In re S.H.

Filed 3/22/07 In re S.H. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. George L. Orndoff, Judge.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Peter D. Moock, County Counsel, and Brian Walters, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

S. H. appeals from disposition orders made on October 31, 2006, leaving her in her parents custody under a plan of family maintenance services following a petition filed on August 28, 2006, alleging physical harm (Welf. & Inst. Code,  300, subd. (a)) and serious emotional damage (Welf. & Inst. Code,  300, subd. (c)) to one of S. H.s older siblings.^[1] On appeal, S. H. contends the court erred by denying her motion to continue the disposition hearing. ( 352).^[2] We disagree and will affirm the judgment. We will also deny S. H.s request to treat this appeal as a writ.

FACTS AND PROCEEDINGS

After an altercation between one of S. H.s older siblings and their parent, a section 300 petition was filed as to S. H. and a sister alleging under section 300, subdivision (c), that S. H. and her sister were at risk of suffering serious emotional damage as the result of their parents conduct. At a detention hearing, the sibling involved in the altercation was detained. S. H. and her sister remained in their parents custody.

A social workers report was prepared on September 26, 2006 for the jurisdiction and disposition hearings. The report recommended that S. H. and her sister remain in the care of their parent. Neither minor expressed any fear of their parent. S. H. told the social worker that things at home had been fine after her older sibling had left. Because of a family tragedy, S. H. and her sister attended grief counseling at their church. Both minors reported that their parent never said anything mean to them and did not hit them.

The social worker recommended that S. H. and her sister be adjudged dependents and that family maintenance services be provided to their parent. The social worker noted it was in the best interests of S. H. and her sister to remain in the custody and care of their parent.

At the conclusion of the adjudication hearing on October 20, 2006, the court modified the  300, subd. (c)(2) allegation concerning S. H. and her sister to state there was substantial risk of suffering serious emotional damage as the result of the conduct of their parent.^[3] Due to the family tragedy, the court admonished the parent to get professional counseling for S. H. and her sister.

On October 30, 2006, the day before the disposition hearing, the social worker filed an addendum report noting that information was received from the district attorney that two laptop computers seized from D. H. had thousands of pornographic images. After viewing several thousand images, an investigator found several images of what appeared to be females under age 18 engaging in sexual acts. There were also images of popular cartoon characters engaging in sexual acts. The investigator believed these were grooming pictures used to attract children into actual physical contact.

The social worker reported that S. H.s sister reported she had used one of these two computers for school work and sending e-mails to her friends. S. H.s sister, however, had never seen any pictures or videos on the computer. To the sisters knowledge, neither she nor S. H. had ever seen nude or pornographic images or videos on their parents computers. S. H. had also used her parents computers but had never seen any images of naked people. The social worker did not alter her assessment, evaluation, or recommendations after receiving this information.

During the October 31, 2006, disposition hearing, S. H.s counsel requested a continuance to call Dr. Woods, an expert witness. Dr. Woods would explain the risk that pornography posed to S. H. as well as the risk of the parents failure to obtain mental health counseling services.^[4] The social worker stated there was no need for a continuance because there was no proof the children had been exposed to pornography. S. H.s counsel argued that an expert would provide a connection to remove the two younger minors and would provide evidence to the court that there was a risk to the children. The court denied the motion for a continuance, noting it had heard nothing to justify a continuance.

S. H. and her sister testified that they both felt safe with their parent. S. H.s sister testified that she wanted to remain in her parents custody and did want to have counseling. The parent testified, admitting there was pornography on a laptop computer. The parent denied placing any child pornography on the computer. The parent admitted the entire family needed counseling.

The court found that the two minors were above average intelligence and seemed from the tone of their voices to be sad. The court noted that the parent recognized the need for family counseling. The court found no basis to remove the minors from their parents custody. The court made disposition orders, including that the two minors remain in the parents custody under a plan of family maintenance services.

DENIAL OF CONTINUANCE MOTION

Appellant contends the juvenile court abused its discretion in denying her request for a continuance of the disposition hearing. Appellant argues the continuance was authorized by section 358 and that the denial of her request violated her due process right to present evidence. Continuances are authorized by section 352, subdivision (a).^[5] A juvenile court may continue a dependency hearing for good cause shown and only for the time shown to be necessary. The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. A court abuses its discretion when its decision is arbitrary, capricious, or patently absurd, resulting in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) Continuances are discouraged in dependency cases. (Ibid; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Appellant argues that the social workers report concerning evidence of child pornography on the parents computer was received the day before the disposition hearing and the courts failure to grant the continuance motion exceeded the bounds of reason. We reject this argument for a number of reasons. First, although the parent admitted possessing pornography, the parent denied ever possessing child pornography. Second, both S. H. and her sister reported that they had never encountered any images of nudity or pornography when using any of their parents computers. There is no evidence the parent ever showed the images to either daughter.

