Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. J216316-21. A. Rex Victor, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant S.E.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant T.E.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Shirley and Renee, two guardians of six children, appeal from a contested dispositional hearing at which the juvenile court removed custody of the children from their care, denied reunification services to the guardians, and terminated the guardianship. The six children had been in the care of the guardians for approximately 10 years, during which time the children had been subjected to extensive abuse and cruelty.
Renee and all of the children had alternate names used variously throughout the record and we are using the names most commonly used for each individual.
The guardians argue that (1) the juvenile court abused its discretion to deny a continuance of the disposition hearing to permit counsel to listen to a recording of a later interview with the youngest female child who had originally denied being aware of any abuse in the home but later made disclosures, and (2) the jurisdictional and dispositional orders are reversible because the minors needed, but did not have, separate counsel. We disagree and affirm.
BACKGROUND
Shirley and Milton E. became the legal guardians of six children in 1997, when their mother began serving a sentence. Milton was the pastor of a sect of Sabbatarians and his family was extremely religious. Milton died in 2006, and Renee, the daughter of Shirley and Milton, became co-guardian in 2005.
On July 9, 2007, the San Bernardino Department of Children’s Services (DCS) received a referral about E.A., age 15, who had run away from the home of his guardians, Shirley and Renee, after being tied to his bed, beaten with a belt, and locked in a room with a bucket (in lieu of access to a bathroom with plumbing) and a fan. A DCS social worker responded to the referral on July 24, 2007, and investigated the compound where the minors and guardians lived, noticing that E.A.’s bedroom had a lock on the outside of the door only. The guardians showed the social worker the grounds, but denied locking E.A. in his room, denied any abuse, and since no other children disclosed abuse, the social worker left.
Two days later, however, another referral came from the children’s biological maternal grandmother, reporting that K.A., the oldest girl, had been in a fight with Renee and was ready to tell the truth about the guardians. K.A. had an altercation with Renee about a telephone bill during which K.A. was struck in the face by Renee, causing a black eye, and pushed into an entertainment center. K.A. was also molested by Shirley’s husband, Milton, before his death in 2006.
During the 10 years that K.A., E.A., L.A., and M.A.—the four oldest children—were in the custody of the guardians, they were abused in numerous ways, too numerous to recount in full. The abuse included, but was not limited to: being locked in their rooms for days, with only a fan and a bucket (to urinate and defecate in) until they would confess to sexual activity with each other; being starved because God told Shirley not to feed Satan or Satan’s helpers; holding their hands over the flame of a stove burner until the children confessed to sexual acts they did not commit; starving them for days and weeks; telling the children repeatedly they were evil and were bred for sex; forcing a hotdog down the throat of L.A. and in her vagina; poking L.A. with a knife in her vaginal area; spanked the children with belts, boards, frying pans and extension cords; being burned with a curling iron; and hanging L.A. by the neck with a rope for over an hour to make her confess to pushing her youngest sibling, R.A., because God told Shirley to “punish [L.A.] like Jesus died.” In addition, all the children were homeschooled by the guardians, at the same grade level as the youngest child. The two youngest children denied they were abused, but eventually acknowledged the abuse of their older siblings.
Dependency petitions were filed on behalf of the six children, which, as amended, alleged physical abuse (Welf. & Inst. Code, § 300, subd. (a) ), neglect (§ 300, subd. (b)), emotional abuse (§ 300, subd. (c)), lack of support (§ 300, subd. (g)-as to the parents only), cruelty (§ 300, subd. (i)), and abuse of a sibling. (§ 300, subd. (j).)
Except where otherwise indicated, all further statutory references will be to the Welfare and Institutions Code.
On November 16, 2007, the contested jurisdiction hearing took place. The children’s parents submitted on the reports, but the guardians contested the allegations. At the conclusion of the testimony of the pediatrician who had examined the children and prepared forensic evaluations of them, the guardians agreed to submit on that testimony as well as the social workers reports and attachments, for purposes of determining jurisdiction.
The guardians agreed to the termination of the guardianship as to the four older children, but requested a contested disposition hearing for the purpose of arguing whether the guardianship as to the two youngest children—R.A. and C.A.—should be terminated, and whether the guardians should be provided with reunification services as to those two children. The parties also stipulated that all the evidence presented thus far would be considered for purposes of determining the proper disposition.
The court made true findings on all the jurisdictional allegations, terminated the guardianship as to K.A., E.A., L.A., and M.A. A contested disposition hearing was held on December 13, 2007. The court removed the children from the physical custody of the guardians, ordered reunification services for the parents, but denied reunification services to guardians, and terminated the guardianships. The guardians appealed.
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion In Denying a Second Continuance of the Disposition Hearing Where No Good Cause Was Shown For Failing to Obtain Discovery and Where the Minor’s Presence at the Hearing Was Not Requested.
The guardians argue that the trial court abused its discretion in denying a continuance of the disposition hearing because the two youngest minors were not present and to permit them to obtain copies of the recordings of the most recent interview with R.A. We disagree.
