Opinion
B191173
12-5-2006
In re MATTHEW K. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. MIKE H., Objector and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Objector and Appellant. Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Senior Deputy County Counsel, for Petitioner and Respondent.
INTRODUCTION
Mike H. appeals from the dependency courts orders at the jurisdiction and disposition hearing. He claims the dependency court was biased against him and improperly limited his cross-examination, there was insufficient evidence to sustain the petition and the court improperly prevented him from providing information to the social worker that would have led to the generation of a fair report. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 24, 2006, the Department of Children and Family Services (DCFS) received an "[e]mergency [r]esponse referral" regarding allegations of Mikes physical and emotional abuse of his sons Matthew K. (then 5) and Mervyn H. (then 3). A social worker (So Young Park) interviewed the boys and their mother (M.K.) at the domestic violence shelter where they were staying in a confidential placement. Matthew said his father called him "stupid" and "idiot" and "t[old him] shut up." "[H]e does that to me, my brother and my mother." Mervyn said his father told him his mother was in jail when she was at the shelter. He said his father "tells his mother to shut up." He said he was afraid of his father and did not want to visit him.
Matthew was given M. K.s last name; Mervyn was given Mikes last name.
M. said Mike "always follows her and constantly looks for her." She said she was afraid of him; he called her "crazy, a prostitute, stupid [and] mother fucker." She said she had worked at a massage parlor and met Mike there but quit her job after she had her children and was not a prostitute as Mike called her; she was never mentally ill, on medication or in counseling as Mike said either. She said they "fought and argued so much when they lived together." She said he hit her head and the back of her ears with his fists and kicked her legs causing bruises; she did not call the police.
In November 2005, "to fight his abuse," she said, she scratched Mike and tore his shirt. He pressed charges; she was arrested, spent five days in jail and was on probation for three years. He then tried to get custody of the children in the Family Court. She said she wanted to avoid Mike and to avoid legal trouble, but on February 28, he appeared at the shelter and the police were called to intervene. (On that date, the Family Court had ordered the children to live with their mother, with Mike to have weekend visits.) She wanted to continue to live at the shelter and receive counseling.
Mike also released the confidential shelter address to others, jeopardizing the safety of other women and children staying there.
The social worker tried to speak with Mike as part of her investigation, but he refused to be interviewed. Thirty minutes after the social workers call to Mike, he called DCFS and said he had reported the Department to the police for harassing him. During the preceding month and a half, Mike had "furiously called different persons (CSW [the childrens social worker], SCSW [supervising childrens social worker], ARA [the Departments assistant regional administrator], RA [the regional administrator])," demanding that they check on M. and the children at the shelter, look for dirt and germs, find out why she was not taking them for daily walks, "find out the security guard who hits Matthew on his head 10 times a day, why he is taking a shower with and sleeps with [M.] in front of [the] children at the shelter" and check the refrigerator and shower for food, milk and the presence of germs. One of Mikes letters (dated February 27) setting forth his demands was attached to the detention report.
Mike had "so much anger toward M." that he told the social worker "he wished [M. would] contract[] a really bad disease[] and die painfully." He said she was "low I.Q., mentally ill and [a] prostitute who sleeps with any men around her." When the social worker tried to discuss how harmful such conduct was for the children and suggested that he receive counseling "as the family court ha[d] recommended," he said he had no problems and did not need counseling; M. did. In the social workers view, Mike was "emotionally unstable," had an "anger management problem" and "his behaviors and demands [we]re unreasonable and manipulative." In her detention report, she requested a psychological evaluation of Mike.
Since January 17, the Department had received four referrals including the one underlying the petition at issue here. The first allegation of domestic violence was classified as "unfound[ed]" because M. was not home and there was no domestic violence at the time of the investigation. The second allegation (received February 6) was that M. and a male security guard took showers together and hit the children three times a day. The Department also classified this allegation as unfounded; according to shelter staff, there was no man at all at the shelter—no male staff, no male clients and no male security guard. A third allegation was "ruled out by the DCFS hotline" because it was the same as the second allegation and was received the following day (February 7). The fourth resulted in the petition at issue in this appeal.
