Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK64870. Stanley Genser, Commissioner.
John Cahill, under appointment by the Court of Appeal, for Objector and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel, for Petitioner and Respondent.
ZELON, J.
This is an appeal from the juvenile court’s denial of Appellant Karen P.’s request for a continuance of a contested adjudication hearing. The adjudication hearing was held over a three-day period on a petition filed by Respondent Los Angeles County Department of Children and Family Services (the “DCFS”) pursuant to Welfare and Institutions Code section 300. The petition alleged that Karen was unable to provide regular care and supervision of her six-year-old son, Kyle P., because Karen had a history of mental and emotional problems for which she failed to take prescribed psychotropic medication, and had engaged in an act of domestic violence against her husband, Philip P. On the third day of the adjudication hearing and at the close of the DCFS’s case, Karen asked for a continuance so that she could subpoena various witnesses to testify on her behalf, including her treating psychiatrists. The court denied Karen’s request on the grounds that she had not shown good cause for a continuance. On appeal, Karen argues that the court’s denial of a continuance constituted an abuse of discretion and a deprivation of her due process right to present a defense. Because we find no abuse of discretion or denial of due process in the juvenile court’s ruling, we affirm.
All further statutory references are to the Welfare and Institutions Code.
For clarity and convenience, and not out of disrespect, we refer to the parties by their first names.
FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 2006, police officers were called to the home of Karen and Philip P. in response to a “911” call made by Philip. Philip reported that he and Karen had an argument during which Karen threw a framed picture on the floor causing the glass to shatter, threw Philip’s cell phone as he tried to record their conversation, and ripped the landline phone from the wall. Philip also reported that Karen grabbed him around the back of his neck with both hands. Philip fled the home and called “911.” The couple’s six-year-old son, Kyle, was present in the home during the physical altercation, but he did not personally witness it. After the police arrived, Karen was arrested for causing damage to a phone line to prevent Philip from calling the police. The following day, the matter was referred to the DCFS for an investigation of alleged emotional abuse of Kyle due to domestic violence in the home.
During the course of its investigation, the DCFS interviewed Kyle, Karen, Philip and Philip’s sister. Kyle stated in his interview that his mother “gets a little crazy in the head” and takes pills to get better. He also reported that his mother does “lots of little horrible stuff,” but he refused to describe what he meant by that statement because it was “too horrible” to say. When asked if he was scared of anything or anyone, Kyle responded that he was scared his mother “will do ultra domestic violence.” Kyle further stated that his mother had told him that “she’s gonna jump off the top building and splat, see all the blood.”
Philip was asked about Karen’s mental health during his interviews with the DCFS. He told the DCFS investigator that Karen was diagnosed with post-partum depression after Kyle’s birth and later was diagnosed with bipolar disorder. He also reported that Karen was currently under the care of a psychiatrist, Dr. Schenkel, and was taking medication, but that recently her behavior had begun to deteriorate. Philip stated that Karen had been depressed a few days before the August 15 incident and had said that she would jump off a building. Philip further stated that prior to their physical altercation on August 15 Karen had defecated in the bathtub of their home and had told Philip that she imagined she was defecating on him and his female friend. According to Philip, during the altercation, Karen grabbed him by the neck with both hands and tried to “strangle” him. After he fled the home, Philip first called Dr. Schenkel’s office and was advised by the on-duty psychiatrist to call the police.
With Philip’s consent, the DCFS also interviewed Philip’s sister who reported that Karen’s “illness has gotten worse.” Philip’s sister stated that Karen recently had been missing her psychiatric appointments and had stopped taking her anti-psychotic medication four months earlier because, according to Karen, she does not have a problem. Philip’s sister also stated that she believes Karen is not stable.
