Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK58842, Terry Trouhg, Referee.
Kate M. Chandler for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
D.R. (mother) appeals the denial of a petition for modification of an order placing mother’s two children, B.R. and M.R., in the care of their adult sibling. (Welf. & Inst. Code, § 388.) Mother contends the juvenile court erroneously denied the petition and the matter must be remanded with directions to conduct a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118. We reject these contentions and affirm the orders of the juvenile court.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
By order dated April 7, 2011, this court, on its own motion, ordered mother’s appeals in B228726 and B226884 consolidated for decision and opinion.
FACTUAL AND PROCEDURAL SUMMARY
We have taken judicial notice of the record on appeal in mother’s previous writ petition and appeals in case Nos. B220603, B216313 and B211031.
1. The detention of the children.
The children came to the attention of the Department of Children and Family Services (the Department) after mother enrolled then nine-year-old M.R. in elementary school in January of 2008 to avoid losing a motel voucher provided by Ocean Park Community Center (OPCC). When school staff asked about M.R.’s previous school, mother became loud and argumentative and stated M.R. stopped attending a school in Los Angeles in September of 2005. An assessment of M.R.’s educational development indicated she functioned at a kindergarten level. A police officer attempted to interview M.R. but had difficulty understanding her, even with the help of a vice principal. Mother’s OPCC case manager, who wished to remain anonymous, indicated concern about mother’s erratic behavior and hostile demeanor. The police officer investigating the matter learned mother had been the subject of a psychiatric hold in January of 2005. Further, mother is bipolar and was not receiving psychiatric services.
On the morning of January 30, 2008, police officers went to mother’s motel room and found M.R. home alone. M.R. did not know mother’s whereabouts. When mother returned, she became agitated and was arrested for child endangerment and resisting arrest. M.R. and her sister, 15-year-old B.R., were taken into protective custody.
The detention report indicated mother twice previously had been referred to the Department. In February of 2004, a school reported M.R. misbehaved in class, had poor socialization skills and frequently was absent. Mother told the reporting party M.R. was abused at the age of two years at a day care center. The reporting party offered mother mental health services but mother refused. M.R. did not return to school and attempts to contact mother were unsuccessful. In September of 2005, M.R.’s school reported mother was hostile toward school staff and mother stated M.R. was abused in four prior preschools. Mother refused to provide a contact phone number or address.
2. Placement with maternal uncle.
In February of 2008, the children were placed in the home of maternal uncle.
The jurisdictional report noted M.R. demonstrated developmental delays and significant speech delay and suggested referral to the Regional Center. The Department requested a psychological evaluation of mother because she appeared to have mental health issues that interfered with her ability to make appropriate parental decisions.
3. Adjudication of the dependency petition.
One week before the contested adjudication, the juvenile court granted mother’s request for self representation. At the start of the second day of the contested hearing, the juvenile court indicated its tentative ruling was to sustain the count that alleged mother left M.R. home alone for an extended period of time without adult supervision but it would not sustain the count alleging mother had mental health problems. After the social worker testified, the juvenile court sustained the petition as indicated and continued the matter for a contested disposition.
The first and second attorneys appointed to represent mother successfully moved to withdraw as her counsel. The third attorney appointed to represent mother was relieved when mother requested pro per status.
4. Disposition.
The disposition report indicated mother had not shown any willingness to cooperate in the case plan and, on September 3, 2008, the principal of M.R.’s school reported mother attempted to disenroll M.R. because M.R. had not been placed in the fourth grade. Mother was “confrontational and challenging.”
The juvenile court ordered mother to attend parenting class and individual counseling to address case issues. The juvenile court ordered the children removed from mother’s care and ordered mother to participate in a mental health assessment. The juvenile court acknowledged it had not sustained the count alleging mother had mental health issues but indicated, “I do believe that there is something going on here.”
5. The six-month review hearing.
A status report for the six-month review hearing indicated mother was not in contact with the social worker. Maternal uncle reported mother visited regularly and the children indicate the visits go well. M.R. had been accepted as a client of the Regional Center, having been diagnosed with mild mental retardation.
On March 24, 2009, the juvenile court rescinded its order directing mother to participate in a mental health assessment because the Department of Mental Health would not assess individuals who indicate they do not need an assessment.
6. The 12-month review hearing.
A social report prepared for the 12-month review hearing indicated the social worker continued to try to contact mother without success. However, mother had provided proof of enrollment in a 12-week parent education and an anger management course, and proof that she had commenced weekly counseling sessions with Noelle Lee, a psychology intern. On March 30, 2009, the social worker contacted the psychology intern who indicated mother’s counseling sessions focused on parenting issues but, because mother had not signed a release, no further details could be provided.
