Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. Nos. J0601192, J0601193, J0601194.
Pollak, J.
Defendant Andres A., Sr. appeals from juvenile court orders declaring three of his children, now ages eleven, nine and eight, to be dependents under Welfare and Institutions Code section 300, subdivisions (a) and (b) and removing them from his custody pursuant to section 361, subdivision (c)(1). He contends that the court’s findings are not supported by substantial evidence and that the court erred in denying his motion for appointment of substitute counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden). We affirm.
All statutory references are to the Welfare and Institutions Code.
Background
Andres has five children: two teenaged sons from his first wife and two daughters and a third son from his second wife. The three youngest children are the subjects of this appeal. Prior to the filing of the present petition, the family was referred to county child protective services departments ten times in four different counties. Most of the allegations were determined to be unfounded or inconclusive, although a petition was sustained in 1998 based in part on Andres’s substance abuse, domestic violence, and neglect of his eldest daughter. The family received reunification services and the petition was dismissed in 2000.
Andres’s notice of appeal purports to appeal from orders entered in the dependency proceedings involving his two older children. The petitions relating to these children, however, have been dismissed and Andres raises no issues concerning those petitions.
Since 2004, when Andres separated from his second wife, he has been the primary caretaker of all five children. He is fully employed with a stable income and medical insurance and the family lives in a clean three-bedroom home.
On June 20, 2006, Andres learned that his second wife had committed suicide. He left one of the younger children with his then 14-year-old brother and took the other two children with him to the mortuary in Clear Lake. Andres was arrested at the mortuary after causing a disturbance when denied access to his wife’s body. The two children spent the night in Clear Lake with their maternal relatives. When Andres was released from custody the next day, he and the children returned home.
By this time, Andres’s eldest child had moved out of the family home and was living with his girlfriend’s family.
While Andres was in custody in Clear Lake, the Richmond Police Department was informed that two of Andres’s children had been left alone in Richmond. The police responded to the family home and the children were detained. The other two children were detained when they arrived back in Richmond.
On June 23, 2006, the Contra Costa Department of Children and Family Services (the department) filed dependency petitions alleging that the three youngest children came within section 300, subdivision (b). The petitions were later amended to include allegations under section 300, subdivision (a). On June 26, the court retained the children in detention, finding that “[c]ontinuance of the [children] in the home is contrary to the [children’s] welfare”.
At the contested jurisdictional hearing, Andres’s oldest son testified that in June 2006, his father had grabbed him by the neck and pushed him down the stairs. He and his father were both drunk at the time. He testified that he began drinking alcohol with his father at the age of 13 or 14. He also testified that he had seen Andres punish the younger children by hitting them with a broomstick. He also testified that he had heard the youngest child complain to his father that his teeth hurt.
The second oldest son testified that he witnessed the June 2006 incident in which Andres pushed his brother down the stairs. In March 2006, his father had also attacked him by grabbing his testicles and pushing him against a wall. His father also hit him on the head with a bottle. He testified that his father drinks on a daily basis and that he has been drunk between 10 and 20 times over the past year. He knows when his father is drunk because he gets mean when in that condition. His father has offered him beer in the past, but he does not drink alcohol with his father because “it’s nasty.” He has seen Andres hit his younger siblings with a broom. He did not know whether the broom has ever left a mark, but the children usually started crying after they were hit. He also heard his younger brother complain “almost all the time” about pain in his teeth.
Andres’s now 11-year-old daughter testified that she is afraid of her father because he gets mean when he has been drinking. He yells and punches the walls. When her father is angry he squeezes her jaw until it hurts. He also hits her on the head with his fist with his middle knuckle sticking out further than the others, which she called a charley horse, pulls her hair and yells at her. She denied ever being hit with a broom. She has seen her dad give beer to her oldest brother.
Andres denied ever hitting his children, but acknowledged that he gives them charley horses and squeezes their faces when he is playing with them. He also denied having a drinking problem and testified that he had never offered alcohol to either of his older sons. Based on the pediatrician’s referral, he took his youngest son to the dentist, but the dentist told him he did not need to fill the cavities in the teeth because they were going to fall out anyway.
The children’s pediatrician testified that she is trained to identify physical abuse of children. She checked the children at their annual physicals and did not see any signs of abuse. She has never suspected that Andres was under the influence of drugs or alcohol. She explained, “I did not have a suspicion of any maltreatment from their father for these children, and I have a good sense of that. I have a lot of experience with that, I don’t think the father was the problem in this family.” She also testified that she was aware that the youngest son had 10 to 12 cavities and she referred him to a dentist.
Rylle Jones, a social worker with Families First, began working with the family in January 2006, after Andres’s now deceased wife stole all of his money. She testified that she had not seen any signs that the children were being physically abused. She worked on parenting issues with Andres, who “has always been very eager and very open to any of [her] suggestions.”