In her interview with the DCFS, Karen denied putting her hands on Philip and denied ripping out the phone line during the August 15 incident. She also denied making any suicidal statements about jumping off a building. Karen told the investigator that she had been diagnosed with bipolar disorder for the past five years. She stated that she currently was taking anti-psychotic medication and receiving treatment from a psychiatrist, Dr. Schenkel, whom Karen reportedly saw every few months and talked to on the telephone often. According to the DCFS investigator, Karen was agitated, restless and angry throughout their interview, and at one point, Karen told the investigator to get out of her home.
With Karen’s consent, the DCFS spoke with Dr. Schenkel on August 23, 2006. Dr. Schenkel reported that he had not seen Karen since May 2006 though he had spoken with her earlier that day. According to Dr. Schenkel, Karen was hostile toward him during their conversation, threatened to sue him, and told him that she would be getting a new psychiatrist.
On August 28, 2006, the DCFS met with Karen and Philip and presented them with a Voluntary Family Reunification Plan. The proposed plan required Karen to move out of the family’s home, to submit herself to a full psychological evaluation, and to follow a psychiatrist’s recommended treatment and medication plan. Karen rejected the DCFS’s plan.
On August 31, 2006, the DCFS filed a section 300 petition, alleging that Kyle was at a substantial risk of harm based on the August 15 incident of domestic violence between Karen and Philip, and Karen’s history of mental and emotional problems for which she failed to take prescribed medication. A detention hearing was held that same day, and Kyle was ordered detained from Karen and released to Philip’s custody. The court then continued the matter for a pre-trial resolution conference on October 3, 2006.
Prior to the October 3, 2006 conference, Karen informed the DCFS that she was being treated by two new psychiatrists, Dr. Monk and Dr. Perry. With Karen’s consent, each psychiatrist provided the DCFS with a report regarding Karen’s mental status. In a letter dated September 14, 2006, Dr. Monk indicated that he began treating Karen earlier that month and had seen her on three occasions. He stated that he found Karen to be of “sound mind, without delusion, of normal affect, of above normal intelligence, informed, able to be grateful and appreciative, and quite rueful about recent events.” Dr. Monk also provided the DCFS with a psychological evaluation of Karen that he had prepared. In a letter dated September 27, 2006, Dr. Perry reported that Karen had been diagnosed with bipolar disorder, that her “last manic episode was [in] 2001,” and that her “mood [had] been notably stable since December 2003.” He also stated that Karen was “medication compliant” and there was “no evidence of major mood symptoms or dangerousness to self or others.” Dr. Perry offered no indication as to when he began treating Karen or how often he treated her. At the time that Dr. Monk and Dr. Perry provided these reports to the DCFS, neither had spoken with the DCFS nor received any information from the DCFS regarding its investigation. In any event, the DCFS included the reports provided by both doctors in its Jurisdiction/Disposition Report filed on October 3, 2006.
On October 3, 2006, the court conducted the pre-trial resolution conference. At the request of Karen’s attorney, the court ordered the DCFS to provide Dr. Monk and Dr. Perry with copies of all case reports, to interview both doctors regarding Karen’s mental status, and to file a supplemental report. The court also continued the matter to October 26, 2006, so that the parties could attend a mediation.
In accordance with the court’s order, the DCFS sent Dr. Monk and Dr. Perry copies of its case reports and thereafter spoke with each psychiatrist. Dr. Monk informed the DCFS that he believed Kyle “would be well off with his mother” and that “she would in no way be dangerous to him.” Dr. Monk provided the DCFS with a supplemental report to this effect. He acknowledged, however, that he had not met with Karen on a regular basis. Dr. Perry provided the DCFS with copies of his notes from three appointments with Karen in September 2006. But Dr. Perry also reported that Karen was not a regular patient and had not attended her scheduled appointments in October. On October 26, 2006, the DCFS filed a supplemental report that included the additional information and documents provided by Dr. Monk and Dr. Perry.
