Filed 3/15/18 G.F. v. Superior Court CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

G.F. et al.,
Petitioners,
v.
THE SUPERIOR COURT OF NAPA COUNTY,
Respondent;
NAPA COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT,
Real Party in Interest.
A152551

(Napa County
Super. Ct. No. 17JD000023)


At the age of five weeks, A.M. (Minor) was found to have multiple cracked ribs at different stages of healing, two broken clavicles, retinal hemorrhaging, and severe brain damage. The doctors who treated him concluded his injuries were sustained through abuse, rather than through accident or trauma during birth. The juvenile court found Minor a dependent child, denied reunification services to his parents, and set a hearing pursuant to Welfare and Institutions Code section 366.26. Minor’s parents, G.F. (Mother) and G.M. (Father), contend the juvenile court improperly refused to continue the jurisdictional and dispositional hearing to allow them to secure expert testimony that Minor’s injuries could have occurred during birth. We shall deny the petition on the merits.
I. BACKGROUND
A. Detention
Minor’s parents took him to a hospital on March 12, 2017, to investigate circular marks and scratches found on his chest after he woke from a nap. The following day, Minor had a previously scheduled appointment with his doctor and was found to be healthy. On March 17, he was drenched in sweat, and he slept for six hours during the day, which was unusual for him. That night, he woke up every few minutes whimpering. He would not feed, he was lethargic, and he had a fever. His parents took him to a local hospital, and he was transported to Children’s Hospital in Oakland.
Tests at Children’s Hospital revealed that Minor had fluid in his abdomen, hemorrhaging around his entire brain, retinal hemorrhaging in both eyes, breaks to the clavicles, and at least 13 broken ribs. The retinal hemorrhages indicated shaken baby syndrome, and the brain injury and swelling appeared to be caused by impact on a soft surface. Some of the fractures had more calcification than others, indicating some were older and some newer. Some of the fractures indicated that Minor had been squeezed, and some of the rib and clavicle breaks could have been from direct blows. The brain injuries appeared relatively recent. The combination of injuries was consistent with a baby being squeezed while being shaken, then slammed down.
Mother reported that she had heard a cracking sound along the back of Minor’s ribs about two weeks previously and that she had mentioned it to doctors. She said she hardly ever left Minor alone with anyone else and she had not seen anyone treat Minor in an unsafe manner. She acknowledged, however, that she knew Father had a criminal record, had been charged with driving while intoxicated, marijuana, and vandalism, and had had alcohol problems when he was younger.
The Napa County Health and Human Services Department (the Department) filed a petition pursuant to section 300 on Minor’s behalf, and, on March 23, 2017, the juvenile court ordered Minor detained. Mother and Father were present at the detention hearing.
B. Jurisdiction/Disposition Report
The Department filed a report for a jurisdiction/disposition hearing scheduled for August 9, 2017. The report noted that Minor’s birth records showed he was delivered without complication, although the umbilical cord was wrapped around his neck. Minor had a weak cry one minute after birth, and a “good, strong cry” after five minutes. He had a normal physical exam, but was noted to be “jittery.” When he was three days old, he was found to be calm, alert, and vigorous, and at six days old, the parents did not report any excessive irritability. During a medical visit when Minor was two weeks old, it was reported that Minor was irritable and cried a lot, but the doctor noted he appeared alert, active, and vigorous. At an appointment when Minor was 18 days old, the parents denied that Minor was excessively irritable or lethargic, and they raised concerns about sounds of congestion when he slept.
On March 12, 2017, Mother called Minor’s doctor expressing concerns about purple spots on Minor’s eye, stomach, and nipple, which appeared to be tender. She took Minor to the emergency room the next day, and reported Minor seemed uncomfortable and that he cried and spat up a lot. At Minor’s one-month baby visit the following day, a doctor noted that both Minor’s clavicles were raised in the middle.
Minor was admitted to the emergency room on March 18, 2017, and found to have the injuries to his brain, eyes, and bones described above. Photographs and videos on the parents’ phones showed Father handling Minor in an unsafe manner, while Mother was present and did not intervene, and of Minor crying without being comforted by either parent. Minor’s grandparents reported that they had felt and heard “cracking” in Minor’s ribs multiple times over the previous month.
When Father spoke to a social worker, he said Minor had not been hit or shaken. He expressed the view that Minor might have suffered oxygen deprivation during birth due to his umbilical cord being wrapped around his neck.
The medical director of the Center of Child Protection at Children’s Hospital Oakland, Dr. James Crawford-Jakubiak, reported that Minor had a very serious brain injury, which he was positive was caused by a traumatic injury. Minor had several lacerations to his brain, and that Minor was physically hurt so badly that his brain was “tor[n] up . . . like a piece of paper.” Minor was also deprived of oxygen because he did not breathe enough for at least a day after the injury, which made the brain damage worse. Minor suffered severe bleeding in his eyes. Nothing in Minor’s medical history could explain the rib fractures. Minor had 15 fractures on his ribs and fractures on both clavicles, and, based on the amount of healing, it appeared there had been at least two episodes of trauma to his chest. Rib fractures at birth are exceedingly rare. The CT scan taken the day Minor was admitted to the hospital showed changes that had occurred recently, rather than during Minor’s birth five weeks previously. The blood seen in the brain scan was new blood, not the result of a five-week-old injury. A scan taken ten days later showed the “holes” in Minor’s brain had gotten bigger, and most of the brain had been replaced with fluid by early June 2017. Dr. Crawford-Jakubiak stated with 100 percent certainty that the brain injury did not occur at the time of birth. It appeared the injury had taken place the day before Minor was taken to the hospital. Medical tests had shown no cause for Minor’s bruising other than physical injury. The entire team of medical doctors who treated Minor at Children’s Hospital agreed his injuries were from non-accidental trauma. Dr. Crawford-Jakubiak concluded that someone most likely slammed Minor on a soft surface, such as a mattress, to cause his retinal hemorrhages and brain injury. Based on Minor’s injuries and medical record, Dr. Crawford-Jakubiak thought Minor had been attacked violently on at least three occasions.