Police Officer Joseph Deorian testified that he was familiar with the family and that he responded to their home after receiving a complaint that Andres had hit one of the older sons with a bottle. Deorian spoke to the child who told him that “his father kind of thunked him on the head with a bottle. I believe it was a plastic bottle . . . . He had done something wrong, and his father pretty much told him ‘No, you can’t do that.’ And that’s all it was.” No charges were filed.
The court found that the three younger children came within the jurisdiction of the court. The court also found there was a substantial risk that the eldest daughter would suffer serious physical injury because “[t]he child’s father has used inappropriate physical discipline on the child in that on occasions, the father has hit the child on the head with a broom causing pain, squeezed [the] child’s jaw, pulled [her] hair and dragged [her] down stairs.” The court also found under section 300, subdivision (b) that there was a substantial risk that the child would suffer serious physical harm or illness in that Andres “has a history of substance abuse, which impairs his ability to provide adequate care and supervision for the child.” The court found there was a substantial risk that the youngest son would suffer serious physical injury because Andres had also hit him on the head with a broom and squeezed his jaw. The court also found that he came within the meaning of section 300, subdivision (b) based on Andres’s history of substance abuse and because Andres “was negligent in obtaining dental care in that the child was in pain and as a result of untreated dental care required an emergency root canal on August 4, 2006.” The court found there was a substantial risk that the youngest daughter would suffer serious physical injury because Andres had also hit her on the head with a broom and that she came within the meaning of section 300, subdivision (b) based on Andres’s history of substance abuse.
On March 29, 2007, the court concluded the contested disposition hearing. The court continued the children’s placement out of Andres’s home and ordered reunification services for Andres. Andres field a timely notice of appeal.
The dispositional hearing was commenced on January 4, 2007, but continued a number of times because the department had failed to comply with the notice requirement in the Indian Child Welfare Act, 25 United States Code Annotated section 1901 et seq.
Discussion
1. Substantial evidence supports the juvenile court’s jurisdictional findings.
The court exercised jurisdiction over the children in this case based on its findings that the children had suffered serious physical harm and were at risk of suffering future harm due to Andres’s history of alcohol abuse and inappropriate discipline. We must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1378.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (In re Angelia P. (1981) 28 Cal.3d 908, 924.)
The record in this case supports the court’s findings. The children testified quite credibly that their father hit them and otherwise hurt them when he was angry. They also testified that Andres was mean when he drank and that he was drunk during the most serious of the abusive incidents with the older boys. The children’s testimony provides substantial evidence in support of the court’s jurisdictional findings.
Other contrary evidence does not invalidate this conclusion. While the father denied having a problem with alcohol or inappropriately disciplining the children, the court expressly found that his testimony in this regard was not credible. The fact that the children’s doctor and the Family First social worker did not observe indications that the children were being abused suggests that the abuse may not have been extreme, but it does not compel the conclusion that there was no serious abuse such as the court found.
Finally, contrary to Andres’s suggestion, there is substantial evidence that the children remained at risk of suffering harm in the future. Andres suggests that there was no risk of future harm because “[a]t the time of events that led to this dependency, [he] was dealing with a number of stresses in his life that no longer existed at the time of the jurisdictional of dispositional hearing.” His wife, who had previously caused them financial hardship, was now deceased, and the two older sons with whom he had a strained relationship had been placed with their mother. Thus, he believed his parenting role would be more manageable in the future. These changes, however, do not address the alcohol abuse and inappropriate discipline that led to the filing of the petition in this instance. Accordingly, the court properly found that the children came within the court’s jurisdiction.
In light of this conclusion, we need not determine whether Andres was negligent in failing to get treatment for the youngest son’s tooth aches.
2. Substantial evidence supports the court’s finding that the children should be removed from Andres’s custody.
The trial court found by clear and convincing evidence that it was necessary to remove the children from the father’s custody because there was a substantial risk of harm to their physical and emotional well-being and they could not be protected without removal. The court explained, “Based on the evidence we heard, father was still denying his responsibility, but I found the children to be very credible about what was going on. So the abuse wasn’t—you just couldn’t call it roughhousing. It’s much more serious than that.” Relying on the same arguments made with regard to the jurisdictional finding, Andres contends the evidence is insufficient to support the children’s removal from his home. He states, “[I]f the court had considered the conditions that existed at the time [the children] were declared dependent children, it would have found that removal was not required by the law.” We disagree.
The combination of Andres’s alcohol use and inappropriate discipline was an on- going problem within the family that posed a serious risk of injury to the children. Andres’s failure to acknowledge his problem with alcohol and the seriousness of his actions further supports the court’s order.
3. The court did not abuse its discretion in denying Andres’s request for new appointed counsel.
On September 7, 2006, prior to the contested jurisdiction hearing, Andres asked that his court appointed attorney be replaced. In a closed session with only Andres, his attorney and the judge present, Andres explained that he had not had enough time to talk to his attorney. “I’ve been to court—this is my fifth time, and each time I get to talk to him about five seconds out in the hallway. I want someone that’s going to actually represent me, see all the evidence I got.” Andres’s attorney explained that he had met with Andres, but that Andres’s complaint with his representation had more to do “with the direction of the case.” He explained that after reviewing the case material and speaking to the lawyers who represent the children, he recommended to Andres that he try to “reach some kind of accommodation about this case rather than going to trial,” but Andres disagreed with this advice. The court denied Andres’s motion, finding that Andres was being adequately represented and that the disagreement over strategy was not unusual and was not a basis on which to replace his attorney.