Presenting the same allegation to the Family Court on an ex parte basis, Mike had obtained temporary custody of the children.
On March 7, the Department filed a petition alleging that, on an almost daily basis for the past five years, Mike and the boys mother M. engaged in violent altercations (with examples given) in the childrens presence and failed to protect them, endangering their physical and emotional health as a result. Further, Mike emotionally abused the children by calling them derogatory and demeaning names, screaming at M. and calling her derogatory and demeaning names, making numerous false allegations of child abuse and neglect against M. by reporting false information to DCFS and falsely informing the children their mother was in jail.
Mike appeared at the March 7 detention hearing and an attorney was appointed to represent him. His attorney informed the dependency court (Marilyn Martinez) that Mike said the allegations against him were "completely fabricated." As he had stated in a letter to a social worker supervisor, he believed there was a "conspiracy by the Korean mother, the Korean social worker and the Korean domestic violence shelter people" to deny him visitation with his children. After he wrote this letter, the Department filed the petition against him in retaliation and took away his visitation.
Noting Mike had made "quite a few allegations" that the children were not well cared for with M., the dependency court expressed its concern with the Departments apparent assessment of the initial allegation as "unfounded" simply because M. was not home when it attempted to investigate. "Thats dreadful." The court urged counsel for the Department to "follow up with your client." However, the court noted, Mikes other allegations "that were followed up had been ruled out and were unreasonable . . . ." On the basis of the petition and supporting documentation, the dependency court found a prima facie case to detain the children from their father. The children were released to M., with monitored visitation for Mike at the DCFS office; the court ordered reunification services and specified that the childrens and M.s address was to be held confidential from Mike.
When the court was advising the parties of the importance of returning to court as ordered on March 28, Mike said: "I am not going to come back here. No, I am disappointed." The court asked again: "Do you understand the importance? Sir, be quiet or you will be asked to leave." Mike responded: "I am leaving right now." The court attempted to confirm Mikes address in Rancho Palos Verdes. Mike said he was moving. When the court asked if he had his new address, he said: "P.O. Box." "[W]ill you please tell it to me?" the court inquired. Mike answered: "Why should I?" The court said: "Because I am ordering you to do so." Mike then said: "You are taking my children away from me. You are asking me my address?" Ultimately, he wrote his address on a piece of paper and handed it to his attorney who then read it into the record.
The court advised Mike of the importance of keeping the court informed of his address and asked whether he understood. Mike replied: "It is unfair to answer. If you want me to say yes, yes." At the courts request, a deputy sheriff escorted M. and the children to their car so they could safely leave the building.
According to the jurisdiction and disposition report filed on March 28, the social workers investigation disclosed a "long and serious history of domestic violence" between Mike and M., characterized by repeated instances of the parents separation, the fathers accusations against M. as a "bad mother," and the parents getting back together again. M. said Mike had "kicked her out from his home," but she had come back "countless . . . times." When she and the children were separated from Mike, she said, he would call more than 20 times a day to check on what she and the children were doing.
In addition to the four referrals described in the detention report, there were two other referrals against M.—one in April 2001 (alleging physical abuse) and another in September 2003 (alleging emotional abuse). The Department determined that both were "unfounded."
On March 21, M. expressed an interest in going back to Mike after the termination of the case, stating, "[H]e is the childrens father, and children need a father." The following day, however, she called the social worker and told her she regretted what she had said the day before. She said she was not planning to return to Mike; she wanted to stabilize herself and the childrens life.
M. told the social worker she and Mike had verbal disputes on an "almost daily" basis. He "constantly" called her "stupid, idiot, bastard, mother fucker," "dirty, prostitute and a bad mother" in front of the children and told her to get out of the house. In March 2003, M. said, she left Mike for about a year and a half but returned to him in November 2004 because Mike "got sick." At that time, she said, she had "more understanding" about Mikes "controlling and paranoid behaviors" so she did not fight back or argue and "decided to keep quiet to end disputes." She wanted a "different way of life." However, Mike started using physical violence; three to four times a week, in front of the children on most occasions, he pushed her, hit her head and behind her ears with an open hand, hit her body with closed fists and kicked her body and legs. On November 7, 2005, she said, Mike hit her in the head and other places that would not show bruises. She fought back by "grabbing [Mikes] shirt[] and scratching him wherever she could reach."