Shortly after the October 3, 2006 conference, Karen contacted the DCFS and requested that the agency refrain from sending any case reports to Dr. Monk or Dr. Perry. Karen stated that she did not see either psychiatrist on a regular basis and asked the DCFS to instead send the reports to a new psychiatrist. However, because the DCFS had been ordered by the court to send the reports to Dr. Monk and Dr. Perry and to interview each doctor, the DCFS did so.
The parties appeared at the continued pre-trial resolution conference on October 26, 2006. At that time, the court continued the matter to October 30, 2006 so that Karen could consider a proposed settlement. The matter was thereafter continued several additional times due to scheduling conflicts, and ultimately, the court set a contested adjudication hearing for December 27, 2006.
At the December 27, 2006 hearing, Karen filed a Substitution of Attorney, seeking to replace her court-appointed attorney with herself. Karen represented that she was an attorney in South Africa and was licensed to practice law in California. The court granted Karen’s request to proceed in pro per, but also ordered Karen’s court-appointed attorney to remain as co-counsel. In addition, the court advised Karen to read the relevant sections of the Welfare and Institutions Code regarding her rights to call and cross-examine witnesses. The court continued the matter to January 16, 2007.
The contested adjudication hearing was held on January 16, 17, and 18, 2007. At the start of the adjudication hearing, the court advised Karen of her rights, including her right to confront and cross-examine witnesses, her right to call witnesses to testify on her behalf, and her right to subpoena witnesses and documents that she believed would be favorable to her defense. Karen stated that she understood those rights and that she was ready to proceed.
On January 16, 2007, Karen called and cross-examined the investigator who had prepared the case reports on behalf of the DCFS. During this examination, Karen sought to challenge the basis of the investigator’s reports, including portions of the reports provided by Dr. Monk and Dr. Perry. In sustaining an objection to a question posed by Karen about the contents of these doctors’ reports, the court stated as follows:
“The reports speak for themselves. Subject to interpretation also. There’s also a question in the court’s mind as to whether or not the psychiatrist knew enough about the case before rendering an opinion, whether they had seen mother sufficiently to form an opinion. I don’t know what their qualifications are as treating physicians or psychiatrists. A lot of this seems to be speculative and general. The reports speak for themselves.”
At the close of the day’s testimony, the court asked the parties how many witnesses remained to testify other than Philip and Karen. Karen responded that there were none.
On January 17, 2007, the DCFS called Philip as a witness. During his testimony, Philip recounted the physical altercation that took place on August 15, 2006. Philip also testified that he had taken photographs of the waste that Karen allegedly left in the bathtub during the August 15 incident. The court received these photographs into evidence. Additionally, Philip testified that he had made a recording of voicemail messages that he reportedly received from Karen after the August 15 incident. This recording also was received into evidence and included the following excerpt: “I will call 911. You have kidnapped my son. And you know what? They won’t believe you . . . I am Nora, the daughter of Gabriel. You shall obey. I am the daughter of God incarnate. Obey me.”
During his testimony, Philip stated that Karen had asked him on few occasions to call her by the name “Nora.”
At the close of the direct examination, the court asked Karen if she had any questions for Philip. Karen responded that she had “a lot of questions,” but was “not in a position to bring [her] questions forward right now.” Karen also stated that she “need[ed] a fair opportunity to collect [her] thoughts and prepare [her] questions” because she was “unaware of the fact that [Philip] was going to do this to [her].” The court reminded Karen that she had been informed that Philip would be testifying and that “this [was] the time for trial.” Karen then proceeded with her cross-examination of Philip and completed her examination the following day.
On January 18, 2007, following the examination of Philip, the DCFS rested its case. The court then asked Karen if she wished to present any evidence. Karen first moved to dismiss the petition on the grounds that the DCFS had not met its burden of proof. The court denied the motion. Karen then requested a continuance of the adjudication hearing, stating as follows:
“I am humbly requesting a continuance because I need to call all of my witnesses to come to this matter. It has been a late decision on my part because I am of the opinion that this – nothing has been proven here.
