Opinion
B297382 c/w B297726
02-20-2020
In re J.W., et al., Persons Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.W., Defendant and Appellant.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. Nos. 18CCJP07892B, 18CCJP07882A) APPEAL from a judgment of the Superior Court of Los Angeles County, Victor G. Viramontes, Judge. Affirmed. Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
Father appeals the juvenile court's jurisdictional findings over his two children, arguing that the juvenile court deprived him of his constitutional rights to present evidence and effective assistance of counsel by denying father's motion to continue the jurisdiction hearing. We affirm and conclude the juvenile court did not abuse its discretion in denying the continuance and there was no constitutional error.
FACTUAL AND PROCEDURAL BACKGROUND
1. Domestic Violence by Father
Father has two sons, a one-year-old baby and a nine-year-old boy, by two different mothers. At the time the Los Angeles County Department of Children and Family Services (DCFS) became involved, both children lived in father's home with his baby's mother Jessica and Jessica's minor daughter. Jessica and father had been in a relationship for two years.
In early November 2018, Jessica and father had been arguing for two days and Jessica had been staying elsewhere with their baby. Jessica returned home with the baby on November 6, 2018, and told father she wanted him to leave. Father took the baby carrier, which was holding the baby, from Jessica and slammed it on the ground, causing the baby to cry. Father then pushed Jessica against the wall with his hands on her neck, bruising her. When Jessica locked herself in the bathroom, father ripped the bathroom door off its hinges. He then repeatedly hit the kitchen counter with a chair until it broke from the wall. Father left when Jessica called the police. When he returned, he was arrested.
Both the baby and Jessica's minor daughter were present during the incident; father's older son was not. Although Jessica claimed that this was first time father had been physically violent toward her, police and DCFS observed holes in the wall and knife slashes in the couch. Jessica stated that the damage was caused by father during past incidents when he was upset.
When DCFS asked about the incident, father denied it and claimed there was a conspiracy against him. Father's older child told DCFS that father had hit Jessica two days earlier. The child related that father and Jessica fought with their fists. 2. Commencement of Dependency Proceedings and Appointment of Counsel for Father
On December 7, 2018, DCFS obtained a pre-filing warrant to remove the older child from father. On December 10, 2018, DCFS placed the older child with a nonrelated extended family member. The baby and Jessica's daughter remained with Jessica.
In previous dependency proceedings, the older child had been removed from his biological mother and placed in father's custody.
On December 12, 2018, DCFS filed Welfare and Institutions Code section 300 petitions on behalf of the father's two children that alleged Jessica and father had a history of engaging in violent altercations in the children's presence. The allegations were separated into two cases. The first case was for the baby and his half-sibling (Jessica's daughter from an earlier relationship who was present during the domestic violence), and alleged father's domestic violence and Jessica's failure to protect the children. The second case was for the older child and based on (1) father's recent domestic violence and (2) the child's biological mother's conduct in the previously sustained petition (see fn. 1, ante). We do not discuss the merits of the previously sustained petition as it is not relevant to our analysis.
All subsequent statutory references are to the Welfare and Institutions Code.
We consolidated the appeals in both juvenile court cases for briefing, argument, and decision.
As Jessica's daughter is not at issue in this appeal, we do not discuss her status any further.
On December 13, 2018, the juvenile court appointed Laura Menke with the Law Offices of Marlene Furth (the Furth Firm) to represent father in both cases. The court then found a prima facie case for detaining the older child from father, and the baby from father and Jessica. The court released the baby to Jessica, and the older child remained with the nonrelated extended family member. The court set jurisdiction and adjudication hearings on both petitions for February 5, 2019 and February 11, 2019, respectively. The juvenile court ordered father to be present on February 5 and 11, and told the parties the dates were potential trial dates.