M. said Matthew and Mervyn used these derogatory names in playing with other children at the shelter.
Mike called the police. The police provided M. with shelter information and left. On December 15, however, Mike changed the locks and left a note on the door for M. to go to the police station. When she did, she was arrested on a bench warrant relating to the domestic violence incident in November. She was not aware she had been charged with any crime. She called Mike from jail; he said she "needed to be punished and stay in the jail for [a] long time." When she was released after five days, she could not go home (Mike obtained a restraining order against her) and went to a shelter.
At one point, M. found a job at a barber shop. She had previously studied for and obtained her barbers license. Mike did not want M. to work, but the family was experiencing "financial hardship" and M. wanted to "provide necessary things" for the children. Mike had worked at a check cashing business, in insurance sales and as a taxi driver. M. worked for about four months until Mike came in and "picked a fight with the owner" of the shop and accused him of having a sexual relationship with M.
When the social worker attempted to interview Matthew, he was quiet and did not answer. When he began to play with some toys, however, he said, "[W]hen [D]addy yells [M]ommy to shut up, she shuts up." Mervyn motioned, repeatedly hitting his chest with two closed fists, and said, "[H]e hit Mommy cry." When the social worker did not understand at first, Matthew said Mervyn meant "when [D]addy hits [M]ommy, [M]ommy cried [sic]," and Mervyn nodded his head.
The report detailed Mikes interactions with Department personnel. On February 7, he contacted CSW So Young Park and said he was "so disappointed" she did not find Matthew was being abused by his mother and her boyfriend at the shelter. When she tried to speak with him, he yelled, "[S]hut up, shut up, shut up, you fucking Korean [w]oman, go." On February 10, at his home during an investigation, he pointed at her, yelled and screamed at her and called her "you idiot." Mike called the Departments assistant regional administrator Sik Woo to complain about Park, calling her "that Korean bitch." After Mikes complaints about Park and request for a non-Korean social worker, he was assigned to Hai Luu who left numerous voice mail messages attempting to interview Mike with regard to the petition. Assuming Luu was Korean, Mike refused to speak with him. He demanded daily visits from 11:00 a.m. to 3:00 p.m. instead of weekly visitation as ordered.
On March 17, Mike came to the DCFS office to see assistant regional administrator Sik Woo. When supervising childrens social worker Alex Chang came to assist him, Mike called the police on him, claiming Chang was violating the court order for visitation. When Chang attempted to advise Mike visitation had already been arranged to occur every Monday from 4:00 to 5:00 p.m. in Torrance as Mike had requested, Mike refused to listen and called Chang a "stupid moron." The police escorted Mike out of the office.
On March 20, Mike called Chang and called him a "son of a bitch, mother fucker" before Chang hung up the phone. Mike then left a message for DCFS Division Chief Germaine Key, stating that Chang was the one who was hitting Matthew on the head 10 times a day at the shelter. Chang had never met Matthew, Mervyn or M. and had not even spoken with M. on the phone. DCFS contacted county counsel regarding Mikes "irrational, unpredictable and outrageous behaviors." On March 21, the court ordered visitation suspended for one week until the March 28 hearing date.
Several letters from Mike to Department personnel were also attached to the report. In a March 3 letter to Key, Mike said there was a "conspiracy going on against [him] and the custody of [his] children by Korean Social Worker, Free legal Aids [sic] Korean Lawyer, Korean court clerk and Korean child advisor at the shelter in which they all can influence the Judge[s] decision." He said he had told Key he did not want a Korean social worker and said she had been "receptive."
In a March 6 letter to Key, Mike complained that the "conspiracy by Korean social workers" accusing him of verbally abusing his children and canceling his weekend visitation had inflicted a great deal of stress and anxiety and triggered some health issues such as shortness of breath, irregular heart beat, strep throat and flue [sic] type symptoms." (He attached copies of prescription labels for cough syrup and an inhaler.) He said his doctor had ordered him to take it easy, stay home and "not to argue with anybody till [sic] full recovery."
