appeal has been pending since December 2022, the appeal is fully briefed, no other parties apart from Appellant have filed anything, and the propriety of the minor's legal representation in the midst of a child custody dispute is an important issue. Finally, orders regarding attorney disqualification are uniquely suitable for review through a petition for an extraordinary writ because of the general importance of the issue involved and the relative speed at which such writs are resolved. (See Castaneda v. Superior Court, supra, 237 Cal.App.4th at p. 1442; Reed v. Superior Court, supra, 92 Cal.App.4th at p. 445; Rutter, supra, ¶ 2:133:2.) Given these considerations, we are satisfied that the particular circumstances in this case warrant converting Appellant's appeal into a petition for an extraordinary writ. (See Olson v. Cory, supra, 35 Cal.3d at p. 400; Manlin, supra, 82 Cal.App.5th at p. 1022; Cortez v. Doty Bros. Equipment Co., supra, 15 Cal.App.5th at p. 10.)
II. Merits of Appellant's Challenges
A. Arguments
Appellant argues that the family court committed four errors, and he requests that we remand the matter for the court to hold an evidentiary hearing on the child custody and the domestic violence restraining orders. First, Appellant argues that the trial court violated due process by conducting an abbreviated hearing that considered and relied on inadmissible hearsay evidence, relied on the August 2022 custody and visitation order, and did not consider his two arguments that his youngest son wanted to see him and Krystal's allegations against him were unfounded. Second, minors' counsel was not performing her duties to advocate for the best interest of the children because she did not gather evidence of and communicate the youngest son's desire to see Appellant, and she did not address Krystal's harmful revelation of nonpaternity to the eldest son. Third, the court erred by permitting minors' counsel to convey prejudicial hearsay statements about Appellant's alleged behavior from the visitation supervisor's staff. Finally, the court erred by failing to drop the domestic violence restraining order because Krystal had not submitted any evidence of a reasonable apprehension of future abuse.
Appellant has attached to his opening brief a copy of a Child Protective Services report that was completed on December 27, 2022. Appellant also references this report in his opening brief. The report investigated an incident between Appellant and his two eldest sons on January 31, 2022, and determined that allegations of physical abuse and risk were inconclusive. The report post-dates the November Hearing (as well as the December 5, 2022 hearing). Because the report did not exist at the time of the November Hearing, the report could not have influenced that hearing in any way. Therefore, the report is irrelevant to this appeal, and we will not consider it further.
B. Legal Standards
1. Hearsay
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) That is, "a hearsay statement is one in which a person makes a factual assertion out of court and the proponent seeks to rely on the statement to prove that assertion is true." (People v. Sanchez (2016) 63 Cal.4th 665, 674.) A statement" 'offered for some purpose other than to prove the fact stated therein is not hearsay.'" (Ibid.) "The standard for prejudice applicable to state law error in admitting hearsay evidence is whether it is reasonably probable the appellant would have obtained a more favorable result absent the error." (Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1286, fn. omitted; see Elsworth v. Beech Aircraft Corp. (1984) 37 Cal.3d 540, 554.) The failure to make a hearsay objection forfeits the alleged error. (Evid. Code, § 353, subd. (a); Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 725; In re C.B. (2010) 190 Cal.App.4th 102, 132.)
2. Continuances
Courts have the inherent authority to continue the motions and matters before them. (Curtis v. Underwood (1894) 101 Cal. 661, 669; Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 526.) Lower courts enjoy broad discretion to grant or deny a continuance. (Estate of Smith (1973) 9 Cal.3d 74, 81; People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 153-154 (ConAgra); Taylor v. Bell, supra, 21 Cal.App.3d at p. 1008.) As such, the decision to grant or deny a continuance is reviewed for an abuse of discretion. (Estate of Smith, at p. 81; ConAgra, at p. 154.) "[S]ince it is impossible to foresee or predict all of the vicissitudes that may occur in the course of a contested proceeding [citation], the determination of a request for a continuance must be based upon the facts and circumstances of the case as they exist at the time of the determination." (Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 343.) Courts have recognized that"' "it is practically impossible to show reversible error in the granting of a continuance." '" (Bussard v. Department of Motor Vehicles, supra, 164 Cal.App.4th at p. 863, fn. 1; see Taylor v. Bell, at p. 1008.)