On February 5, 2019, attorney Christian Jackson of the Furth Firm appeared in both cases and informed the juvenile court that he was standing in for attorney Dennis Smeal on behalf of father. No mention was made of attorney Menke. Mr. Jackson related that father was present earlier that morning and Mr. Jackson had excused him. The matters were put over to the previously scheduled February 11, 2019 date. 3. Request for Continuance Denied
At the afternoon hearing on February 11, 2019, attorney Susan Dell from the Furth Firm appeared for father, expressly telling the juvenile court she was specially appearing for father on behalf of Mr. Smeal, Mr. Jackson, and Ms. Menke. Ms. Dell informed the court that father had left the courthouse at noon. In the baby's case, Ms. Dell asked for a continuance. In the older son's case, Ms. Dell both renewed her objection to the two cases being heard separately and requested a continuance.
Ms. Dell explained that father informed her and one of the other Furth Firm attorneys who had previously appeared that a paternal uncle was present at the time of the domestic violence. The uncle had not been interviewed by DCFS, and had not been subpoenaed. Ms. Dell had telephoned the uncle but could not reach him. Ms. Dell stated she needed the continuance to subpoena the uncle. She explained that this was the first time she was representing father. Ms. Dell acknowledged that the court had granted her a few hours to get up to speed, but said she had insufficient time to subpoena the witness.
Ms. Dell supported her continuance request with three additional arguments: (1) DCFS had interviewed the older child and Ms. Dell wanted the child ordered to appear at the jurisdiction hearing; (2) she wanted an unredacted copy of the domestic violence police report, including color photographs; and (3) she intended to call a witness, an Uber driver, to testify.
Jessica's attorney objected to the continuance and argued that even though Ms. Dell may have just received the case that day, her firm had had the case from the beginning (almost two months ago). Jessica's counsel pointed out that Ms. Dell had acknowledged several attorneys from her firm were aware of the uncle but neglected to subpoena him.
DCFS's attorney likewise objected to the continuance and argued that under section 352 continuances may only be granted on a showing of good cause and only upon a written request filed two days prior to the hearing. DCFS argued Ms. Dell had neither filed a timely written request nor shown good cause for continuance.
The children's attorney argued in favor of the continuance in the baby's case and submitted without argument in the older child's case.
The juvenile court confirmed that the same law firm had been representing the father from the beginning of the case and, although Ms. Dell was newly involved, the jurisdiction report had been filled some time ago, and the firm had had the opportunity to identify witnesses and be ready to proceed. The court refused to continue either case. 4. The Baby's Jurisdiction and Disposition Hearings
The court noted it was in receipt of DCFS's Exhibit List and asked if there were any objection to the exhibits being admitted. Ms. Dell indicated she had no objection. The court admitted DCFS's exhibits and Jessica's exhibits A, B, and C into evidence. No other evidence was offered.
Both DCFS and the children's attorney argued for the dependency petition to be sustained as pleaded. Ms. Dell asked the court to find Jessica's and the older child's statements in the DCFS reports not credible and to place more weight on father's statements. Jessica's attorney asked the court to sustain the allegations against father.
The juvenile court struck the allegation on Jessica's failure to protect and sustained the allegations of father's domestic violence.
DCFS then informed the court that notice to the half-sibling's father had not been perfected. The court continued the disposition hearing to March 13, 2019.
The half-sibling was mother's daughter whose case was being heard with baby's, but who is not involved in the present appeal.
On March 13, father was present with his attorney, Ms. Dell. The juvenile court ordered the baby removed from father's custody and to remain with Jessica. The court granted father monitored visitation, and ordered father to participate in a domestic violence program, a parenting program, and individual counseling.
We now turn to the separate juvenile proceedings involving father's older child. 5. The Older Child's Jurisdiction and Disposition Hearings
On February 11, 2019, the juvenile court admitted into evidence without objection six DCFS reports. DCFS and the child's counsel asked the court to sustain the petition as pleaded. Ms. Dell asked the court to discredit everyone's statements that contradicted father's account. The juvenile court sustained the petition based on father's conduct.
The court also found true allegations against the older child's biological mother based on the earlier sustained petition.
The court continued the disposition hearing. On April 15, 2019, attorney Christian Jackson (Ms. Dell's colleague who had appeared earlier) announced he was standing in for Ms. Dell and representing father. The juvenile court removed the older child from parental custody, found him suitably placed, ordered monitored visitation for father, ordered father into the same programs as in the baby's case, and ordered conjoint counseling for father and the older child.