In another letter to Key (also dated March 6), Mike said because Key had assured him by phone that she would monitor the situation very closely, "It will work better for me to leave the children alone with their prostitute mother and have you monitor the childrens welfare and their schooling and their living arrangement and evaluate them weekly . . . . This way I will lessen the level of my daily dose of stress caus[ed] by your Korean Social Workers . . . . We will also find out if this prostitute and psychotic mother has what it takes to take care of our children properly . . . ." He told Key to call him on his cell phone to notify him of her findings. "Please advise your Korean Social Workers not to call me anymore. I only want to hear from you."
On March 7, he wrote Key another letter saying he had written many letters to stop Park from making false allegations against him, and now Key had failed to stop her. He said the dependency courts decision of that date was "an insult to me and my integrity trying to save the children from their wicket [sic] psychotic prostitute violent mother for the past five years. [¶] It seems that no one cares about what I have been going through to save the children." He requested that she reprimand Park because he said she was not honest or impartial; she was an "instigator" and a "liar." He had a "strong premonition that [it] is best for me to walk away and leave the children with their prostitute psychotic mother and hope for the best." He said to call him weekly on his cell phone to report how the children were doing.
On March 10, Mike wrote Key again, stating that he had left numerous messages for her. He said he "d[id] not wish to be monitored by the Korean enemies," the location was too far away and he wanted a different location. He said "Hiloo" had called him again; he said to "tell them the Korean SW I am not interest to talk to anyone in that Dept. until I launch an extensive investigation by the authorities in charge for all the false allegations against me by the Korean SW. Like I mentioned [i]n my previous letters, I only want to hear from you. Why you let them keep calling me?"
On March 16, in response to Mikes letters, Key wrote Mike to advise him that he had now been assigned to childrens social worker Hai Luu. Mike was advised Mr. Luu and his supervisor Alex Chang would be coordinating Mikes visitation to take place in Torrance as he had requested. He was given Luus and Changs telephone numbers as well as the number for Assistant Regional Administrator Sik Woo for any further questions regarding visitation.
On March 17, Mike prepared a declaration in which he stated (among other things) that (as he had told Park) his private investigator had informed him of the shelter address where M. and the boys were staying and that he had seen the man who was sleeping with and showering with M. and who was hitting Matthew. On March 17, Mike said, he had driven to Covina to talk to Key or Woo. "Coincidentally, as I was asking the guard for direction[s] to Mr. Woos office, Mr. Alex Chang walked him [sic], and he looked like the man he saw at the shelter." He called the police. He said he "strongly believed" his initial letters and the "possible sexual relationship between Mr. Alex Chang and Matthews prostitute mother" had prompted Parks conspiracy against him. There was also a declaration from Mikes "former family law attorney" who said she had spoken with Park around the end of January 2006, and she had said Mike was a "wonderful father" and the children were "fine" in his care.
At the hearing on March 28, Mike requested unmonitored visitation in a public setting. The childrens attorney found the information in the report "very concerning" but believed the children needed visitation with their father. The court denied Mikes request for unmonitored visitation. "Theres evidence to support that his conduct is entirely inappropriate, and his unsupported denial pales by the evidence that is provided to the court." The court ordered monitored visitation to take place in the social workers office only on Mondays from 4:00 to 5:00 p.m., specifying that if Mike was uncooperative during visitation, if he did not remain child-centered, if his conduct required security, he would have no further visitation pending further order of the court. "Mr. H[.], your children want to see you. I know you want to visit them. When you show up at the visit, you shall focus on the children." Mike said he didnt want to visit on a monitored basis. Asked whether he would be at the first visit on Monday, he answered, "No." The court then stated, "The children shall not be taken to any visits pending further order of this court. Mr. H[.] does not want to cooperate; and, therefore, theres no reason the children should be taken to the social workers office with the expectation of seeing their father when he does not intend to appear." The matter was set for adjudication on May 4.
At that time, the dependency court advised counsel that Mike had filed a peremptory challenge (Code Civ. Proc., § 170.6 [all further statutory references are to the Code of Civil Procedure]) which the court denied as untimely.