“The state has not done a thing to prove anything, but obviously the court believes that there are allegations against me. I think that it is in my best interest for myself, my husband, and my child to call all of my doctors. Also, I want permission to conference call my family members in South Africa so that I can lead them or bring them as witnesses. I don’t have thousands and thousands of dollars to fly my family over from South Africa, and I need my doctors and my parents and people that I know to come to this court and give me an opportunity to raise a proper defense.
“I have no intention of just running through my evidence and my case in five minutes. There are very – my rights – maternal rights have been challenged, and I am taking this verdict very seriously. So I am asking the court fully for a continuance so that I have more time to prepare for my defense.”
The court denied the request for a continuance, finding that Karen had not shown good cause for a continuance and stating as follows:
“I will note that it has been almost five months since the case was initiated. Even yesterday I asked who the potential witnesses were, and the mother indicated that it was just the father and herself. She has been acting as her own attorney since mid December. She has a responsibility, since she undertook that role, to represent her best interest appropriately. Taking on that responsibility, there’s no good cause for a continuance.”
Karen continued to argue that she should be granted more time to prepare. She indicated that she initially did not call her doctors as witnesses because it would have been costly to subpoena them to court and have them wait around to testify, but she now believed such testimony was necessary because “the court has been inclined towards the opinion that those [written reports] from those doctors . . . have little worth.” She also stated that she was surprised by Philip’s testimony because he had assured her that he would not testify against her. Karen did not indicate, however, how many witnesses she intended to call, when such witnesses would be available, and what the purpose and substance of their testimony would be.
After her request for a continuance was denied, Karen did not call any witnesses and did not testify on her own behalf. Instead, Karen stated that, although she did have a defense, the court was “not allowing [her] to conduct it the way [she] want[ed] to,” and she had “no option . . . but to say [she] [had] no defense to offer to this court at this stage.” After closing argument, the court took the matter under submission.
On January 30, 2007, the court declared Kyle a dependent child of the court under section 300. Before proceeding to disposition, the court asked Karen if she wanted a contested disposition hearing, but Karen declined. The court then ordered that Kyle be placed in the home of Philip and that Karen be provided family reunification services, including monitored visitation with Kyle. The court also ordered Karen to participate in counseling and take all prescribed psychotropic medications. The matter was set for a six-month review hearing on June 27, 2007. On March 23, 2007, Karen filed a timely appeal.
DISCUSSION
On appeal, Karen makes two related arguments regarding the juvenile court’s denial of her request for a continuance. First, Karen contends that the court’s denial of a continuance constituted an abuse of discretion under two dependency statutes governing continuances – section 352 and section 354. Second, Karen asserts that the court’s denial of a continuance deprived her of her due process right to present a defense to the section 300 petition. We conclude that neither of these arguments has merit, and that the juvenile court did not abuse its discretion or violate due process in denying Karen’s request for a continuance. We accordingly affirm.
I. No Abuse Of Discretion Under Sections 352 And 354
The juvenile dependency system requires that petitions brought under section 300 be heard and decided rapidly. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1241.) By mandating accelerated proceedings, the dependency system “seeks to keep to a minimum the amount of potential detriment to a minor resulting from court delay. [Citation.]” (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.) “‘[D]elay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.’ [Citation.]” (Ibid.) Continuances in dependency cases are therefore discouraged and “should be difficult to obtain.” (Jeff M. v. Superior Court, supra, at p. 1242.) A juvenile court’s denial of a request for a continuance will not be overturned on appeal absent a showing of an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180; In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) “Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]” (In re Karla C., supra, at p. 180.)