Father expressed the view that Minor’s injuries occurred during birth. He reported that Mother had a fetal heart rate monitor while she was in labor, but that the nurses turned the sound down. At one point, a nurse looked at the papers coming from the monitor, appeared concerned, walked out to talk with another nurse, and did not return. Mother’s labor was only two hours long, and Minor was “stuck” when he was coming out of the birth canal. When he emerged, the umbilical cord was wrapped around his neck twice. He did not cry for 45 seconds to a minute, and his cry was weak.
The social worker had several meetings with the parents. She met with both parents together on March 28, 2017, with both parents and their attorneys on May 24, 2017, and with Mother, Father, and Father’s attorney on June 20, 2017. She met with the parents and Dr. Crawford-Jakubiak on March 31, 2017, to discuss Minor’s injuries and their cause. She met with both parents, Mother’s attorney, a deputy county counsel, Minor’s attorney, and Dr. Crawford-Jakubiak again on July 7, 2017. Mother’s counsel indicated at the July 7 meeting that a registered nurse, Angela Chernosky, would be her expert witness.
C. Efforts to Secure Expert Witness
Through their retained counsel, Father and Mother submitted a request for $3,000 in expert witness funds on July 10, 2017, based on an anticipated hourly rate of $100 per hour. The juvenile court approved the request on July 26. On August 1, Mother filed another request for expert witness funds. Her counsel stated she had consulted with
Dr. James Tappan, an expert on birth injuries, who was prepared to testify the Minor’s injuries were the result of trauma occurring during birth, rather than intentional injury. She requested $5,700 to secure Dr. Tappan’s services, at an hourly rate of $475. On August 22, the juvenile court declined to make the requested order pending submission of documentation supporting the reasonableness of the requested hourly rate. A later order indicated that the court was concerned that the hourly rate of $475 was unnecessarily high, and that a court employee contacted Mother’s counsel and asked her to provide more information regarding the timing, necessity, and reasonableness of the requested funds.
Mother made an ex parte request for funds on September 7, 2017. Her counsel’s supporting declaration indicated that, on August 22, she had provided the court with records of her unsuccessful efforts to locate another expert. Dr. Tappan was not available to testify until late October or early November.
Mother filed a witness list on September 6, 2017, listing as witnesses herself, Father, two family members, Chernosky, and Dr. Tappan. She also filed a “Declaration in Lieu of Testimony” by Chernosky, to which was attached a report by Chernosky stating that a fetal heart rate graph showed that Minor’s heart rate had had “two striking incidences of decelerations” during labor, and that the incidents were not properly documented. It also attached a report by Dr. Tappan, who had reviewed Minor’s medical records and expressed the opinion that his injuries might have been sustained during his labor and delivery.
Mother’s counsel informed the court at a September 7 hearing that she wanted to add another expert witness to her witness list, Dr. Michael Wagner. A few days later, she told the court that she had sent reports to Dr. Wagner but did not yet know what his opinion was, and that she did not know whether she would call him as a witness. On September 21, 2017 during the course of the jurisdiction/disposition hearing, after speaking with Dr. Wagner, Mother’s counsel told the court she would not call Dr. Wagner to testify. She asked for a continuance to allow time for Dr. Tappan to testify, and said she could not present his testimony before October 31.
Mother’s counsel told the court she had tried since April 2017 to find experts in birth injuries, without success. She located Dr. Tappan in early July and tried to secure his testimony, but he was not available to testify until October. She sent an email to Dr. Wagner on August 31, she sent documents to him, and on September 19 she received an email saying he would look at them. She tried unsuccessfully to make contact with Dr. Wagner, and finally reached him on September 21. After reviewing the documents, Dr. Wagner told Mother’s counsel that he was not prepared to testify that Minor’s injuries were caused during birth. During the time she was pursuing Dr. Wagner’s testimony, Mother’s counsel did not follow up on other possible expert witnesses.
The juvenile court denied the continuance on September 22, 2017, the final day of the jurisdiction/disposition hearing, concluding Mother did not show she exercised due diligence in seeking an expert witness while she was trying to contact Dr. Wagner, that the statutory deadline for completing the dispositional hearing was September 22 (§ 352, subd. (b)), and that Mother had not shown good cause to continue the matter.
D. Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing took place over several court days between August 9 and September 22, 2017, during which, as outlined above, the parents tried unsuccessfully to obtain an expert witness to testify in a manner consistent with their version of events.
Dr. Crawford-Jakubiak testified at the hearing about the nature of Minor’s injuries, and opined that they were, “with certainty,” caused by nonaccidental trauma; that the brain injuries had occurred within a day or two before Minor’s admission to the hospital; that there was a “zero percent chance” that the brain injuries were sustained a month earlier; that the brain injuries did not occur during birth; that the different stages of healing showed that Minor’s ribs had been broken at different times; and that there was “zero” likelihood that some of the fractures were sustained during birth.
At the end of the hearing, the juvenile court found Minor was a child described by section 300, subdivisions (a), (b)(1), (e), and (i). It relied on section 355.1, under which, when a court finds, based upon competent professional evidence, that a minor’s injury “is of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of either parent, the guardian, or other person who has the care or custody of the minor, that finding shall be prima facie evidence that the minor is a person described by subdivision (a), (b), or (d) of Section 300.” The court denied reunification services (§ 361.5, subds. (b)(5) & (b)(6)) , and set a hearing pursuant to section 366.26 to set a permanent plan of termination of parental rights and adoption, legal guardianship, or another permanent living arrangement.
II. DISCUSSION
Mother and Father contend the juvenile court improperly refused to continue the jurisdiction/disposition hearing. We conclude (1) that the juvenile court lacked authority to grant such a continuance; (2) that its denial of parents’ request did not violate their due process rights; and (3) in any event, even if the juvenile court had discretion to grant the request, it did not abuse its discretion in denying it.
A. The Juvenile Court Lacked Authority To Continue the Jurisdiction and Disposition Hearing.