On November 27, 2006, Andres made a second Marsden motion. The court held a second hearing at which Andres voiced frustration with the system and suggested that his attorney should have called additional witnesses at the jurisdictional hearing. The court denied the motion, concluding that the attorney was doing a very good job and that they were “not so embroiled in an irreconcilable conflict that ineffective representation [was] likely to result.”
Although somewhat unclear, it appears that much of the evidence Andres wanted his attorney to offer was related to a dispute between Andres and his oldest son with regard to the son’s girlfriend. It also appears, however, that there were some allegations of sexual misconduct by Andres with regard to the girlfriend. As his attorney explained, all evidence with regard to the alleged sexual misconduct was successfully excluded at the jurisdictional hearing: “I successfully kept out evidence of [Andres’s] relationship with [the girlfriend]. And if I brought that witness in, it would have opened the door to other evidence that would not have helped. Other parties were trying to get that in, and again I believe that I’ve been successful so far in keeping that evidence out of the record.”
On December 7, 2006, the court held a third Marsden hearing. Again, Andres complained that his attorney had not presented the evidence he wanted presented at the jurisdictional hearing. In response, his attorney stated “the problem is that [Andres] doesn’t have any faith in my abilities to do this. I think he’s wrong about some of the things that he stated, but that is perhaps beside the point. Unfortunately, at this point he doesn’t trust any legal advice I give him . . . . [¶] And, frankly, he doesn’t even know about the system to say the magic words in a Marsden hearing, which would be that the relationship between he and I has broken down to the point where he’s no longer getting effective representation. So to a certain extent I feel rather obligated to express that on his behalf, because it has broken down unfortunately. [¶] As the court can see, he’s very frustrated by this experience, and at this point he needs to be able to follow some legal advice that will help him out. And, unfortunately, I don’t think he’s willing to take that from me.” He concluded, “So I do think the relationship has broken down. I mean I don’t like to do this normally, but I feel that basically he—he needs a fair chance. For whatever reasons, and I think they’re wrong reasons, he’s not trusting my judgment about anything at this point.” The court denied the motion. The judge explained, “I think it’s likely [Andres] might not trust anybody’s judgment. And I don’t think you are so embroiled in an irreconcilable conflict that ineffective representation is likely to result. The fact that he doesn’t relate well with you at this moment, the fact that he disagrees with you over trial tactics and strategy decisions is not enough to grant a Marsden. [¶] . . . [¶] I think [Andres] is frustrated with the ruling I made and is doing everything he can to undo it.”
Andres contends that his third Marsden hearing was both procedurally and substantively defective. He argues that “[t]he court had a duty to conduct a further inquiry into the nature of the breakdown between [him] and his counsel once [his] counsel informed the court that he could no longer represent the father adequately” and that “[b]ased on counsel’s candid statement, and the lack of further inquiry by the court, the court abused its discretion in denying the Marsden motion.”
Andres’s attorney, however, did not state that he could no longer represent Andres adequately. As quoted in full above, he expressed some concerns that Andres would not follow his legal advice. He did not at any point indicate that he was unwilling or unable to continue representing Andres. His limited assessment of the state of the attorney-client relationship did not require the court to grant the Marsden motion. (People v. Smith (2003) 30 Cal.4th 581, 605 [trial court did not abuse discretion in denying Marsden motion although defense counsel agreed, based on the defendant’s statements, that the relationship had broken down].) Likewise, in light of the record established at the three Marsden hearings, there was no need for further inquiry into the nature of the disagreement between Andres and his attorney.
The decision to deny a Marsden motion is vested in the sound discretion of the trial court. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) Here, the record amply supports the trial court’s determination that Andres was receiving competent representation and that any conflict in the attorney-client relationship was of Andres making. “A trial court is not required to conclude that an irreconcilable conflict exists if the defendant has not made a sustained good faith effort to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness.” (People v. Crandell (1988) 46 Cal.3d 833, 860, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Smith (1993) 6 Cal.4th 684, 696 [“a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict”]; see also People v. Memro (1995) 11 Cal.4th 786, 857 [a lack of rapport or a lack of trust between defendant and counsel does not require that a motion to substitute counsel be granted]; People v. Clark (1992) 3 Cal.4th 41, 100 [“ ‘[T]he Sixth Amendment does not guarantee a “ ‘meaningful relationship’ between an accused and his counsel” ’ ”].) In these circumstances, the court reasonably denied the motion and encouraged Andres to work with his attorney.
Disposition
The juvenile court’s orders are affirmed.
We concur: McGuiness, P. J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.