The report indicated the Department could not safely allow unmonitored visits without first knowing where mother lived. Further, the Department did not know what was being covered in mother’s therapy sessions or if the therapist had concerns regarding mother’s mental health.
At a hearing on April 10, 2009, mother’s counsel requested unmonitored visitation and indicated mother would not sign a release but would ask her therapist to submit a letter regarding mother’s progress in counseling. The juvenile court denied mother’s request for unmonitored visitation, stating: “I don’t know what the status is of the mother’s counseling. I need her to sign the release. She was ordered to sign such a release at the disposition hearing.”
7. The 18-month review hearing.
a. Social reports.
A social report dated September 24, 2009, indicated Noelle Lee, mother’s psychology intern, had reported that mother attended 18 sessions of therapy ending June 22, 2009. The report concluded it was not in the children’s best interest to return to mother at this time due to mother’s continuous instability with regards to housing and her failure to address her mental health issues.
At the hearing on September 24, 2009, mother signed release of medical records held by Noelle Lee and the matter was continued for receipt of further information.
A social report submitted October 7, 2009, included a letter from Noelle Lee’s supervisor which stated: “Although [mother] completed approximately 18 counseling sessions, she was not able to understand her responsibility in the protection of her youngest child. She spent most of her sessions complaining about the social worker and the system that took her children.... [¶]... [¶] Most of the sessions were about her incessant talking about her anger at the courts, social workers and organized institutions and systems.... She had paranoid tendencies, not trusting most people. She felt that the social worker was evil, and reported being victimized most of her life by others on several occasions. [¶] It is recommended that [mother] continue psychological assessment to determine possible need for medication and/or possible SSI qualification. Although she loves her children and desires to have them back, more [in depth] monitoring and treatment and increased life skills are recommended if family reunification is being considered.”
The social worker was unable to communicate with mother’s therapist at the Veterans Administration (VA) because mother would not sign a release of VA information. However, on October 1, 2009, mother provided the social worker with a letter from Bing Hsu, M.D., mother’s psychiatrist at the VA, dated March 2, 2009. In the letter, Dr. Hsu indicated he treated mother for approximately one year in 2005 and treated her again in 2009. Dr. Hsu stated mother had been diagnosed with “a chronic psychiatric condition for which she is receiving treatment.” Dr. Hsu noted mother had been treated by others since 2002 but there had never been any report of potential harm to mother’s children based on her action or lack of action.
The Department complained that, notwithstanding Dr. Hsu’s letter, it remained unaware of the nature of mother’s psychiatric condition, whether mother is required to take medication and whether mother is compliant. Further, Dr. Hsu’s statement mother had never been the cause of potential harm to the children suggested the doctor was unaware of the basis for the current dependency proceeding.
On November 3, 2009, mother reported she had leased an apartment. Mother did not provide proof of this information and did not want the social worker to communicate with the landlord. Mother also indicated she receives $1,200 a month in disability income but did not provide proof of income.
b. Termination of family reunification services.
On November 5, 2009, the juvenile court found the issues that brought the children into the dependency system had not been resolved and that mother had refused to cooperate with the Department. The juvenile court set a hearing under section 366.26 on March 5, 2010, to consider a permanent plan of legal guardianship with maternal uncle for M.R. The juvenile court directed the Department to interview B.R. with respect to her preferred permanent plan. At the close of the hearing, the juvenile court granted mother unmonitored visitation.
8. Post-termination proceedings.
In a report prepared for March 5, 2010, the Department indicated maternal uncle left the state on January 14, 2010, to address a family emergency and the children had been placed in the care of their adult sister.
The juvenile court placed the permanency planning hearing off calendar and continued the matter for review.
A social report prepared for May 6, 2010, indicated the children continued to reside with their adult sibling, who had no problems or concerns caring for the children in her home. B.R. and M.R. indicated they enjoyed living with their sister but wanted to return to mother’s home. Both children missed being with mother on a daily basis. The Department reported the children enjoyed unmonitored visits with mother, they visit a variety of places and the visits were going well without any incidents.
The report indicated that on March 1, 2010, the supervising social worker and the case carrying social worker went to mother’s residence but mother allowed only the supervising social worker to enter the home. When the supervising social worker asked to see documentation indicating mother had attended counseling, mother stated she already had provided it to the juvenile court. However, the supervising social worker was unable to find any documentation of mother’s counseling in the juvenile court file. The supervising social worker concluded mother’s home was appropriate but, without verification of mother’s completion of counseling, the Department could not recommend placement of the children in mother’s home.
