Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Super. Ct. Nos. 505364, 505365 & 505366 Ann Q. Ameral, Judge.
Stephen L. Foley, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Levy, Acting P.J., Kane, J., and Franson, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court’s orders issued at a contested 12-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter and two sons. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
In September 2009, the Stanislaus County Community Services Agency (agency) took petitioner’s then ten-year-old daughter and eight- and seven-year-old sons into protective custody after all three children alleged petitioner’s live-in boyfriend, Jordan, physically abused them. Petitioner refused to acknowledge the abuse occurred and to participate in a voluntary plan. The children were placed in foster care.
The children’s two younger half-siblings were also removed from petitioner’s custody. However, they are not subjects of these dependency proceedings.
This was not the first time the children were detained by the agency. In May 2002, the children were removed from petitioner’s custody because of her substance abuse and neglect. Petitioner was provided reunification services, which included substance abuse treatment. In December 2002, the juvenile court terminated petitioner’s family reunification services, but subsequently reinstated them and ordered petitioner to undergo a psychological evaluation. She was evaluated by Cheryl Carmichael, Ph.D., who concluded she was functioning at the low average range of intellectual performance, but capable of higher functioning. Dr. Carmichael found no evidence of psychopathology, but found some evidence that petitioner was prone to anxiety, which inhibited her performance. Dr. Carmichael reported that petitioner had an “amazingly healthy outlook and mental status, ” given her history. In April 2004, the court returned the children to petitioner’s custody, but continued its dependency jurisdiction over them. In March 2005, the court dismissed its jurisdiction and awarded petitioner sole custody of the children.
In September 2009, following the children’s removal, the agency filed dependency petitions on their behalf, alleging, in part, petitioner has a history of substance abuse and mental health issues and failed to protect the children from physical abuse. That same month, the juvenile court detained the children pursuant to the petitions and set a jurisdictional/dispositional hearing for October 2009. Following the hearing, the caseworker gave petitioner referrals for parenting education, domestic violence counseling, a clinical assessment, and a substance abuse assessment. According to the caseworker, petitioner was initially reluctant to accept the referrals, stating she would participate in services of her choice at times of her choice. In addition, she refused to drug test for the agency.
In October 2009, the juvenile court conducted a Marsden hearing and appointed petitioner new counsel, Ms. Hallinan. The court continued the jurisdictional/dispositional hearing until November 2009.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In November 2009, the juvenile court adjudged the children dependents of the court, removed them from petitioner’s custody, and ordered her to participate in reunification services. Her services plan included mental health counseling, parenting education, domestic violence counseling, and random drug testing. It also required her to complete a substance abuse assessment and to be assessed for post traumatic stress disorder and psychotropic medication. The court set the six-month review hearing for April 15, 2010.
Meanwhile, on April 1, 2010, the juvenile court conducted a second Marsden hearing. What began as essentially a request for private counsel resulted in the court relieving trial counsel and allowing petitioner to proceed in pro se. The following exchange occurred:
“THE COURT: … [¶] … [I]t is your turn to tell me why you think that you need to have a different attorney.
“THE MOTHER: Since this whole process has began I have already went through two attorneys, because I know you guys heard me on the stand stating that I am a good mom and I didn’t know a lot of this was going on. I have asked for an appeal, and I don’t know if you ever sent for it.
“THE COURT: You asked for what?
“THE MOTHER: An appeal. And I have never heard back about the appeal. I have asked for my case to be moved to a different county because I feel like I’m being treated unfairly here. It hasn’t been moved. And my babies are hurting really bad.
“And I think it would be best if I did pro per so that somebody could hear me instead of having to file a lot of document, waiting for documents, and no phone calls back on appeals and different courts. And I have asked for it since the beginning for my case to be transferred and
“THE COURT: Okay, this just has to do with [Ms. Hallinan] right now.
“THE MOTHER: And I have asked for an appeal, and I haven’t heard nothing back on it.
“THE COURT: Okay. So which is your request.… Is it your request that you be given a different attorney or is your request that you want to represent yourself?
“THE MOTHER: Right now at this time I’m seeking for an attorney that I could pay for. Because I believe that if I pay for the attorney, they would better represent me.
