Opinion
E073830
04-22-2020
In re B.S., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. P.D., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J273832) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, P.D. (Mother) appeals from a juvenile court order terminating parental rights to her daughter, A.W. (born in 2017). A.W. was removed from Mother's custody and declared a dependent of the court based on allegations A.W.'s parents failed to protect her, they failed to provide support, and Mother abused A.W.'s half siblings (Welf. & Inst.Code, § 300, subds. (b)(1), (g) and (j)). Following a contested section 366.26 hearing, the juvenile court ordered parental rights to A.W. terminated.
Father is not a party to this appeal.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother contends the juvenile court abused its discretion by failing to conduct a Marsden inquiry and by refusing to continue the section 366.26 hearing to allow Mother to retain private counsel. We find no error and affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
II.
FACTS AND PROCEDURAL BACKGROUND
Mother and her family came to the attention of plaintiff and respondent, San Bernardino County Children and Family Services (CFS), on November 18, 2017, when CFS received a general neglect referral shortly after A.W. was born. The referral reported that Mother had recently given birth to A.W. in Las Vegas, rather than locally, in order to avoid the attention of CFS. When A.W. was born, Mother, with maternal grandmother's assistance, used a false name for A.W. in an attempt to hide A.W. from CFS by making it appear A.W. was maternal grandmother's child.
Mother had previously failed to reunify with her four older children, who were removed from her based on sustained allegations of general neglect, and placed in an adoptive care home. The referral report further stated that Mother suffered from substance abuse, engaged in prostitution, had committed crimes of theft and possession of stolen property, and had engaged in domestic violence. A.W.'s Father reportedly was arrested in July 2017, and was currently incarcerated for vehicle theft, receiving stolen property, and burglary. He also had an outstanding warrant for identity theft charges.
A. Detention
On November 20, 2017, CFS detained A.W. in temporary protective custody. Two days later, CFS filed a juvenile dependency petition under section 300, subdivisions (b)(1) (failure to protect), (g) (failure to provide support), and (j) (abuse of siblings). The petition alleged Mother's whereabouts were unknown and Father was incarcerated. At the detention hearing on November 27, 2017, the court ordered A.W. detained in protective custody. Both Mother and Father appeared at the detention hearing.
On December 15, 2017, CFS filed an amended juvenile dependency petition, alleging that Mother had been located and she had a history of unresolved mental health issues. The amended petition further alleged Father had an extensive criminal history, with an unknown prison release date, and Mother and Father's parental rights to A.W.'s four older siblings had been terminated.
B. Jurisdiction/Disposition
CFS recommended in its December 18, 2017, jurisdiction/disposition report bypassing reunification services for Mother and Father. CFS reported that the court had found true in the half siblings' juvenile dependency cases allegations that Mother abused controlled substances, including marijuana and methamphetamine, and engaged in domestic violence. CFS further reported Mother told the social worker she had been diagnosed with bipolar disorder and post-traumatic stress disorder from being molested as a child. Mother had received therapy while in foster care and after her older children were removed from her. Mother had also recently resumed therapy once again.
Mother and the CFS social worker testified at the jurisdiction/disposition hearing on February 5, 2018. The court did not find Mother credible. The court believed Mother attempted to hide A.W. and mislead CFS and the court. The court concluded that, because of the dependency proceedings involving Mother's older children, she knew she was required to drug test and failed to do so. The court further found that Mother also knew that failing to drug test would be treated as a positive test result. The court sustained the petition allegations, denied reunification services, and set a section 366.26 hearing.
C. Mother's Section 388 Petitions
CFS requested in its section 366.26 hearing report, filed on May 29, 2018, a continuance of the June 5, 2018 section 366.26 hearing to allow A.W. time to transition to her prospective adoptive home. Mother reportedly was visiting A.W. but on an inconsistent basis.
On June 1, 2018, Mother, in pro. per, filed a section 388 petition stating she had completed her case plan. Mother requested A.W. be returned to her. On June 5, 2018, Mother, with the assistance of counsel, filed a second section 388 petition providing greater detail and attached supporting documents. The juvenile court summarily denied Mother's first section 388 petition and set a hearing for Mother's second section 388 petition. During a hearing on August 7, 2018, the court denied Mother's second section 388 petition, finding there was no change of circumstances and granting the petition was not in A.W.'s best interest.