At the hearing on May 6, 2010, the juvenile court continued the children in a permanent plan of placement with their adult sibling with the goal of returning the children to mother when appropriate. The juvenile court found mother had made minimal progress toward mitigating the causes that necessitated placement of the children but granted mother’s request for overnight visitation and continued the matter for a review hearing on November 4, 2010.
9. Mother’s section 388 petition.
On July 9, 2010, mother filed a section 388 petition requesting placement of the children in mother’s home. The petition noted mother’s unmonitored visitation had gone well and there had been no reports of any incidents. Mother had lived in her current apartment since November of 2009, both children wished to live with mother, and there was no current risk of harm to the children in mother’s care. The juvenile court granted mother’s request for a hearing on the petition.
The Department filed a social report to address mother’s petition. It indicated that, when the social worker telephoned mother to inquire about mother’s individual counseling, mother became “very hostile and stated she already [had] provided the completion of the counseling certificate to [the juvenile] court several months ago.” However, the file contained no indication mother had completed counseling. Further, mother’s psychiatrist was unable to provide information because mother was unwilling to sign a release. The report concluded that, although mother’s home was appropriate, the Department could not recommend return of the children to mother’s care without verification that mother had completed counseling.
On August 20, 2010, before adjudicating the section 388 petition, the juvenile court conducted a hearing pursuant to People v. Marsden to consider mother’s assertion an irreconcilable conflict had developed between mother and mother’s counsel. After hearing from mother and counsel, the juvenile court denied mother’s request for substitution of counsel, noting mother had been represented by two previous attorneys and the conflict between mother and current counsel did not prevent effective representation. The juvenile court noted counsel had an obligation to inform mother how counsel believed the juvenile court would rule and mother’s disagreement with the ruling counsel anticipated was insufficient to warrant appointment of substitute counsel.
With respect to the section 388 petition, mother personally addressed the juvenile court. Mother stated, “God has taken me from zero to one hundred.” Mother indicated she now had stable housing and income, the children were happy with her, there had been no incidents of abuse and mother felt the Department had never proved its case of neglect in the first instance. As a result of mother’s overnight visitation, M.R.’s reading had improved and mother and the children had engaged in numerous activities such as cooking, reading and visiting the park. Mother stated she had put M.R. “in a position where she wants to learn on her own.... And I don’t want that to stop.”
Counsel for the children joined in mother’s request.
The juvenile court found insufficient evidence of changed circumstance and referred the case to family preservation. The juvenile court stated that, if mother agreed to participate in family preservation and individual counseling services were in place, the juvenile court would grant mother’s petition. The juvenile court indicated it did not believe the counseling mother had received had addressed case issues.
10. Subsequent social reports and review hearings.
A social report prepared for a hearing on October 1, 2010, indicated the social worker had mailed a certified letter to mother’s address and left three telephone messages asking mother to contact the social worker to sign the necessary family preservation services referral. However, the social worker had received no response from mother.
At the hearing, the juvenile court indicated the matter was on calendar for a progress report on the family preservation referral. Mother stated she had not spoken to anyone about family preservation services. The juvenile court advised mother family preservation services work with parents and their children in the home and usually are ordered in anticipation of returning children to the home. However, the services are voluntary and cannot be put in place unless the parent is willing to cooperate. Mother responded she saw no need for home visits and would not voluntarily participate in family preservation services. The juvenile court indicated it was trying to help mother and, given that mother had failed to participate in the individual counseling aspect of the case plan, family preservation services were needed to ensure the children would be safe in mother’s home. Mother responded members of her religion went “to god for... counseling. [W]e don’t go to humans.” Mother indicated she has had an apartment for nearly a year and the matter mistakenly had been brought before the juvenile court in the first place. When mother persisted in asserting she now had an apartment, the juvenile court advised mother to speak to her attorney about family preservation services. Mother replied, “She never talks to me.” The juvenile court assured mother her attorney would speak to her about the family preservation referral after the hearing and concluded the matter.
A report prepared for a review hearing on November 4, 2010, indicated the children continued to reside with their adult sister and the “placement remains stable and appropriate for both youths.” Both children indicated they wanted to return to mother’s home as soon as possible, they missed residing with mother and they looked forward to visits with her. The Department indicated mother’s unmonitored visits with the children were reported to be going well and requested continuation of the current placement.
At the hearing, counsel for the children indicated the children wished to return to mother’s care and B.R., who would turn 18 years of age within the next two months, had indicated she would live with mother when she attained majority.