3. Minor's Counsel &Disqualification/Removal
"If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding ._" (Fam. Code, § 3150, subd. (a); In re Marriage of Metzger (2014) 224 Cal.App.4th 1441, 1446 (Marriage of Metzger); see also A.F. v. Jeffrey F. (2023) 90 Cal.App.5th 671, 683.) Once appointed, a minor's counsel "is charged with the representation of the child's best interests." (Fam. Code, § 3151, subd. (a); A.F., at p. 683; Marriage of Metzger, at p. 1446.) The minor's counsel is required "to gather evidence that bears on the best interests of the child," including through interviews with the child, and to "present that admissible evidence to the court ._" (Fam. Code, § 3151, subd. (a); Marriage of Metzger, at p. 1446; see also A.F., at p. 683.) Further, "[i]f the child so desires, the child's counsel shall present the child's wishes to the court." (Fam. Code, § 3051, subd. (a); A.F., at p. 683.) By making separate references to "best interests" and "wishes," the Family Code contemplates that the child's wishes, and the child's best interests may not always align. (A.F., at p. 683.) An appointed minor's counsel "shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause." (Fam. Code, § 3050, subd. (b).)
In general, the removal or disqualification of an attorney is reviewed for an abuse of discretion. (See In re Charlisse C. (2008) 45 Cal.4th 145, 159; People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee).) "As to disputed factual issues, a reviewing court's role is simply to determine whether substantial evidence supports the trial court's findings of fact; 'the reviewing court should not substitute its judgement for ... express or implied [factual] findings [that are] supported by substantial evidence. [Citations.]'" (In re Charlisse C. at p. 159; see SpeeDee at p. 1145.)" '[T]he judgment of the lower court is presumed correct and all intendments and presumptions are indulged to support it on matters as to which the record is silent.'" (Victaulic Co. v. American Home Assurance Co. (2022) 80 Cal.App.5th 485, 491 (Victaulic Co.).
C. Analysis
1. Hearsay Evidence
The statements at issue were those made by the staff of the third party visitation supervisor. Specifically, minor's counsel relayed that third party visitation staff had said that Appellant was abusive and insulting, which led to the visitation supervisor refusing to provide services to Appellant. We detect no error by the family court.
First, Appellant failed to make a hearsay objection. As a result, Appellant has forfeited any alleged error. (Evid. Code, § 353, subd. (a); Duronslet v. Kamps, supra, 203 Cal.App.4th at p. 725; In re C.B., supra, 190 Cal.App.4th at p. 132.)
Second, the reporter's transcript does not show that minors' counsel relayed the statements of the supervisor's staff in order to show that Appellant was actually abusive and insulting to staff. Rather, the importance and relevance of the statements in relation to the motion to modify, and the reasons for which the statements appear to have been provided, were to: (1) establish the fact that the only local visitation supervisor refused to provide services to Appellant, and (2) explain the reason given by the visitation supervisor for its refusal to provide services. Appellant does not contest that the visitation supervisor refused to provide him service. Thus, since the statements at issue were not submitted in order to establish the truth of the matter stated, i.e., that Appellant was in fact abusive and insulting to staff, they were not inadmissible hearsay. (People v. Sanchez, supra, 63 Cal.4th at p. 674.)
Finally, assuming the admission of inadmissible hearsay, the family court did not utilize this information as a basis to grant or deny any motion at the November Hearing. Rather, the court took the information provided and used it as the basis to continue the Motion to Modify so that minors' counsel could attempt to find a different local visitation supervisor. Attempting to find ways of complying with the operative supervised visitation requirement is appropriate. To the extent that hearsay statements attributed to the supervisor's staff were admitted at the November Hearing, we detect no reasonable probability of a more favorable result for Appellant. Therefore, the admission of the alleged hearsay was harmless. (See Elsworth v. Beech Aircraft Corp., supra, 37 Cal.3d at p. 554; Conservatorship of K.W., supra, 13 Cal.App.5th at p. 1286.)
2. Continuances
As explained above, the family court made no substantive rulings regarding the Motion to Modify and the Motion to Renew. The court continued the Motion to Modify in order for minors' counsel to attempt to find a new visitation supervisor who would supervise a visitation with Appellant and his youngest son. The court continued the Motion to Renew mainly to give Appellant the opportunity to submit in writing a reasoned response and opposition. Clearly, Appellant would have preferred for the court to rule on the substance of each of these matters at that time. However, the court has broad discretion regarding continuances, (Estate of Smith, supra, 9 Cal.3d at p. 81), and has the inherent authority to continue the matters before it. (Mai v. HKT Cal, Inc., supra, 66 Cal.App.5th at p. 526.) Given the absence of a formal written opposition by Appellant, as well as the desire to find a local visitation supervisor who could supervise a visit between Appellant and his youngest son, the court's continuances of approximately four weeks were not an abuse of discretion. (Estate of Smith, at p. 81; Mai v. HKT Cal, Inc., at p. 526; Taylor v. Bell, supra, 21 Cal.App.3d at pp. 1007-1008.)