Section 352 is the primary statute governing continuances in dependency proceedings. (Renee S. v. Superior Court, supra, 76 Cal.App.4th at p. 194.) It provides that a juvenile court may grant a continuance, but “only upon a showing of good cause” and “only for that period of time shown to be necessary by the evidence presented at the hearing.” (§ 352, subd. (a).) Moreover, no continuance may be granted “that is contrary to the interest of the minor.” (Ibid.) In considering the minor’s interests, the court must “give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (Ibid.) The policy articulated in section 352 has been interpreted as “an express discouragement of continuances. [Citation.]” (In re Karla C., supra, 113 Cal.App.4th at pp. 179-180.)
Here, Karen argues that she demonstrated good cause for a continuance because she “had no way to present an effective defense to the allegations of the petition regarding her mental state but through qualified mental health professionals who had treated and examined her.” With respect to Dr. Monk and Dr. Perry, Karen asserts that she needed these witnesses to testify at the adjudication hearing because the court earlier had expressed doubt as to whether these doctors were sufficiently familiar with the case or with Karen to render a reliable opinion about her mental status. With respect to her other treating physicians, Karen argues that she needed their testimony because the DCFS failed to interview any of these doctors during its investigation even though Karen had signed a release identifying these individuals and authorizing the DCFS to contact them. At most, however, Karen’s argument demonstrates that her doctors may have had information relevant to her mental status and treatment that was not included in the DCFS’s case reports, and thus, that Karen should have called them to testify at the adjudication hearing. It still does not explain why Karen failed to subpoena any of these witnesses in advance of the hearing and why she waited until the close of the DCFS’s case to request a continuance.
First, Karen cannot legitimately claim that she was unaware of her duty to subpoena her doctors to testify at the adjudication hearing. On at least two occasions, Karen was advised of her right to call and cross-examine witnesses. On December 27, 2006, approximately three weeks before the adjudication hearing, the court instructed Karen to review the relevant dependency statutes regarding her right to call witnesses referenced in the case reports. On January 16, 2007, at the start of the adjudication hearing, the court again advised Karen of her right to subpoena witnesses and documents that she believed would be favorable to her position. After advising Karen of these rights, the court asked her if she was ready to proceed with the hearing and Karen responded that she was. Additionally, Karen represented to the court that she was licensed as an attorney and was also represented by co-counsel. Her decision to act as she did may have been unwise, but it did not relieve her of her obligation to comply with all applicable rules of evidence and procedure. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 [rules of procedure “must apply equally to parties represented by counsel and those who forgo attorney representation”].)
Second, Karen cannot legitimately claim that she did not know she would need the testimony of her doctors until the close of the DCFS’s case. In its October 3, 2006 and October 26, 2006 reports, the DCFS included the various documents and information that it had received from Dr. Monk and Dr. Perry regarding Karen’s mental status. Given that the DCFS filed these case reports in October 2006, Karen had ample time to review the reports before the adjudication hearing in January 2007 and to determine if there was any information omitted from the reports that was relevant to her position. Therefore, if Karen believed that Dr. Monk and Dr. Perry had additional information about her mental status that was not included in the reports, she could have subpoenaed each of them to testify at the hearing. Likewise, if Karen believed that there were other doctors who had not been interviewed by the DCFS but who could speak about her mental status, she also could have called those doctors as witnesses. Yet despite having the DCFS’s case reports for more than two months, Karen did not take any action to subpoena any of her doctors to testify at the hearing.
Although Karen suggests that she promptly sought a continuance once the court expressed doubt about the reliability of the doctors’ written reports, that argument does not withstand scrutiny. The court made clear that it had reservations about the reports submitted by Dr. Monk and Dr. Perry during the first day of testimony on January 16. Notably, at the close of that day’s testimony, the court asked Karen if she intended to call any witnesses other than herself or Philip, and Karen responded that she did not. Karen made no mention of Dr. Monk, Dr. Perry, or any other psychiatrist even though she was on notice that the court had concerns about the reliability of the doctors’ reports and even though the section 300 petition was based primarily on Karen’s mental status. It was not until the court denied Karen’s motion to dismiss the petition on the third day of testimony and stated that there was substantial evidence to sustain the petition that Karen first asserted that she needed more time to call her doctors. By that point, however, Karen already had been provided with adequate time to prepare for the hearing and to arrange for the testimony of any necessary witnesses. The court accordingly did not abuse its discretion when it found that Karen had failed to show good cause for a continuance.