Mother addressed the juvenile court and again requested return of the children. The juvenile court advised mother family preservation services would not be provided by the Department but by a separate agency. However, mother had to agree to participate in the services. Mother asked the juvenile court to help her understand why the children had not been returned to her in that she had completed parenting class and had stable housing. When the juvenile court again indicated it was concerned with mother’s failure to comply with the individual counseling component of the case plan, mother asked, “Why do we need counseling? We’ve lost three years.” The juvenile court asked mother to speak to her attorney who would explain family preservation services and inquired whether mother had received a written description of family preservation services, which was available in the courtroom. Mother responded her attorney did not talk to her and she had received nothing. The juvenile court again referred mother to the written material in the courtroom and asked mother to think about it. Mother then asked if family preservation services included home visits. The juvenile court indicated affirmatively and stated it had ordered a family preservation referral to “oversee[] the family so that I would feel comfortable releasing the children to you.”
Mother responded, “But I mean, they’re coming to my house to inspect what?” The juvenile court advised mother it had asked mother to speak with her attorney to explain the family preservation services. Mother replied, “Again, [counsel] doesn’t talk to me.” The juvenile court stated, “Well, she’s telling me otherwise.” Mother replied, “Well, of course, she is. She works for you.” The juvenile court indicated that was incorrect and ordered the present placement to continue in effect.
CONTENTIONS
Mother contends the juvenile court erroneously denied her petition for modification and the matter must be remanded with directions to conduct a Marsden hearing.
DISCUSSION
1. No abuse of discretion in the denial of mother’s section 388 petition.
Mother contends the juvenile court should have granted her petition for modification because she established a change of circumstances in that she had appropriate housing and a stable source of income, she was in therapy at the VA, she had completed the case plan and she was participating in unmonitored overnight visitation without incident. Mother asserts she had strong ties to the children and she actively was assisting her adult daughter in the care of the children by cooking for the children and helping M.R. with her homework, thereby making appropriate use of her visitation to bond with the children. (Cf. In re S.J. (2008) 167 Cal.App.4th 953, 961.) Additionally, the repeated requests of the children to be placed with mother indicated it would have been in their best interests to return them to mother’s care. (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) Mother claims she had overcome all major obstacles to reunification. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-533.)
Mother argues her children came to the attention of the juvenile court because mother left B.R. at home while she walked M.R. to the bus stop. Thus, the reason underlying the assertion of dependency jurisdiction was not serious. (In re Kimberly F., supra, 56 Cal.App.4th at pp. 530-531.) Further, although the juvenile court asserted jurisdiction on this sole basis, the Department repeatedly and inappropriately cited mother’s homelessness, hostility and lack of cooperation with the social worker, as well as mother’s mental problems, as grounds for not returning the children to mother’s care. Further, mother’s efforts at recovery predated the Department’s involvement with the family in that mother was in counseling at the VA before the children were detained. Thus, mother’s efforts were not recent. (Cf. In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.)
Mother concludes she overwhelmingly showed the problems that led to her children’s dependency had been overcome and the order denying her section 388 petition must be reversed. Mother notes nothing that occurred at the review hearings on October 1 or November 4, 2010, undermines her claim of error.
We are not persuaded the juvenile court erred in denying mother’s petition.
Section 388 permits an order of the juvenile court to be changed, modified or set aside if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The factors to be examined in determining the merits of a section 388 petition include, “the seriousness of the reason for the dependency, ” “the strength of the existing bond between the parent and child, ” and “the nature of the change, the ease by which the change could be brought about, and the reason the change was not made before....” (In re Kimberly F., supra, 56 Cal.App.4th at pp. 530, 531.) A juvenile court’s ruling on a section 388 petition is reviewed for abuse of discretion. (In re Stephanie M., supra, at p. 318.)
Here, the juvenile court found mother’s progress under the case plan was insufficient to warrant return of the children to mother without family preservation services. This conclusion is supported by the record.
Mother’s reliance on her appropriate housing and stable income is misplaced. As the juvenile court repeatedly advised mother, the juvenile court’s reluctance to return the children to mother’s care was grounded in mother’s failure to comply with the individual counseling aspect of the case plan. Thus, contrary to mother’s assertion, she had not completed the case plan and, because mother refused to sign a release, there was no evidence she was in therapy at the VA.