“THE COURT: At any time you can have your own attorney that you have paid for come into court. That’s not a problem. That always can happen.
“THE MOTHER: Okay.
“THE COURT: But the question that we have now is, did you want Ms. Hallinan to continue to represent you until you get your paid attorney to come in?
“THE MOTHER: If she doesn’t mind.
“MS. HALLINAN: Well, Judge, my problem is that I really believe -- and I like [mother] very much. I mean, we have an interesting relationship because she knows I like her. We communicate well, but I think there has definitely been -- and I have never done one of these hearings before because in all the years I have practiced I have never -- no one has ever asked to remove me from a case before. But I will tell the Court that I think it’s in [mother’s] best interest, I do not believe that she should represent herself. I think she should have counsel. There are complicated issues here.
“And, [mother] -- despite the fact that we communicate with some frequency, [mother] really has been unwilling or unable to follow my advice or understand the reason for the way that I’m proceeding, and I think that really is a breakdown that does not seem to be overcomable.
“We have had a number of meetings. We have had meetings with other attorneys on the case, and I just don’t think that it’s -- we are just not proceeding in a way that’s going to be helpful to her in the big picture. So I think that she has expressed, and I have a duty to let the Court know, that she really feels that I’m not hearing her. And I have to say I have the same feeling. That she is just not able to process the advice that I’m giving her and has, in fact, sort of taken things and decided to do things her own way. And, you know, in my opinion it’s been counterproductive to her case. But she is an intelligent woman, and she has chosen to go her own way on a number of things. So I think we do have a significant breakdown in communication.
“I’m very concerned for her, but I think she’s smart enough to know what she wants, and she does not want to have me continue.
“THE COURT: And, Ms. Hallinan, do you believe that this breakdown in attorney-client communication and relationship is such that it cannot be repaired?
“MS. HALLINAN: I do, your Honor. And the reason I say that is, as I have said today to the Court, we communicate relatively frequently, so it’s not a matter of not communicating. It’s a matter of just not having a meeting of the minds that is productive to her case.
“And whatever way that I am trying to proceed for her, [mother] really has a different opinion of how the case should be handled, and so she is not following my advice and going on her own. And perhaps another attorney will be able to work with her better in that direction.
“Do you think that’s accurate, [mother]?
“THE MOTHER: I think that, like my case, since day one, like since my kids were removed -- which I’m showing her now -- even in the beginning of the process of everything, everything I brought into the court was for me stating that there was no evidence of them to remove my kids from me. Because Jordan was no longer in the home. I even moved to a different county. I have talked to both attorneys about this. That I just feel like I have been treated unfairly here, like my past is something that is holding against me. And I remember the day that I got legal custody of my kids before, that you stated that I was a strong woman that -- because I buried my sister that day.
“So the reason why I want to represent myself is I want to be heard. I’m tired of being ignoring my kids. I want my kids on the stand to tell you what kind of a mother I am. I want people on the stand to tell you what kind of mother I am. If I knew this abuse was going on, I would have never put my kids in that predicament.
“THE COURT: Okay. I’m going to stop you right there. I’m kind of getting mixed messages from you.
“You tell me that you want a different attorney, but then you tell me you want to be your own attorney.
“THE MOTHER: Yeah, I think
“THE COURT: So what is it that you want?
“THE MOTHER: I’m scared because I want to represent myself, but I don’t know how -- … [¶] … [¶] to do the filing and stuff like filing certain petitions and
“THE COURT: If you choose to represent yourself, I cannot treat you any differently than I would treat other attorneys, which means that you would have to be able to conduct yourself at a trial, asking questions, understanding the Rules of Evidence, as you said earlier, being able to file documents and papers on your own behalf.
“And so, knowing all of that, did you want to represent yourself or did you feel that you want to have an attorney?
“MS. HALLINAN: And I think I have a duty to let [mother] know, as I have told you before when you have expressed to me -- this is the first time you said you wanted another attorney, so I brought it to the Court’s attention. But you have in the past said you wanted to represent yourself.
“THE MOTHER: Yes.
“MS. HALLINAN: And I told you I don’t think that’s a good idea because the issues are complicated and the risk is too great.
“THE MOTHER: It just feels -- I feel threatened, you know, by the courts and everything. I have evidence -- I mean, I have
“THE COURT: I’m not going to talk about the evidence right now. I’m just trying to figure out what it is you want me to do.