Meanwhile, on June 25, 2018, Mother was arrested for theft, and released on August 13, 2018. When Mother met with the CFS social worker on August 23, 2018, she was on probation and participating in mental health court. Mother asked to visit A.W. On August 29, 2018, the court continued the section 366.26 hearing to allow for an Interstate Compact on the Placement of Children (ICPC) study of a potential placement of A.W. in an adoptive home in North Carolina.
In November 2018, Mother filed a third section 388 petition, requesting the court to change its order that A.W. could be transported to her prospective adoptive home in North Carolina. In support of her petition, Mother stated she was out of custody, was receiving mental healthcare, was compliant with her medication, and was participating in substance abuse treatment, during which she had tested negative for drugs.
CFS filed a response stating that Mother continued to suffer from mental health and substance abuse issues and had not benefitted from services. Her older children were in the process of being adopted by A.W.'s prospective adoptive parents in North Carolina. On December 12, 2018, the juvenile court denied Mother's third section 388 petition, finding there was no change of circumstances and that granting the petition was not in A.W.'s best interest. The court renewed its order authorizing CFS to move A.W. to her prospective adoptive parents in North Carolina upon approval of the ICPC.
D. Section 366.26 Hearing
On March 4, 2019, Mother was taken into custody and denied bail after violating her probation. On March 26, 2019, CFS received ICPC approval for placement of A.W. with her prospective adoptive parents in North Carolina. The court ordered A.W. placed with her prospective adoptive parents, who had recently adopted A.W.'s older half siblings and wished to also adopt A.W. The court continued the section 366.26 hearing to allow A.W. time to transition to her new placement in North Carolina. CFS reported in its July 2019, section 366.26 hearing report that Mother had not addressed the issues that led to adoption of her four older children. Mother had also missed several video call visits with A.W.
During the section 366.26 hearing on September 25, 2019, Mother requested a continuance of the hearing so that she could retain private counsel. The court denied Mother's request as untimely and proceeded with the section 366.26 hearing. Mother requested the court to apply the parental relationship exception to adoption (§ 366.26 (c)(1)(B)(i)). The court found the exception did not apply, found A.W. adoptable, and terminated Mother and Father's parental rights.
III.
MARSDEN ERROR
Mother contends the juvenile court abused its discretion by not conducting a Marsden hearing to determine why she wanted the court to substitute her court-appointed attorney with private counsel. Mother argues the juvenile court was required to inquire into the nature of Mother's complaints against her attorney.
A. Applicable Law
The court in Marsden, supra, 2 Cal.3d 118, explained that "[a] trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom. . . . Thus, a judge who denies a motion for substitution of attorneys solely on the basis of his courtroom observations, despite a defendant's offer to relate specific instances of misconduct, abuses the exercise of his discretion to determine the competency of the attorney." (Id. at pp. 123-124.)
Marsden, supra, 2 Cal.3d 118 applies not only in criminal proceedings, but also to court-appointed counsel representing parties in juvenile dependency proceedings. In In re James S. (1991) 227 Cal.App.3d 930 (James S.), the court concluded that parties in a juvenile dependency proceeding to terminate parental rights have a due process right to effective assistance of court-appointed counsel. (Id. at pp. 934-936; see also In re M.P. (2013) 217 Cal.App.4th 441, 454-455 (M.P.).) The James S. court further concluded the mother was entitled to a Marsden hearing because she had complained of ineffective assistance of counsel. (James S., supra, at pp. 934-935.) The mother in James S. argued on appeal that the juvenile court failed to conduct an adequate Marsden hearing. The James S. court noted that "a trial court has an affirmative duty to inquire when advised of a possible conflict of interest." (James S., supra, at p. 934.) The James S. court held the juvenile court conducted an adequate, thorough Marsden hearing by inquiring about each of the mother's attorney complaints. (James S, supra, at p. 934.)
In In re Ann S. (1982) 137 Cal.App.3d 148 (Ann S.), counsel for the minor, Ann, informed the court during a juvenile dependency hearing that Ann wanted the court to appoint a new attorney for her. The juvenile court refused to do so and proceeded with the hearing. On appeal, the Ann S. court reversed the hearing orders on the ground the lower court committed Marsden error by not inquiring into the reasons for Ann's dissatisfaction with her court-appointed attorney. (Ann S., supra, at p. 150.)