On April 14, the court heard a motion to be relieved as counsel due to a conflict of interest filed by Mikes attorney (Daniel Rooney). Having read and considered the motion, the dependency court granted the motion and appointed Benigno De Hoyos to represent Mike. The court then told Mikes new counsel, "[P]lease advise your client of the following: Your client continues to send me correspondence. I believe Ive already advised him that I am not able to read ex parte communications[,] that his communications will simply be lodged in the court file, and that other than that, I will not be reading his communications."
According to the record, the court had previously conducted a "Marsden-type hearing at [Mikes] request, but his request for new counsel had been denied.
In an April 2 letter, Mike wrote: "Ms. Martinez, please take notice I refuse to have you as the judicial officer of the law to rule on the [c]hild [a]buse conspiracy which has been orchestrated mainly to hurt me . . . ." There were further letters to the court dated April 24 and May 1.
At the May 4 hearing, Mikes attorney called Deputy Murphy of the Los Angeles County Sheriffs Department as a witness. Deputy Murphy testified that he conducted three child abuse investigations at Mikes home in December 2005 or January 2006. The first involved an allegation of abuse by M. She was not home at the time, and, after interviewing one of the children, he could find no evidence of abuse. The second time involved allegations that M.s boyfriend had abused the children at a womens shelter. Neither M. nor any boyfriend were present, and Deputy Murphy found no evidence the children were in danger.
On the third occasion, Deputy Murphy was called to accompany childrens social worker Park, and he witnessed her interview of Mike and Mervyn. At that time, she and Deputy Murphy concluded there was no problem at the home. He spent about 10 minutes at the home on each of the first two occasions; on the third occasion, Park interviewed one of the children for about 20 minutes and was at the house for a total of about 30 minutes.
Mikes attorney then called Matthew as a witness. In chambers, Matthew testified that he saw Mike and M. "fighting together" very often. Only his "Dad" and not his mother called names; he said "stupid" and "you idiot." After Matthew "d[id]nt listen," Mike would kick him. "He will kick me real hard." M. did not get mad at Matthew, but one time, she "pulled [Mikes] shirt" and "it got broken." Matthew grabbed his shirt and pulled it out to demonstrate. When Matthew did something wrong, he said, M. talked to him about it; she did not hit him. He said he was afraid of Mike; he said, "[Mike] always call[ed him] names too loud" and called his mother names.
At the conclusion of proceedings on May 4, the dependency court stated that, although he had been advised in the past, Mike was "sending [the court] letters on a very frequent and regular basis." "I am advising you again. I cannot read your letters. They are considered ex parte communications. That is contrary to the Canons of Judicial Ethics. You can certainly continue writing them, but I will be putting the unopened envelope into the file, and they will be unopened by me." The matter was then continued to May 15.
On May 15, by stipulation, the court accepted a two-page letter from Mike in lieu of his testimony. He said he missed his children, but he would not "capitulate to this conspiracy." He recounted his claim that he was being "set up with these false child abuse allegations" by Park and Chang. He said he had told Park that because "their mother is psychotic and a prostitute and unfit to take care of them, and also because he must work long hours," he would "rather have an open Foster Home" close to his home where he could "establish a relationship" with the children and visit them daily. He said she told him he could be directly involved for the first two years and "even take them home on the weekends," and he said, "[T]hat is all I want." After that, he said, his financial situation would improve, he could hire a babysitter and have the children back with him.
He said Park and Chang were involved in "this scheme of child abuse against me and they are being very slick and dishonest about it." When Park came to his home with Deputy Murphy, he said, she harassed Matthew but could not find anything so Deputy Murphy escorted her away. He said Mervyns preschool principal and his ex-wife denied any child abuse. His apartment managers "disclosed their input regarding [M.s] violent behavior and [his] love for his children." He said his former family law attorney said Matthew told her "he is scared to go to his mommy." He said M. had "threaten[ed] to kill our children back in 2003," he "recorded that threat on a tape" and "Commissioner Beckof ordered her 20 sessions of counseling." He said she had "signed a notarized statement back in 2002 that she no longer desires to be Matthews mother and disappeared for three months."
There were no exhibits to Mikes statement.