“Do you feel that you could competently represent yourself, or do you want to have a different attorney?
“THE MOTHER: I feel like I could competently represent myself.
“THE COURT: All right. So at this time the Court is going to thank and relieve Ms. Hallinan from further representation.
“The court is going to make a finding that there’s been a breakdown in the attorney-client relationship to the point that -- in other words, [mother] nor Ms. Hallinan believe that relationship can be repaired.
“So at this time, [mother], you represent yourself. If you want to hire your own attorney, you can certainly do that. Or if in the future, if you feel that things are just too much and you really cannot represent yourself, then you let me know and we’ll go ahead and talk about having a different attorney represent you.”
The court confirmed the six-month review hearing date for April 15, 2010.
In its report for the six-month review hearing, the agency recommended the court continue services for petitioner until the 12-month review hearing, but find that her progress had been limited. The agency stated petitioner had made no progress with respect to her substance abuse and made minimal progress in parenting and domestic violence instruction.
On April 15, 2010, the juvenile court set the six-month review hearing for April 22, 2010. Petitioner appeared pro se and waived her right to counsel.
On April 22, 2010, the juvenile court convened the six-month review hearing. Petitioner appeared pro se and told the court she had an attorney, but the attorney was not able to appear that day. Petitioner asked for a continuance, which the court denied. The court proceeded to conduct a two-day contested six-month review hearing. Petitioner submitted five exhibits, which were entered into evidence, and testified that she completed the clinical assessment, attended all but two parenting classes, participated in three individual counseling sessions, and was participating in domestic violence counseling. However, she stopped attending domestic violence counseling because she completed those services during the previous dependency proceedings and because she was not a victim. She interjected that she did not trust the “system” and did not feel she was being fairly treated in the courts. She also stated she had not attended any group sessions on substance abuse because she completed services in 2004 and was clean and sober. On the second day of the hearing, petitioner called her daughter, J.G., then 11, who testified that petitioner’s parenting had improved and she would be safe with petitioner because petitioner was a good mother. Petitioner also called Jordan’s mother as a witness. During petitioner’s examination of Jordan’s mother, the court sustained its own relevance objection and asked petitioner to move away from questioning designed to elicit a rationale for petitioner’s resistance to her case plan.
Following argument, the juvenile court found it would be detrimental to return the children to petitioner’s custody and that the agency provided petitioner reasonable services. The court continued services to the 12-month review hearing, which it set for October 2010. The court also commented on petitioner’s compliance with her court-ordered services. The court stated:
The court terminated petitioner’s reunification services as to the two half-siblings and set a section 366.26 hearing. Petitioner did not challenge the court’s setting order in their cases by writ petition.
“Mother argues that she has done as much as she could do. She has completed her psychological evaluation, and she has a doctor note. And actually what she provided was not a doctor note, but, rather, documentation just indicating what anxiety and panic attacks are and the home care for that, as well as hyperventilation.
“Mother presents today as being very unstable, either because of her continued use of controlled substances or her mental health issues, and it is really hard to tell which it is.
“Although, she has completed many of the parenting groups, her parenting packet progress has not been stellar, and she’s not even progressed to the point of having parent/child labs. It took her a long time to get her clinical assessment completed, which she finally did, but she’s not engaged in the domestic violence counseling [to which she has been referred].
“Mother has chosen … to trust in herself. Mother has chosen to not do her case plan, but, rather, to buck the system. And if only she had expended as much energy in completing her case plan objectives as she has channeled into protesting the system, she would certainly be a lot further along.
“So her domestic violence, she has absolutely not participated in, and she’s not made any progress nor has she participated regularly.
“She was supposed to have a medication evaluation, but she has just drug her heels on that, which has delayed her ability to get -- if she has anxiety and panic attacks, this has delayed her ability to start treatment for that. That, again, has been her choice.
“What really concerns the [c]ourt is that the mother is really refusing and is digging her heels in on having a substance abuse assessment. And [the agency’s report] is very detailed as to the efforts the [a]gency has made to convince the mother that she needs to have that assessment. She needs to be into treatment, but, yet, she has refused every step of the way, and it is on that basis that the [c]ourt finds by clear and convincing evidence that she has failed to regularly participate and make substantive progress.”