DISCUSSION
Father argues that the juvenile court erred in denying his request for a continuance in both cases. "We review the denial of a continuance for abuse of discretion." (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605.)
Section 352 governs continuances in dependency hearings and requires the party seeking continuance to file "written notice . . . at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary." (§ 352, subd. (a)(3).) Only for good cause will the trial court entertain an oral motion for continuance. (Ibid.) The juvenile court may grant a continuance if it is not contrary to the minor's interests and "upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (§ 352, subd. (a)(2).) The statute requires the court to "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." (§ 352, subd. (a)(1).)
We conclude the juvenile court did not abuse its discretion. Although February 11, 2019 may have been Ms. Dell's first appearance, father had had continual representation by the Furth Firm from the inception of the case, nearly two months. The juvenile court could have reasonably concluded that the Furth Firm's practice of rotating attorneys was not good cause for a continuance. As early as December 15, 2018 with Furth attorney Menke present, the court expressly told counsel that February 11, 2019 was potentially a trial date. As the court pointed out, the Furth Firm had ample time to prepare father's case for the jurisdiction hearing.
Ms. Dell did not explain why her firm had not subpoenaed the uncle, sought an unredacted police report, interviewed the Uber driver, or requested the older child's presence before the adjudication hearing. According to Ms. Dell, father had previously told another attorney from the Furth Firm about the uncle, but no reason was given for the failure to subpoena him, nor did Ms. Dell indicate what his testimony was expected to be.
The police report was written on November 11, 2018 when father committed the domestic violence. It was available at least as early as December 30, 2018, the date the custodian of records signed the Evidence Code section 1560, subdivision (e) declaration. Father was represented by counsel then and Ms. Dell provided no explanation for the attorney's failure to obtain a copy prior to February 11, 2019.
The December 13, 2018 Detention Report revealed the existence of the Uber driver as a potential witness. The report of the interview of the older child was filed on February 5, 2019. On that day, father was represented by Mr. Jackson from the Furth Firm. Ms. Dell did not explain why on February 5, 2019 her associate did not request the child's presence at the February 11 hearing.
We also observe that father's decision to leave the courthouse before the case was called on February 11, was certainly not grounds for a continuance. (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1132 ["An unjustified failure to appear at a duly noticed hearing reflects a parent's choice not to attend. [Citation.] A court may properly treat this choice as a waiver of the right to be present at that hearing and of the benefits of being present."].) Section 352 specifically excludes a party's convenience from good cause. (§ 352, subd. (a)(2).)
Father likens his case to In re C. P. (1985) 165 Cal.App.3d 270, which we find distinguishable. There, due process required a continuance of the jurisdiction hearing because the juvenile court appointed an attorney for an out-of-state parent two days before the hearing and the attorney had been unable to make contact with his client. (Id. at p. 271.) In contrast, here, the juvenile court appointed an attorney from the Furth Firm at the detention hearing (two months before adjudication) and father was represented by an attorney from that firm at every hearing. At no time did father suggest any conflict with his attorneys.
We also observe that father's counsel failed to make a written continuance request as required by section 352. As we decide the case on the absence of good cause, we need not address this issue.
In sum, father's counsel failed to provide good cause to continue the hearing. (See e.g. In re Edward C. (1981) 126 Cal.App.3d 193, 206-207 [no abuse of discretion in denying continuance where counsel given two weeks' notice of amendment to petition].)
We also conclude that the denial of the continuance did not violate father's constitutional rights. "The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." (Ungar v. Sarafite (1964) 376 U.S. 575, 589.)
Here, father's counsel was provided ample time to prepare and failed to explain why counsel had not done the things that prompted the need for a continuance. Under these circumstances and "[g]iven the deference necessarily due a state trial judge in regard to the denial or granting of continuances," there was no violation of defendant's constitutional rights. (Ungar v. Sarafite, supra, 375 U.S. at p. 591; see e.g. People v. Fuiava (2012) 53 Cal.4th 622, 651 ["denial of the request for a continuance was not an abuse of discretion or a violation of defendant's constitutional rights"].)
DISPOSITION
We affirm the juvenile court's judgment.
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.