3. Order Denying Disqualification
The family court found no bias or basis to remove the minors' counsel. Appellant essentially contends that the minors' counsel's failure to gather evidence and relay that the youngest son wished to see him, and the failure to do anything about Krystal's disclosure of nonpaternity to the eldest son, show sufficient cause for removal or disqualification. We disagree.
We note that, despite Appellant's arguments to the contrary, the family court did not simply deny this (or any) motion by relying on the prior August 2022 custody order. As described above, the court explained that it perceived Appellant to be complaining mostly about the August 2022 order, but that the time to appeal that order had passed. The court then explained that a minor's counsel is not required to advocate for what a child wants and that there was an insufficient showing of bias to justify removal. Therefore, the court addressed the primary argument being made by Appellant and found that bias had not been adequately shown; references to the August 2022 order were one part of the court's response to Appellant.
With respect to the youngest son's wishes, the family court heard Appellant repeatedly state that his youngest son said he wished to see him. The family court also heard minors' counsel state that her representations to the court did not vary from what her clients wished, which would include the youngest son. Appellant is correct that minors' counsel was obligated to inform the court of the youngest son's wishes if the youngest son so desired. (Fam. Code, § 3151, subd. (a); A.F. v. Jeffrey F., supra, 90 Cal.App.5th at p. 683.) However, considering the attempts by the court and minors' counsel to find a new visitation supervisor, it is possible to reconcile the representations of Appellant and minors' counsel by concluding that the youngest son may have wished to see Appellant as part of a supervised visit. This view of the evidence is consistent with the record before us, would be a fulfillment of minors' counsel's obligations under Family Code section 3151, subdivision (a), and would not represent cause to remove minors' counsel. In the absence of sufficient contrary evidence in the record, this is how we must view the trial court's implicit ruling that minors' counsel's representation of the youngest son did not justify removal or disqualification. (Victaulic Co., supra, 80 Cal.App.5th at p. 491 [judgment of the court is presumed correct and all intendments in support of the court's actions are presumed].)
We note that minor's counsel did not identify any specific statements or wishes that the youngest son may have expressed to her, nor did the family court ask minor's counsel what wishes the youngest son may have vocalized. Under the circumstances of this case, we would generally expect such information or inquiry to be reflected in the reporter's transcript. Nevertheless, given the applicable standard of review, as well as the actual statements of the minor's counsel, we cannot conclude that the minor's counsel has breached any legal duty.
With respect to the disclosure of nonpaternity, Krystal disclosed to a then 17-year-old boy (the eldest son) that Appellant was not his biological father. Disclosure of nonpaternity is obviously a complex and difficult issue. That Krystal, the eldest son's biological mother, chose to reveal this information is clearly a matter of her parental prerogative. The role of minors' counsel is to advocate for the best interests of the minors in a custody or visitation proceeding, (Fam. Code, § 3151, subd. (a)), it is not to monitor when sensitive aspects of family history are disclosed to the children. It is unclear what minors' counsel could have done about the disclosure, or how the disclosure actually affects the custody and visitation issues pending in the case. Moreover, while we understand Appellant's frustration that the information was disclosed, Appellant's assessment of the situation does not necessarily reflect the best interests of the children. While we do not believe that Appellant is prohibited from explaining what he believes the best interests are, minors' counsel also has a duty to attempt to determine what the bests interests are and to advocate accordingly. (Ibid.) There is no requirement that the Appellant's assessment of best interest coincide with minors' counsel's assessment. Given the information in the record and the complexity of the situation, it is not apparent that any actions or inactions by the minors' counsel regarding the nonpaternity disclosure was contrary to the eldest son's best interest.
For these reasons, the record does not show that the family court abused its discretion by failing to disqualify or remove minors' counsel. (In re Charlisse C., supra, 45 Cal.4th at p. 159; Victaulic Co., supra, 80 Cal.App.5th at p. 505.)
We note that at oral argument, Appellant spent a substantial portion of his argument discussing issues relating to a domestic violence restraining order and the operative child custody order. However, the issues that were actually appealed relate to the rulings at the November Hearing. As the only issues that were properly appealed to us, we have addressed only those rulings made at the November Hearing. We do not express any opinions regarding the domestic violence restraining order or the operative child custody order. If Appellant has new evidence or circumstances exist that could cause the family court to reconsider or modify its prior orders, Appellant should present that new evidence or explain the circumstances, and of course appropriate supporting arguments, at a relevant proceeding and/or through a formal motion to modify or reconsider, as may be appropriate.
The appeal is converted to a petition for extraordinary writ. The petition is denied. The parties are to bear their own costs of appeal.
WE CONCUR: DETJEN, J., MEEHAN, J.