In re Damonique S.

Filed 7/18/06 In re Damonique S. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Debra L. Losnick, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Wilbert S., in pro. per, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

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Wilbert S., the father, appeals from the court's family law custody order placing his daughter with her mother. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Wilbert's daughters, Davida and Damonique, were born in December 1986 and October 1988, respectively. Davida thus turned 18 in 2004, and Damonique will turn 18 in October of this year. The girls lived with appellant in Long Beach under his custody agreement with their mother, who lived in Loma Linda.

On May 16, 2004, appellant discovered a cell phone under Davida's pillow. Upset because he did not allow the girls to have cell phones, he began searching the rest of Davida's bedroom. Davida resisted his search, and they began to fight, during which he pinned her on her bed and choked her.

The next day, Davida told her mother she was sore. Her mother called the Department of Children and Family Services. On May 19, 2004, case social worker Kellie Lovo visited the girls at school to investigate the complaint. Davida told Lovo that her father had choked her. Concluding the girls were at imminent risk of harm, Lovo detained the girls and released them that same day to their mother.

Five days later on May 24, 2004, the department filed a petition against appellant under Welfare and Institutions Code section 300.[1] The petition alleged appellant had physically abused Davida on May 16, 2004, by repeatedly pushing her against her bed and dresser and choking her, and alleged he had similarly abused her in the past. The petition also alleged appellant had physically abused Damonique by repeatedly pushing her against a shower door and choking her, and had similarly abused her in the past. Finally, the petition alleged appellant's abuse of each sister placed the other one at risk. The petition asserted three grounds for jurisdiction over the girls: (1) risk of serious physical harm (§ 300, subd. (a)); (2) failure to protect (§ 300, subd. (b)); and (3) abuse of a sibling (§ 300, subd. (j)).

At the detention hearing on May 25, 2004, appellant, who had graduated from law school but was not a practicing lawyer, waived his right to counsel in order to represent himself with the assistance of court-appointed advisory counsel. A week later, appellant filed a demurrer to the petition. He argued it lacked a concise statement of facts needed to establish jurisdiction.

Two weeks later, appellant moved to disqualify Commissioner Losnik on the ground she was predisposed against parents who represented themselves. (Code Civ. Proc., § 170.1(a)(6)(c).) Commissioner Losnik struck appellant's statement of disqualification on the grounds it failed to state any legal basis for her disqualification, and denied the motion. Appellant sought writ relief in this division. This division issued a Palma writ (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171) inviting the trial court to avoid a peremptory writ by vacating its order striking appellant's statement of disqualification and assigning the disqualification motion to another judge. The trial court complied with the writ. Another judge heard appellant's motion for disqualification and denied it.

In the meantime, appellant moved to compel discovery from the department. Among other discovery, he sought the deposition of case social worker Lovo.

On November 9, 2004, the court overruled appellant's demurrer to the petition. It also denied his motion to compel the deposition of social worker Lovo. The next day, appellant moved for more discovery. The court granted his motion in part, but ordered him not to make any more formal discovery requests.

The jurisdictional hearing on the petition began on November 23, 2004. The hearing thereafter continued over some portion of seven more days (December 7, 8, 14, 15, January 4, 19, and 26). On January 27, 2005, the court sustained the petition. It found appellant had physically abused Davida and Damonique by repeatedly pushing them against household objects and choking them. As Davida had turned 18 in the interim, however, the court dismissed her from the petition.

Appellant moved for a contested disposition hearing as to Damonique. At the end of the disposition hearing, the court placed Damonique in her mother's home and awarded mother sole legal and physical custody. The court granted appellant monitored visitation. (§ 361.2 [when child removed from home of one parent, court shall place child with non-offending parent with whom child had not been living].) The court entered a family law custody order implementing its dispositional rulings. The court thereafter terminated its juvenile court jurisdiction. This appeal followed.

DISCUSSION

Purported Errors in the Court's Exercise of Jurisdiction

Appellant contends the court erred by not immediately taking testimony and receiving evidence the day the petition was filed, in violation of his right to a speedy detention hearing. He also contends the court erred by not returning his daughters to him when the department took more than 48 hours to file its section 300 petition, and failed to hold the detention hearing within five days of the department's detention of the girls. A common fatal flaw to all these contentions is the right to a speedy detention hearing rests on the children being detained. (See § 315 [right to detention hearing applies when â€