The juvenile court may continue a dependency hearing for good cause and only for the time shown to be necessary. (§ 352, subd. (a).) Section 352 precludes a juvenile court from granting a continuance where it is contrary to the best interests of the minor. (In re Michael R. (1992) 5 Cal.App.4th 687, 694.) The statutory policy has been interpreted as an express discouragement of continuances. (In re Karla C. (2003) 113 Cal.App.4th 166, 179.) Moreover, the juvenile court is required to ensure that the hearing is adjudicated and concluded, under ordinary circumstances, within 60 days of detention. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) In any event, a denial of a request for a continuance will not be reversed absent an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
The record does not demonstrate an abuse of discretion. The detention hearing was held on August 1, 2007, when the juvenile court ordered the children removed from the physical custody of the guardians. The jurisdiction hearing was not conducted until November 16, 2007. The disposition hearing was held on December 13, 2007, 134 days after the hearing at which the minor was ordered removed or detained. (§ 352, subd. (b).) Further continuance was barred absent exceptional circumstances.
We cannot find exceptional circumstances where the guardians failed to timely request production of the actual recording of the Children’s Assessment Center (CAC) interview, and failed to seek an order that the minors be made available to testify. A submission on reports constitutes an agreement that the particular evidence will be the only evidence in the matter. (In re Richard K. (1994) 25 Cal.App.4th 580, 589.) Thus, a party who submits on the basis of reports and testimony previously admitted acquiesces as to the state of the evidence. (Ibid.) Any claim of error was forfeited by the guardians’ failure to seek production of evidence timely and to secure the attendance of witnesses. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
The information relating to R.A.’s change of position regarding reunifying with her guardians was provided to counsel for the guardians in the minute order of a nonappearance review hearing dated November 26, 2007. That minute order reflects that the information had been provided to all counsel—including counsel for the guardians—on November 21, 2007. On November 29, 2007, DCS filed its Fifth Addendum to the Jurisdiction/Disposition Report, repeating the same information. This report indicated that C.A. also refused to visit with the guardians.
Despite being informed of the second interview by the CAC on November 21, 2007, neither guardian requested production of the recording of the interview at the originally scheduled disposition hearing on December 10, 2007, although counsel did request a continuance due to the guardian’s medical condition. Neither guardian requested that the two youngest children be present for the continued hearing. Minors’ counsel informed the court that neither of his clients was interested in returning to the guardians.
At the December 13, 2007, hearing, counsel for the guardians indicated they thought the children would be produced because they were listed as witnesses “in a prior order.” However, the record does not support this assertion. Although county counsel had indicated the minors might be witnesses in its at-issue memorandum, no party sought the attendance of the children for the jurisdiction hearing at the first pretrial settlement conference, and there was no order that the children be ordered to appear. Nor was any attempt made to secure their attendance in any later proceeding, although at the next pretrial settlement conference, counsel for one of the guardians informed the court that the guardians “were going to be calling the minors” as witnesses. But they never actually did.
It is significant that the guardians decided to submit on the reports after the testimony of the pediatrician who conducted the forensic examinations of the children, because the agreement included a stipulation that the evidence presented up to that point in the jurisdiction hearing would be considered for dispositional purposes. The court confirmed that “[t]he witnesses we would anticipate at that hearing [disposition] would be the guardians and the social worker”, to which counsel for both guardians agreed.
By agreeing that the evidence to be presented at the disposition hearing would be limited to the testimony of the social worker and one or both of the guardians, and by failing to request the appearance of the minors, the guardians waived any right to have them made available. There was no abuse of discretion.
2. Absent a Timely Request to Disqualify Minors’ Counsel, or a Showing of an Actual Conflict of Interest, Lack of Separate Counsel for the Minors Does Not Require Reversal.
The guardians also argue that the judgment must be reversed because the juvenile court should have appointed separate counsel for the children. Respondent argues the guardians lack standing to raise this issue. We do not need to address standing because we find any error was waived by the guardians’ failure to object.
A minor’s right to appointed counsel in dependency proceedings is guaranteed by statute. (§ 317.) The juvenile court should initially appoint a single attorney unless there is an actual conflict of interest or a reasonable likelihood that an actual conflict of interest would develop. (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.) If an appointed attorney is representing multiple minors in a dependency proceeding, and an actual conflict of interest between the minors arises, the attorney is obliged to withdraw from representing the clients, and the court is required to relieve the attorney and appoint new counsel. (Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1428.) A conflict arises where the minors’ counsel seeks a course of action for one child with adverse consequences to the other. (In re Barbara R., supra, at p. 953.)
The guardians rely in In re Zamer G. (2007) 153 Cal.App.4th 1253, in arguing that the substantial evidence standard of review should be applied on review. However, that standard of review governs review of a court ruling on a timely motion to disqualify minors’ counsel. (Id. at pp. 1262-1263.) There was no motion to disqualify minors’ counsel here. In fact, the only mention of a potential (as opposed to an actual conflict of interest) was raised by minors’ counsel months prior to the jurisdictional or dispositional hearing. However, at the next hearing, which took place more than two months prior to the contested jurisdiction hearing, minors’ counsel informed the juvenile court he did not have a conflict of interest. No one objected at that time.
Neither guardian sought recusal or disqualification of minors’ counsel at the jurisdictional hearing or at the dispositional hearing. In dependency litigation, nonjurisdictional issues must be the subject of objection or appropriate motions in the juvenile court, or else they are deemed waived. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) The right of the minors to separate counsel is waived if not raised in the juvenile court. (In re Heidi T. (1978) 87 Cal.App.3d 864, 876.)
Even if a timely motion to disqualify minors’ counsel had been made, the result would be the same. Counsel did not present a position at the hearing which was contrary to the minors’ wishes or their best interests.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.