Alternatively, Karen argues that even if she did not show good cause for a continuance under section 352, she nevertheless was entitled to a continuance under section 354. Section 354 provides that, in addition to any other continuance authorized by the dependency statutes, the juvenile court may continue a hearing on a section 300 petition for up to 10 days “whenever the court is satisfied that an unavailable and necessary witness will be available within such time.” (§ 354.) In this case, however, Karen failed to present sufficient facts at the adjudication hearing to support a continuance under section 354. She offered no evidence at the hearing to establish that the various witnesses she wanted to call were presently unavailable or that they would become available within the next 10 days. Karen also made no offer of proof at the hearing as to how many witnesses she intended to call, when each of her proposed witnesses would be available to testify, and what the purpose and substance of their testimony would be.
In sum, the record demonstrates that Karen was duly advised of her rights to call and cross-examine witnesses and was provided with sufficient time to prepare for the adjudication hearing and to subpoena any witnesses to testify at the hearing. Because Karen did not show good cause for her failure to timely call her witnesses, the court did not abuse its discretion when it denied her request for a continuance.
II. No Denial Of Due Process
Karen also contends that the court’s denial of her request for a continuance deprived her of due process because it “prevented [her] from mounting any effective defense to the allegations contained in the petition.” This argument is likewise without merit. Due process in dependency proceedings requires that the parent be provided with notice of the proceedings and an opportunity to be heard. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.) A meaningful hearing is one in which a parent has an opportunity to confront and cross-examine witnesses and to present relevant evidence of significant probative value to the issues before the court. (In re Matthew P., supra, at p. 851; Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147.) However, due process does not require that the county, rather than the parents, call all relevant witnesses. (In re Malinda S. (1990) 51 Cal.3d 368, 383, superseded by statute on other grounds as stated in In re Cindy L. (1997) 17 Cal.4th 15, 22, fn. 3.) Moreover, “not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.]” (People v. Beames (2007) 40 Cal.4th 907, 921.)
In this case, Karen received both notice of the proceedings and an opportunity to be heard. Karen first received notice of the allegations against her in the section 300 petition filed by the DCSF on August 31, 2006. The petition included the specific allegations concerning Karen’s mental health and how it impacted her ability to adequately supervise and care for Kyle. Karen received further notice of these allegations in the Jurisdiction/Disposition report filed by the DCFS on October 3, 2006 and in the supplemental report filed by the DCFS on October 26, 2006. Both reports included the information and documents that DCFS had obtained from Dr. Monk and Dr. Perry regarding their assessment of Karen’s mental status and her ability to parent Kyle. Karen thus had more than four months from the time the petition was filed to prepare her defense, to subpoena any relevant documents and witnesses, and to arrange for her treating physicians or other persons to testify at the hearing. At the adjudication hearing on January 18, 2007, the court offered Karen an opportunity to present evidence to support her position, including the opportunity to call witnesses and to testify on her own behalf. However, Karen declined to present any defense because, as she stated, the court was “not allowing [her] to conduct it the way [she] want[ed] to.”
Accordingly, any failure by Karen to call witnesses to testify at the adjudication hearing was not because the court denied her the opportunity to offer evidence, but rather because Karen chose not to avail herself of that opportunity. Since Karen had both notice and an opportunity to be heard, she was not deprived of her due process right to present a defense to the section 300 petition. The court properly acted within its authority when it denied Karen’s last minute request for a continuance.
DISPOSITION
The juvenile court's jurisdiction and disposition orders are affirmed.
We concur: PERLUSS, P. J., WOODS, J.