In ruling on the parents’ request for a continuance, the juvenile court was bound by section 352. Under the clear and unambiguous language of that statute, the juvenile court lacked authority to grant the continuance requested by petitioners, which would have prevented the jurisdiction and disposition hearing from being completed within six months of the detention hearing.
Section 352, subdivision (a) provides generally that “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 minor’s interests, the court shall 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).)
The statute specifically restricts the juvenile court’s authority to grant continuances that will have the effect of delaying the dispositional hearing. (§ 352, subd. (b).) It has two pertinent provisions. The first prohibits a continuance that would result in the dispositional hearing being completed longer than 60 days after the detention, absent “exceptional circumstances”: “Notwithstanding any other provision of law, if a minor has been removed from the parents’ or guardians’ custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance.” (Id.) The second prohibits the juvenile court—without exception—from granting any continuance that would cause the dispositional hearing to be completed more than six months after the detention hearing: “In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319.” (Id. (italics added); see also Cal. Rules of Court, rule 5.550(a)(3) [same].)
The plain language of this statute and of the implementing Rule of Court is broad and unambiguous, and makes it unmistakably clear that juvenile courts have no power to grant continuances that would cause the dispositional hearing to be completed beyond the six-month period. Indeed, the courts have squarely so held: “[T]he juvenile court has no discretion to extend the time limits of section 352, subdivision (b).” (D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 511 (D.E.); see also In re Daniel S. (2004) 115 Cal.App.4th 903, 914 [juvenile court could not delay holding jurisdictional and dispositional hearing to appoint guardian ad litem for mother because of “strict time lines” dictated by statutory scheme, including § 352].)
In D.E. v. Superior Court, supra, minor’s father was incarcerated at the time the juvenile court conducted a joint jurisdictional and dispositional hearing for his children. At father’s request, the juvenile court continued the hearing several times on the ground that he was in custody and could not be present in court. Although the juvenile court issued an order of transportation to obtain father’s presence at the continued hearing date, the county in which he was in custody refused to release him. His attorney again orally requested a continuance, but did not file a written motion, and submitted no documentation supporting his claims. The juvenile court denied the motion to continue, which would have required the hearing to be continued beyond the six-month statutory deadline. The court affirmed, holding that even if father had a statutory right under Penal Code section 2625 to attend the dispositional hearing, “the juvenile court here was statutorily prohibited from further continuing [children’s] dispositional hearing to attempt to obtain [father’s] presence.” (111 Cal.App.4th at p. 510.) The court found that section 352’s prohibition of a continuance of the dispositional hearing past the six-month mark, which it characterized as “absolute,” took precedence over the parent’s arguable statutory right to be present at the dispositional hearing. (Id. at pp. 512-513.) The court explained that any conflict between the two statutory provisions must be resolved in favor of section 352 and its underlying policies: “The overarching goal of the juvenile dependency system is to promote the best interests of children within the system. [Citation.] Children in protective custody have an interest in the prompt resolution of their custody status. [Citations.] The parents of children in protective custody also have rights that must be protected to the extent possible. The parents’ rights, whether to participate in critical dependency proceedings or to obtain necessary reunification services, cannot be used to delay the dependency proceedings when a statute provides an absolute maximum limit on the time within which a particular hearing must take place.” (Id. at p. 513.)
The express and unequivocal statutory language is dispositive here. The six-month “absolute maximum limit” admitted of no exception, and left no room for the juvenile court to exercise any discretion. (See Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193 [“the discretion of the juvenile court is limited by the general time constraints governing dependency hearings”].) The detention hearing pursuant to section 319 was held on March 23, 2017. The final day of the dispositional hearing took place on Friday, September 22, 2017, exactly six months later. The continuance Mother sought would have delayed the hearing until at least the end of October, more than seven months after detention. Under section 352, subdivision (b), therefore, the juvenile court lacked the authority to continue the dispositional hearing.
B. The Denial Of The Continuance Request Did Not Violate Parents' Due Process Rights.