Despite the juvenile court’s advisements, petitioner made no further effort to participate in her services plan. In addition, she showed up for visits with the children appearing disheveled. Her eyes were blood shot with dark circles underneath and she appeared emotionally fragile and exhausted.
In June 2010, the agency filed a section 388 petition asking the juvenile court to terminate petitioner’s reunification services for failure to comply. The agency stated in the petition that petitioner indicated she was not going to engage in services, but was going to pursue legal recourse due to the injustices and inconsistencies she suffered.
On July 19, 2010, the juvenile court convened a hearing on the section 388 petition and, at petitioner’s request, appointed her counsel. That counsel was relieved on July 27, 2010, and Mr. Foley was appointed to represent petitioner. The court continued the hearing on the section 388 petition to allow Mr. Foley to meet and confer with petitioner.
On August 9, 2010, Mr. Foley requested another continuance to conduct further research, which the court granted. On August 17, 2010, Mr. Foley requested release of the transcripts from the hearings conducted on April 1 and 15 of 2010. The court granted the motion and continued the hearing until September 1, 2010.
On September 1, 2010, petitioner appeared with Mr. Foley. The court continued the case to September 15, 2010, for the section 388 hearing and drug testing. The court admonished petitioner that this was her final opportunity to fully comply with her case plan. The court further admonished her that if she were using drugs to enroll in treatment. The court ordered petitioner to submit to three random drugs tests between then and the six-month review hearing in October 2010. On September 15, 2010, the court confirmed the October 12-month review hearing and advised petitioner that no excuses would be accepted from her.
In its 12-month status report, the agency recommended the court terminate petitioner’s reunification services and set a section 366.26 hearing to select a permanent plan for the children. The agency reported that petitioner made no progress in her services plan since the six-month review hearing and tested positive for methamphetamine in September 2010. The agency advised the court that long-term foster care with a goal of guardianship would be the recommendation going into the section 366.26 hearing.
In October 2010, the juvenile court convened the 12-month review hearing. Petitioner did not personally appear, but was represented by Mr. Foley who told the court he had seen petitioner in the courthouse earlier, but he could not explain her absence. The court asked Mr. Foley if he had any proof that she was enrolled in a treatment program. He stated he did not and objected to the agency’s proposed findings and recommendations on petitioner’s behalf. The court found petitioner was provided reasonable services, but that her progress was poor. The court further found there was not a substantial probability the children could be returned to her custody by the 18-month review hearing. The court terminated petitioner’s reunification services and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner challenges the juvenile court’s rulings made at the April 1, 2010 hearing, which she refers to as the “Marsden/Faretta” hearing. She contends the juvenile court conducted an inadequate Marsden hearing because it did not allow her to voice her grievances with Ms. Hallinan’s performance. Further, she argues, it erroneously granted the Marsden motion because there was no evidence of a breakdown in her communication with Ms. Hallinan. That error was compounded, she further argues, when the juvenile court allowed her to represent herself knowing that she had mental health issues that precluded her from doing so. The net result, she contends, is that she was denied effective assistance of counsel.
Faretta v. California (1975) 422 U.S. 806 (Faretta).
Preliminarily, we note that the hearing from which the challenged rulings were made occurred on April 1, 2010. Claims of ineffective assistance of counsel are generally waived in dependency proceedings if not timely raised. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1159-1160.) Since petitioner did not challenge the juvenile court’s rulings by direct appeal, it would appear that she has waived appellate review on the issue of ineffective assistance. However, we need not decide whether the waiver rule applies here because petitioner fails to show how the court would have ruled differently, but for her self-representation. Thus, her ineffective assistance claim fails on the merits.
A. Marsden
In Marsden, the court held that when a criminal defendant requests newly appointed counsel on a claim that counsel is not adequately representing the defendant, the trial court must conduct a hearing to determine the validity of the grounds constituting that claim of ineffective assistance of counsel and then exercise its discretion as to whether new counsel will be appointed. (Marsden, supra, 2 Cal.3d at pp. 123-124.) In so doing, the “trial court must permit the defendant to explain the basis of his 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].” (People v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Though Marsden arose in the criminal setting, its principles are applicable to dependency proceedings. (In re Ann S. (1982) 137 Cal.App.3d 148, 150.)
