Opinion
NOT TO BE PUBLISHED
Super. Ct. No. VSQ015001902
HULL, J.Marilyn T., mother of the minors, appeals from orders of the juvenile court issuing a restraining order against her and denying her Marsden motion (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). We affirm the orders.
Facts and Proceedings
Because the record in this case is limited, the factual and procedural background is similarly limited. But we note, based upon prior opinions in earlier appeals, the minors have been declared dependents and are placed in long-term foster care. (In re Amy T. (May 6, 2004, C043154) [nonpub. opn.]; In re Amy T. (Jun. 25, 2004, C044609) [nonpub. opn.].)
In April 2007, Siskiyou County Human Services Department (HSD) filed an application for a restraining order to protect social worker Gail from appellant. HSD sought an order that appellant remain 100 yards away from Gail’s person, home, vehicle and workplace. Several supporting statements were attached to the application.
In his statement, Gail said appellant came to the HSD office on April 11, 2007, to discuss issues relating to reunification services in 2002. He told her to speak with her attorney. Appellant rambled on about various matters, being loud and animated and “swatted” Gail on the shoulder as she left. He felt threatened when she stood over him and gestured wildly. He had asked appellant to quiet down and sit down several times but appellant complied only briefly.
A second statement, by social worker S.H., stated that, being aware of past incidents with appellant, she purposely found a position where she could observe the April 11, 2007 interaction between Gail and appellant. S.H. observed that appellant was very upset and alternated between standing up, jumping up and down, pacing, sitting and leaning forward and once slammed her hand down on the table next to the chair where Gail was sitting. She saw appellant toss her briefcase to the floor then into a chair. Appellant was yelling in a loud voice most of the time about her belief that HSD committed fraud and had lied. The interaction lasted about 15 minutes. At the end of the interaction, appellant slapped Gail on the shoulder and stormed out of the office. During the incident, S.H. was concerned for Gail.
A third statement, from the deputy director of HSD, stated appellant came to her office after the incident with Gail. The deputy director spoke with her because the individuals appellant had asked to speak with were not available. Appellant “immediately launched in to [sic] a ‘tirade’ on the ‘fraud’ being perpetrated by Human Services.” The deputy director tried to explain matters to appellant but appellant kept interrupting and then talked about her earlier meeting with Gail. During the 10-minute conversation, appellant jumped rapidly from topic to topic and appeared very agitated. As appellant’s agitation escalated, the deputy director decided to terminate the conversation. While not feeling threatened, the deputy director noted appellant was more agitated and aggressive than in prior meetings and appeared unable to control her wandering train of thought.
At the hearing on the temporary restraining order, appellant complained about counsel’s representation, alleging he failed to file a petition for extraordinary writ and was hostile to her. Appellant informed the court she found new counsel who would accept the appointment. The court responded it would consider a new appointment if the attorney appeared and offered to represent appellant. Appellant’s counsel addressed the court on the terms of the proposed restraining order. Appellant’s outbursts before and during counsel’s comments led the court to exclude her from the proceedings. The court granted a temporary restraining order and set the matter for further hearing and a Marsden motion.
At the Marsden hearing, appellant told the court she had evidence in the case she wanted to present that counsel would not introduce on her behalf. Appellant referred the court to a declaration containing “evidence” she believed was in her favor. The declaration referred to testimony from various hearings over the years and a videotape she made of a recent visit, identified claimed errors in the report for the pending Welfare and Institutions Code section 366.26 hearing (undesignated section references that follow are to the Welfare and Institutions Code), claimed social workers had lied about and belittled her and that counsel failed to file a writ petition challenging the setting of the section 366.26 hearing. Appellant also submitted a letter challenging counsel’s representation. Both documents were marked “received” but were evidently not filed.
At the hearing, appellant further contended there had been a breakdown in communications and that counsel had not met with her since their first meeting. Finally, appellant asserted that counsel let the agency commit fraud by writing reports which left out evidence she considered important.