Mother and Father both contend that despite the mandatory statutory language, the juvenile court’s denial of their request to continue the dispositional hearing violated their right to due process. The authorities upon which Mother and Father rely do not persuade us the court acted improperly in refusing to continue the hearing past the six-month deadline.
The court in In re Richard H. (1991) 234 Cal.App.3d 1351, 1362, concluded the time limits of section 352, subdivision (b) were not “mandatory in the jurisdictional sense,” and that the juvenile court was therefore not required to dismiss a petition if the dispositional hearing was held more than six months after detention. The issue here, however, is not whether the juvenile court would have retained jurisdiction over the case had it granted the continuance, but whether it was bound by the statutory deadline.
In re A.R. (2009) 170 Cal.App.4th 733, the primary case relied upon by the parents, is inapposite. That case involved the requirement of the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. Appen. §§ 501-596) that a servicemember whose current military duty prevents his or her appearance in a judicial proceeding be granted a stay of proceedings for at least 90 days upon application. The court held that the SCRA overrode the time limitations of section 352, subdivision (b). (In re A.R., 170 Cal.App.4th at pp. 743-744.) The court acknowledged that the interests of the child in a dependency case in attaining a permanent, stable placement are exceedingly important, and that for this reason, such proceedings should be resolved as quickly as possible. (Id. at p. 743.) However, it reasoned that those principles “do not override congressional intent, as expressed in the SCRA, to strengthen national defense by providing for the temporary suspension of a court proceeding that might adversely affect the rights of an active military servicemember.” (Id.) Further, the court noted that in the SCRA, Congress had explicitly stated its intent to apply the legislation to state court child custody proceedings. (Id. at p. 744.) There is no similar conflicting statutory mandate here, nor have Mother and Father cited any other case in which a court found that the mandatory provisions of section 352, subdivision (b) were preempted or overridden.
In any event, even if a parent’s due process rights could override the statutory deadline under some circumstances, we are not persuaded by Mother and Father’s arguments that the juvenile court’s ruling here deprived them of their due process right to present evidence to rebut the section 355.1 presumption that Minor was a dependent child. (See In re D.P. (2014) 225 Cal.App.4th 898, 903-904 [“Once the petitioner establishes a prima facie case under section 355.1 the burden of producing evidence ‘shifts to the parents the obligation of raising an issue as to the actual cause of the injury or the fitness of the home’ ”]; In re Malinda S. (1990) 51 Cal.3d 368, 384 [“parents have significant dignity interests in being fully and fairly able to present their sides”].) Whether a due process right is violated will vary according to the facts of the case. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 832-835 [juvenile court did not violate father’s due process rights by limiting the experts who evaluated the child and by failing to allow him to call his own independent experts].)
This is not a case such as In re Amy M. (1991) 232 Cal.App.3d 849, 863-867, in which the court refused to allow a parent to call a necessary witness—a child who was the subject of the dependency proceeding—who was available to testify. The juvenile court could reasonably conclude Mother and Father had an adequate opportunity to prepare their case. (See People v. Fuiava (2012) 53 Cal.4th 622, 650 [“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.]”]; In re A.B. (2014) 225 Cal.App.4th 1358, 1366 [no abuse of discretion in denying continuance where mother’s counsel had two months to investigate case].)
C. Even If The Juvenile Court Had Discretion To Continue The Hearing, It Did Not Abuse Its Discretion In Denying Petitioners’ Request.