Although the mental health allegation of the dependency petition was not sustained, the record contains substantial evidence indicating mother had mental health issues that affected her ability to supervise the children. At the outset of the case, M.R. had not been attending school for three years, reflecting mother’s poor judgment in educational matters affecting her children. Mother later attempted to disenroll M.R. when the school refused to place her in the fourth grade. At the disposition hearing, the juvenile court ordered mother to participate in a mental health assessment, stating: “I do believe there is something going on here.” The juvenile court later rescinded this order because the Department of Mental Health would not assess anyone who had been referred unwillingly. However, the letter from mother’s psychiatrist, which mother apparently submitted to show she did not require individual counseling, indicated mother had been under the care of mental health professionals since 2002, and that she had been diagnosed with “a chronic psychiatric condition.” Mother refused to sign a release of her VA medical information that would have allowed the juvenile court to assess her mental health, whether she had been prescribed psychotropic medication and whether she was compliant with the medical advice she had received.
It appears the juvenile court decided to forgo proceedings on the mental health allegation of the dependency petition because, at the time of the adjudication, mother was representing herself and prosecution of the additional count would have been superfluous given that the Department already had established the truth of the count alleging neglect.
A report from mother’s counseling provider indicated mother attended 18 sessions in 2009. However, mother reportedly was unable “to understand her responsibility in the protection of her youngest child. She spent most of her sessions complaining about the social worker and the system that took her children....” During the sessions, mother spoke “incessant[ly]... about her anger at the courts, social workers and organized institutions and systems.... She felt that the social worker was evil, and reported being victimized most of her life by others on several occasions.” The report conceded mother loved her children but recommended additional “psychological assessment to determine possible need for medication and/or possible SSI qualification.”
Despite mother’s refusal to attend individual counseling, the juvenile court granted mother unmonitored visitation in November 2009. Six months later, her visits were liberalized to overnight and the juvenile court indicated the goal was to return the children to mother’s care. However, mother refused to agree to family preservation services. Given the history of this case, the juvenile court was not unreasonable in refusing to return the children to mother’s care without family preservation services in place.
Based on mother’s failure to comply with the critical individual counseling aspect of the case plan, her refusal to agree to family preservation services, and her inability to understand her role in the dependency proceedings, the juvenile court reasonably could conclude it would not be in the best interests of the children to place them in mother’s care without family preservation services. Nothing in the social reports prepared for the hearings of October 1 and November 4, 2010, suggested mother had made any progress in this regard. Because mother failed to demonstrate she had overcome the problems underlying the assertion of dependency jurisdiction, no abuse of the juvenile court’s discretion appears in the denial of mother’s section 388 petition.
2. The record does not support mother’s claim of Marsden error.
Mother contends her statements at the hearings of October 1, 2010, and November 4, 2010, that her counsel refused to speak to her regarding the nature of family preservation services implied that appointed counsel’s performance had been inadequate and triggered an obligation on the part of the juvenile court to conduct a Marsden hearing. (People v. Lara (2001) 86 Cal.App.4th 139, 151.) According to mother, the juvenile court improperly accepted appointed counsel’s apparent denial of mother’s accusation that counsel would not speak to her. Mother claims the juvenile court’s reference to material outside the record is insufficient to discharge its obligation to conduct a Marsden hearing. Mother requests remand to permit the juvenile court to address the adequacy of mother’s representation and to appoint new counsel if needed.
Mother’s claim is meritless.
“The law governing a Marsden motion ‘is well settled. “When a defendant seeks to discharge... appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of [the] contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’ [Citation.]” (People v. Memro (1995) 11 Cal.4th 786, 857.) Marsden principles apply to dependency proceedings. (In re Z.N. (2009) 181 Cal.App.4th 282, 289.) Although no formal motion is necessary, there must be “at least some clear indication by defendant that he [or she] wants a substitute attorney.” (People v. Dickey (2005) 35 Cal.4th 884, 920; People v. Valdez (2004) 32 Cal.4th 73, 97; People v. Mendoza (2000) 24 Cal.4th 130, 157; People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.)
Here, the record demonstrates mother knew how to request substitution of counsel in that the juvenile court conducted a Marsden hearing on August 20, 2010, at which mother stated the nature of her disagreements with counsel. Thus, mother’s assertion her counsel refused to speak to her about family preservation services, without an attendant request for new counsel, was insufficient to trigger an obligation to conduct a Marsden hearing. Rather, mother’s assertion counsel refused to speak to her about family preservation services was consistent with mother’s refusal to review written material about family preservation, her refusal to contact the social worker to discuss those services and mother’s refusal to cooperate in the provision of those services.
We conclude that, in the absence of any clear indication mother desired new counsel, the juvenile court was not required to conduct a Marsden hearing.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: CROSKEY, J., KITCHING, J.