Counsel responded that, since being appointed to represent appellant, he had litigated every factual issue which arose, including fraud, and noted that the decision of which evidence to present was the attorney’s decision, not the client’s. Counsel pointed out he had no control over the agency and was unable to allow or disallow them to commit fraud. He stated he was aware appellant was upset at the lack of a petition, but that in his opinion, there were no issues to be raised. Finally, counsel agreed that communication was the crux of the matter and acknowledged that it was strained but not completely broken down. He disagreed with appellant’s facts, stating that he met with her at her home at least twice and had numerous conversations with her either at court or near the courthouse. The court did not find that counsel had failed to do anything that was required of him but was concerned about the communications issue. The court noted appellant previously had numerous attorneys and had a pattern of communications problems which led to changing counsel. The court was willing to see if appellant’s proposed counsel was available for appointment, not as a reflection on current counsel’s representation, but as a practical matter.
At the hearing on the restraining order, it appeared to the court that appellant’s choice for counsel had a conflict. As there was no ground for relieving current counsel, the court proceeded to the hearing on the restraining order.
Gail, who is the social worker currently assigned to appellant’s active dependency case, testified he had an interaction with appellant on April 11, 2007, in the lobby of his workplace on South Broadway where she had arrived without an appointment. Appellant wanted to address her concerns about the dependency jurisdiction and reunification services. Appellant started the conversation in a fairly reasonable manner but tended to go from subject to subject and was hard to follow. Because her complaints focused on matters early in the dependency, he directed her to talk to her attorney. She became agitated, walking around the area, close to him at times and with her voice raised, gesticulating and accusatory. Eventually appellant hit him on the shoulder and left the office. Gail demonstrated how appellant hit him and testified he was not in fear of his life during the encounter, but did fear he would be struck or injured. He stated that the deputy director and director of the HSD were in offices on South Main Street. Gail further testified that if a restraining order were issued, appellant could still contact HSD by telephone during specific hours or through her attorney. During Gail’s testimony, appellant twice interrupted the proceedings and was ordered to leave the courtroom.
Appellant also testified about the interaction with Gail and, while she did not recall hitting him, acknowledged she had a tendency to pat people on the shoulder and that his demonstration of the contact was harder than she would normally pat someone. Appellant said she simply left the office because, once again, the social worker would not address the falsity of the report for the pending section 366.26 hearing or consider her evidence of past problems, instead referring her to her attorney. After she left the South Broadway office, appellant immediately went to the South Main Street office believing the employees there would be more helpful to her and thought her meeting there went well.
The court asked for counsel to focus arguments on the apparent conflict between the necessity of interaction due to the ongoing cases and appellant’s disruptive behavior. Once again, the court had to exclude appellant from the courtroom. HSD argued that appellant could submit paperwork by mail or through counsel and that there was a special e-mail address set up for her to contact her children that she had used in the past to present legal issues. HSD noted the restraining order was focused on appellant’s physical presence at their offices and protection of social worker Gail.
Appellant’s counsel argued that HSD employees had dealt with appellant before and were aware of her proclivities. Further, the social worker was not in fear of his life and the fact was that appellant was a person who touches people. Counsel recognized that there were alternative means of contact set up but argued the restraining order was an unreasonable restriction.
The court stated it intended to issue a restraining order and directed counsel to agree on the terms. Pursuant to the court’s order and the agreed-upon terms, appellant was ordered to stay 100 yards away from Gail, his workplace, residence and vehicle and the HSD office on South Main Street.
Discussion
I
Substantial Evidence
Appellant’s opening brief is entirely unclear as to the issues she is raising. The best that we can tell, she is contending that substantial evidence does not support the court’s rulings denying her Marsden motion and issuing the restraining order. Respondent, no doubt similarly burdened in ascertaining the arguments to which responses were required, has raised several issues that we do not view as fairly presented by the opening brief and will not address them.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L.,at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) As we shall see, substantial evidence supports each of the orders from which the appeal is taken.