Mikes counsel then called M. as a witness. She testified that during the initial year and a half that she lived with Mike, there were no physical altercations between Mike and her; there were "frequent[]" verbal altercations, and they took place in front of the children. She and Mike separated for about two years. When they got back together for about a year, they "almost didnt have any verbal argument[s]." Mike called her a prostitute in front of the children.
After hearing closing arguments, the dependency court sustained the petition, finding, "The evidence is so clear that Mr. H[.] has perpetrated physical and verbal violence on his family"—"on the mother of his children, and his children as well. [¶] While we havent had expert testimony—and Im not an expert, but I have 16 years on the bench, [and] it seems Mr. H[.] epitomizes the stereotype person the classic perpetrator of domestic violence. [¶] Mr. H[.] denies doing any . . . of these acts of violence, and yet Matthew, who is just five years old and . . . I find . . . has no motive to lie[,] he was spontaneous, and he said yes his parents fight, and he saw it and [heard] names such as stupid and idiot . . . . He was very clear that his father gets mad at him, especially when he doesnt listen . . . and whats the result? This little five-year-old boy gets kicked by his father and kicked real hard. [T]hose are Matthews words."
The dependency court "delet[ed] Ms. K[.] from the counts regardless of the criminal court findings. She has attempted for a long period of time to fight back against this man who has perpetrated this abuse. [¶] [O]ne time when they were reunited, she tried to just be quiet so as to avoid or end the disputes. She tried to move out to end the disputes. On one occasion, she tried to fight back, likely to defend herself from the bashing by Mr. H[.]"
"As to scheming and conspiracy, all of [Mikes] statements and perceptions are unfounded and totally unsubstantiated. He has been vulgar and violent even to the Department . . . . [¶] This is the kind of person who has this distorted sense of love and hate so deeply that he wants to prevent his children being with their mother. And there is one ultimate act that could cause that to happen. And we will take steps to preclude that. [¶] Mr. H[.] is unable to have an accurate perception of what has been going on in his household. He has not and cannot take any responsibility whatsoever for the abuse that he has been perpetrating for a number of years." The court ordered the children removed from Mikes custody and to remain in M.s custody (with the address to be kept confidential) with monitored visitation for Mike. Mike was further ordered to participate in individual counseling to address domestic violence, anger management and mental health issues as well as a 52-week domestic violence program.
Mike appeals.
DISCUSSION
I. Mike Has Failed to Demonstrate That He Was Denied Due Process Such That a "Reasonable Member of the Public Would Entertain Doubts Concerning the Dependency Courts Impartiality."
According to Mike, "[his] Korean conspiracy claims may sound foolish, but all of the Departments social workers, supervisors and visitation monitors had Asian names. . . . It should not have been a surprise that replacing Asians with Asians did not make [Mike] any more comfortable." Then, he says, "[t]he court may have made up its mind as to the facts of the case without seeing a parent or hearing a witness." Citing the courts comments in connection with its finding of a prima facie case, he says, the record "indicates the court was of the opinion that it did not need to hear anything further." He further notes that the court told M.: "I hope you will see the social worker as someone who is going to help protect the children and the children in your custody"—after she was reluctant to give the shelter address to the social worker, believing she was not permitted to divulge it to anyone as it would jeopardize her placement. Mike cites to other such comments the court made in issuing its rulings as well as other "evidence" (primarily his unsubstantiated allegations) he says the court "ignored." He notes further that the court underlined certain evidence (but not other evidence) contained in the social workers reports. Had he known this, he says, he could have filed a section 170.1 request to remove Commissioner Martinez for cause.
As the court stated in Kreling v. Superior Court (1944) 25 Cal.2d 305, 312, "[W]hen the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him in the trial of the action. It is his duty to consider and pass upon the evidence produced before him, and when the evidence is in conflict, to resolve that conflict in favor of the party whose evidence outweighs that of the opposing party. The opinion thus formed, being the result of a judicial hearing, does not amount to that bias and prejudice contemplated by section 170 . . . ."