Finally, even if the juvenile court had discretion to grant a continuance past the six-month deadline, it did not abuse its discretion in denying the request.
“Continuances are discouraged in dependency cases. [Citation.] ‘[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to the 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary . . . .’ [§ 352, subd. (a).] Absent ‘exceptional circumstances,’ if a child is detained the dispositional hearing must be completed within 60 days of the detention hearing. (§ 352, subd. (b).) We review the denial of a continuance for abuse of discretion. [Citation.]” (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604-605; accord In re F.A. (2015) 241 Cal.App.4th 107, 117 [noting court has “broad discretion” in ruling on continuance].) To show the juvenile court abused its discretion in denying a continuance, the appellant must show the court “exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice.’ [Citation.]” (In re Emily D. (2015) 234 Cal.App.4th 438, 448.)
No such showing can be made here. The parents knew since March 2017, when Minor was detained, that there was evidence Minor’s injuries were caused by violent assaults rather than by trauma during birth and that the Department would be relying on that evidence. By April 13, they had retained the counsel who represented them throughout the proceedings below. They thus had nearly six months to obtain expert evidence about the cause of Minor’s injuries. On these facts, the juvenile court could reasonably conclude the parents had ample time between March and September 2017 to prepare their case. The juvenile court acted well within its broad discretion in concluding there was no showing of good cause to continue the hearing.
III. DISPOSITION
The petition is denied on the merits. (§ 366.26, subd. (l)(1)(C); Cal. Rules of Court, rule 8.452(h); In re Julie S. (1996) 48 Cal.App.4th 988, 990-991.) The stay of the hearing pursuant to section 366.26 is hereby lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)




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Schulman, J.*


We concur:


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Reardon, Acting P.J.


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Streeter, J.