The evidence appellant sought to tender from Dr. Woods would be an explanation of the risk that pornography posed to S. H. as well as the risk of the parents failure to obtain mental health counseling services. On the record before the juvenile court, the causal connection between the allegation that the parent possessed pornography and that such possession could potentially harm the minors appears to be speculative. Though the juvenile court did not directly address this issue in its findings, by its silence it made an implied finding that there was either little merit to this contention or it was not substantiated.

The court had before it the social workers report containing the statements of S. H. and her sister that they had not been exposed to any pornographic image, as well as their testimony at the hearing that they wished to remain in their parents custody. Though the juvenile court could have drawn different inferences from the information in the social workers report of October 30, 2006, it apparently found this additional information unpersuasive. When two or more inferences can reasonably be deduced from the facts, the reviewing court cannot substitute its decision for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Third, the failure of S. H.s parent to secure counseling for the children was well documented in the social workers report from September 2006 and was a focus in the jurisdiction hearing ten days earlier. Appellant had adequate notice of this issue long before the disposition hearing and waited until the beginning of the disposition hearing to seek a continuance. Any testimony from Dr. Woods concerning the counseling issue would likely have added little to the evidence before the juvenile court. This is especially true given the fact that the parent was seeking counseling help from the familys church and expressed a desire during the jurisdiction and disposition hearings to seek additional help for the minors.

Appellant argues that section 358, subdivision (a)(2), permits a continuance of up to 30 days plus an additional 15 days upon a showing of cause, when a child is not detained. This statute, however, does not supersede section 352, subdivision (a). It merely supplements it. Section 358 gives the court discretion to continue a matter. It adds no substance to appellants argument.

Appellant has failed to demonstrate that the juvenile court abused its discretion in denying the motion for a continuance. The factual showing for such a hearing was weak. Testimony from Dr. Woods would have added little to the evidence before the juvenile court. This is especially true given the uncontradicted statements of S. H. and her sister that they had never seen or been shown any inappropriate images.

Appellant further contends that the denial of her motion for a continuance violated her due process right to a meaningful hearing. Appellant argues the error is not mere trial error, but structural error rendering the hearing as fundamentally unfair. (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 555-558.) We do not agree.

The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1147.) The parents possession of pornography was not disputed. The parent did dispute possession of child pornography. The evidence in the social workers report, however, did not include the allegation that either S. H. or her sister ever saw pornography or other inappropriate images.^[6] The value of testimony by Dr. Woods on this topic, therefore, was not of significant probative value to the court. Appellant has failed to demonstrate structural error that made the hearing fundamentally unfair.

REQUEST TO DEEM APPEAL A WRIT

Appellant requests that we exercise our power to treat this appeal as a writ. (Melinda K. v.Superior Court (2004) 116 Cal.App.4th 1147, 1150.) Appellant argues that the appeal does not provide her with an adequate remedy at law. Appellant contends that in treating this appeal as a writ, we will assure that all the evidence concerning her safety and protection will be before the trial court. The appellant has failed to demonstrate that her safety and protection were compromised. Her factual showing for the continuance motion was weak. We will deny appellants request to treat this appeal as a writ.

DISPOSITION

Appellants request to treat this appeal as a writ is denied. The disposition orders of the juvenile court are affirmed.

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^*Before Vartabedian, Acting P.J., Harris, J., and Kane, J.

^[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

^[2] We deny respondents request for judicial notice.

^[3] Most of the testimony of the adjudication hearing centered on the parents relationship with the older sibling.

^[4] No other party joined in the continuance motion.

^[5] Section 352, subdivision (a), provides:

Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors 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.

Continuances shall be granted 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 on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.

In order to obtain a motion for a continuance of the hearing, written notice shall be filed 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, unless the court for good cause entertains an oral motion for continuance.

^[6] Although the record is silent, it is possible that a new allegation based on the parents possession of pornography was not filed pursuant to section 342 because there was no evidence that the minors had ever been exposed to it. Because all we can do on review is speculate as to why no section 342 amendment was made to the petition, we do not address the respondents argument on this point.