Each of the examples to which Mike refers reflect the dependency courts performance of its duty in weighing and assessing the evidence and reaching conclusions on that basis. Instead of demonstrating the dependency courts bias against him as he contends, the record establishes that the court believed the evidence supportive of its findings and was unconvinced by Mikes unsubstantiated statements to the contrary.
Mike says he filed a request for another hearing officer, but that request was denied. To the extent Mike is actually attempting to revisit this issue, a determination regarding a judges disqualification is not an appealable order and may only be challenged by writ review sought within 10 days of notice of the decision. (§ 170.3, subd. (d); People v. Hull (1991) 1 Cal.4th 266, 273 [subdivision (d) of section 170.3 promotes fundamental fairness and judicial economy by preventing a party from having a second "bite at the apple"].)
In this court, Mike filed a request for the appointment of new appellate counsel for what he perceived as his counsels failure to adequately address his request to disqualify the dependency court because, he said, his request had actually been timely. We denied the request to appoint new counsel on this ground.
II. Mike Has Failed to Demonstrate That the Dependency Court Prohibited His Counsel From Meaningfully Cross-Examining M. at the Jurisdictional Hearing and Deprived Him of Due Process as a Result.
At certain points in the presentation of M.s testimony (in support of Mikes case), the dependency court sustained objections to the questioning as cumulative of statements contained in the social workers reports as well as questions he had already asked and M. had already answered. Mikes counsel argued, "This is specifically the language being alleged in [paragraph] C-1 in the petition today. So Im asking the mother exactly the question thats referenced." The court responded, "Thats exactly why its cumulative." Counsel then stated: "Im objecting for the record because I believe I need to have an opportunity to cross-examine the mother as to the specifics, and the courts not allowing that." The court replied: "Then ask her a question that actually cross-examines her on what she has said already, not the same question." He then asked M. whether Mike had ever called her a prostitute in front of the children. She said, "Yes." When he asked if he had called her any other names, objections by counsel for DCFS and M. were sustained. Mikes counsel then said he had "no other questions."
Mikes counsel stated that he had planned to cross-examine the social worker but elected not to do so at hearing. He did not inquire about the November 2005 incident or about any of the other allegations Mike had made regarding M. He submitted Mikes two-page statement and presented testimony from Deputy Murphy, Matthew and M. After the court clarified the problem with his questioning, Mikes counsel made no effort to ask questions other than questions framed in the exact language of the petition as the court directed him to do. Mike has failed to establish that the dependency court deprived him of due process or that he was in any way prejudiced as a result of its rulings in connection with his cross-examination of M Hui.
III. The Petition Was Supported by Substantial Evidence.
According to Mike, there was insufficient evidence to support jurisdiction because he was "prohibited by the court from contradicting and rebutting statements reported by the social worker" so the social workers report should not have been admitted. Mike had the opportunity to cross-examine the social worker regarding the report, but Mike (through his counsel) elected not to present such testimony. He had the opportunity to examine M. regarding her statements although his questioning was limited as addressed above. Moreover, even without considering the social workers report, the testimony from Matthew (as well as that of M.) constitutes substantial evidence in support of the petition. In fact, the testimony he elicited from Deputy Murphy contradicted in part Mikes own statement.
IV. Mike Has Failed to Establish that the Dependency Court Prevented Him from Presenting Information to the Social Worker that Would Have Yielded a Fair Report.
Finally, Mike argues that the dependency court erroneously prevented him from presenting information to the social worker that would have permitted the preparation of a fair report because, he says, the deputy county counsel believed the social worker was his client. This argument misses the point. The issue was not whether the social worker was the client of deputy county counsel for purposes of assessing whether Mike was prohibited from contacting the social worker directly. As the dependency court found, Mike had repeatedly contacted the social workers and had been "vulgar and violent" to the social workers and other employees of the Department on multiple occasions. Moreover, Mike fails to explain what information he was precluded from presenting to the social worker or how it would have yielded a different result. Indeed, as of the May 4 order to communicate through his counsel, it was Mike who had refused to speak with any of the Departments social workers, indicating he would only speak with Division Chief Key. He has failed to show how he was prejudiced in any manner by this order.
DISPOSITION
The orders are affirmed.
We concur:
PERLUSS, P.J.
ZELON, J.