In this case, there was no reason to conduct a Marsden hearing. Petitioner was not asking the court to appoint new counsel. She merely expressed her desire to retain private counsel. That issue was quickly resolved when the court informed her she could essentially substitute in retained counsel at any time. The court then ascertained that she would like Ms. Hallinan to continue to represent her until she retained private counsel. It seems the hearing could have been terminated at that point. However, it was not. Instead, Ms. Hallinan, in effect, argued her own ineffectiveness to the court on the grounds that she and petitioner did not share a “meeting of the minds” with respect to how Ms. Hallinan was handling her case. Otherwise, according to Ms. Hallinan, they communicated well. The court ultimately relieved Ms. Hallinan, finding there had been an irreparable breakdown in her relationship with petitioner. However, before the court did so, it granted petitioner’s request to represent herself.
B. Faretta
Faretta established a federal constitutional right of a criminal defendant to represent himself or herself. (Faretta, supra, 422 U.S. 806.) Though the principles enunciated in Faretta apply in juvenile dependency cases, the right to self-representation is statutory rather than constitutional. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1081 et seq. (Angel W.).)
Section 317, subdivision (b), mandates appointment of counsel for indigent parents “unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel.…” Thus, “[a] parent may waive counsel at any point[, ]” and “the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure. (Angel W., supra, 93 Cal.App.4th at pp. 1083-1085.) To comply with section 317, subdivision (b), the court must take a waiver of the right to counsel, but “[t]here is no requirement … that the court engage in a full Faretta-type admonition and inquiry.…” (Angel W., at p. 1084.) If the juvenile court has made the parent aware of the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case, a waiver of counsel is valid. (In re Brian R. (1991) 2 Cal.App.4th 904, 921.)
Further, because the right to self-representation is statutory, rather than constitutional, we review the court’s decision under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under that standard, we ascertain whether it appears reasonably probable a result more favorable to petitioner would have been obtained had her request for self-representation been denied.
Here, the juvenile court did not err in permitting petitioner to represent herself. The court explained to her that, if she chose to represent herself, it would treat her as if she were an attorney and expect her to conduct herself accordingly at a trial, ask questions, understand the Rules of Evidence, and file the appropriate documents. The court asked her if she thought she could competently represent herself and gave her the option of having a different attorney. Petitioner stated she felt she could competently represent herself and the record reflects that she did. As her own attorney at the six-month review hearing, she submitted exhibits into evidence and called and cross-examined several witnesses. Contrary to her assertion that she was not mentally competent to represent herself, the record reflects no history of diagnosable mental illness or intellectual deficit.
Finally, the juvenile court would not have ruled differently if petitioner had been represented by counsel at the six-month review hearing. The court would have continued her services to the 12-month review hearing based on the ages of the children when initially detained and a statutory mandate to do so. (§ 361.5, subd. (a)(1)(A).) Further, there is no reason to believe the court would have issued new or different orders.
Petitioner contends an attorney would have asked the court to order a psychological evaluation, order different or additional services, and/or appoint a guardian ad litem. An attorney would have also, she further contends, contacted Dr. Carmichael for her opinion. Even if an attorney had made such requests, there is no reason to believe they would have been granted. Petitioner was not incompetent or mentally unsound and she expressed no complaint about the adequacy of her services plan. Rather, what the evidence reflects is that petitioner was refusing to comply with her court-ordered plan. Under those circumstances, an attorney could not have made a better case than she made for herself.
In sum, we conclude that the hearing conducted on April 1, 2010, was not technically a Marsden hearing. Therefore, it does not matter whether the court properly conducted it under Marsden. Further, the fact that the court made a finding supporting substitution of counsel under Marsden (i.e. “irreconcilable conflict”) and relieved Ms. Hallinan did not result in denying petitioner effective assistance of counsel because petitioner waived her right to counsel and the court properly granted her request to represent herself. Therefore, petitioner, having elected to represent herself, cannot now complain that the “quality of [her] own defense amounted to a denial of ‘effective assistance of counsel.’” (Faretta, supra, 422 U.S. at p. 834, fn. 46.) We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.