A. The Marsden hearing
In a criminal case, when a defendant requests substitute counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current counsel is not adequately representing him. (Marsden, supra, 2 Cal.3d at pp. 123-124.) The court need not grant the request for substitution of counsel absent a showing that denial would substantially impair the parent’s right to the assistance of counsel. (Id. at p. 123; People v. Turner (1992) 7 Cal.App.4th 913, 917.)
In a dependency proceeding, the parents have a statutory and a due process right to competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, fn. 6.) Parents for whom counsel is appointed must have some mechanism for challenging the representation when they perceive inadequacy or the right to counsel is meaningless. Thus, juvenile courts, relying on the Marsden model, have permitted the parents to air their complaints about appointed counsel and request new counsel be appointed. An exhaustive Marsden hearing is not required in a dependency action. It is only necessary that the juvenile court “make some inquiry into the nature of the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.)
Substitute counsel should be appointed when, in the exercise of the court’s discretion, the court finds either that counsel is not providing adequate representation or there is such an irreconcilable conflict between the client and counsel that ineffective representation is likely to result. (People v. Smith (1993) 6 Cal.4th 684, 696.) Disagreement on trial tactics does not necessarily compel appointment of new counsel. (People v. Williams (1970) 2 Cal.3d. 894, 905.)
In this case, the court made a full inquiry of appellant’s dissatisfaction with counsel and allowed counsel to respond. To the extent that appellant’s complaints revolved around presentation of evidence, counsel correctly pointed out that this area was within counsel’s choice of trial tactics. Similarly, counsel is not required to file a meritless writ petition. As to appellant’s complaints that counsel was allowing HSD to commit fraud, we agree with counsel that he has no control over the actions of the agency and is limited to litigation of issues as they arise in the case. On the question of communication, the evidence was in conflict. It appears that the juvenile court resolved the conflict adversely to appellant. Substantial evidence supports the juvenile court’s finding that there was no impairment of appellant’s right to the assistance of competent counsel. The juvenile court did not abuse its discretion in denying appellant’s Marsden motion.
B. The restraining order
An employer has an interest in providing a workplace for its employees which is free of violence, intimidation and harassment. The Legislature has recognized this interest and provided a means by which an employer may secure an injunction on behalf of an employee who “has suffered unlawful violence or a credible threat of violence from any individual” that has been carried out at the workplace, and on behalf of “any number of other employees at the workplace, and, if appropriate, other employees at other workplaces of the employer.” (Code Civ. Pro. § 527.8, subd. (a); USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 443.) For purposes of this statute, unlawful violence is defined as any assault or battery. (Code Civ. Proc., § 527.8, subd. (b)(1).)
The evidence showed that appellant was agitated and gesticulating while walking around and near Gail during their discussion. He feared he would be hit or injured and ultimately appellant did hit him before she left. Based upon the statements attached to the petition and the testimony, appellant was often upset, angry and agitated when dealing with HSD employees and this represented an escalation in appellant’s behavior. The deputy director to whom appellant spoke after her interaction with Gail also noted an increase over appellant’s general level of agitation and aggressiveness.
While we recognize that social workers and supervisors in dependency cases must deal with upset angry parents on a daily basis and find ways to defuse volatile situations, we do not believe that they should be required to deal with assaultive behavior on the part of individuals who are unable to place appropriate boundaries on their own conduct. The evidence before the court demonstrated appellant had several ways to communicate information and concerns she had about the ongoing dependency proceedings to HSD and would not be unduly restricted in doing so by the proposed restraining order. Ample evidence supports the issuance of both the temporary restraining order and the restraining order. No abuse of discretion appears.
Disposition
The orders of the juvenile court are affirmed.
We concur: DAVIS, Acting P.J., NICHOLSON, J.