B. Analysis
Mother argues that her request to continue the section 366.26 hearing so that she could retain private counsel triggered her right to a Marsden hearing. We disagree.
At the beginning of the section 366.26 hearing, Mother's attorney stated, "Mother is asking for a continuance. She would like to retain her own private counsel." The court responded, "Your request is untimely. The request is denied." Without any further discussion by the parties or court, the court proceeded with the section 366.26 hearing. The court entered into evidence CFS's numerous hearing reports and attachments. Mother's and Father's attorneys argued there was "[n]o affirmative evidence" supporting termination of parental rights. Mother's attorney noted that she had discussed with Mother her right to testify at the hearing and present evidence that she had been visiting A.W., but Mother did not want to testify. CFS stated that A.W.'s placement was appropriate. She had been placed with her sisters and everything was going well.
The juvenile court found A.W. adoptable and terminated parental rights. Mother's attorney added, "Just to make it clear, Mother does believe her bond with the minor outweighs any permanent plan." The court responded, ending the hearing stating, "To be clear, since the burden is now with Mom, I read the evidence related to visits, and I don't think there is anything there that indicates that she is occupying a parental role. And I think the benefits of adoption outweigh the benefits of maintaining the parent-child relationship, and that the child would [not] suffer any significant detriment due to termination of parental rights."
Under these circumstances, the juvenile court was not required to conduct a Marsden hearing because neither Mother nor her attorney stated that Mother's attorney's performance had been inadequate. Mother merely wanted to retain private counsel. The reason for wanting to do so was not stated. She may have found an attorney who was willing to represent her, whom she felt would do a better job. Unlike in James S., supra, 227 Cal.App.3d 930, Mother did not complain that her attorney had committed ineffective assistance of counsel. Also, unlike in Ann S., supra, 137 Cal.App.3d 148, Mother did not state that she wanted the court to appoint a new attorney for her.
Mother attempts to distinguish M.P., supra, 217 Cal.App.4th 441, in which the court held the juvenile court's failure to conduct a Marsden hearing was not reversible error. (M.P., supra, at pp. 446, 460.) We agree M.P. is factually distinguishable, but it nevertheless supports the proposition that in the instant case there was no error in the juvenile court not holding a Marsden hearing. Unlike in the instant case, in M.P., the mother's attorney requested a Marsden hearing. (M.P., supra, at p. 447.) The mother also mentioned in the juvenile court several reasons why she was dissatisfied with her attorney. (Id. at p. 458.) The juvenile court concluded that it should first hold a competency hearing to make sure the mother was competent to question her attorney's competence. (Id. at p. 447.)
During the competency hearing on appointing a guardian ad litem (GAL), the mother's attorney stated that he had a conflict with the mother because the mother did not want a GAL and wanted another attorney appointed to represent her. (M.P., supra, 217 Cal.App.4th at p. 447.) The juvenile court determined that the mother needed a GAL and therefore there was no need for a Marsden hearing. (M.P., supra, at p. 447.) On appeal, the court in M.P. concluded that the juvenile court reasonably believed that any communication problems between the mother and her attorney would be resolved by appointment of a GAL. The M.P. court further concluded that the mother's counsel was providing effective assistance, and that a Marsden hearing was therefore no longer necessary. (M.P., supra, at p. 460.)
In holding there was no reversible error in not holding a Marsden hearing, the M.P. court explained that "mother has neither raised an ineffective assistance claim nor claimed she received deficient representation. Further, the mere failure to conduct a separate Marsden-type hearing does not demonstrate a constitutional deprivation of effective assistance of counsel under Strickland [v. Washington (1984) 466 U.S. 668]." (M.P., supra, 217 Cal.App.4th at p. 457.)
In the instant case, Mother not only did not request a Marsden hearing, she also did not claim she received deficient representation. The juvenile court therefore was not required to conduct a Marsden hearing under James S., Ann S., or M.P.
Mother argues that, even though she did not tell the court she was dissatisfied with her attorney, it was apparent because she was indigent, yet willing to use her limited resources to retain a private attorney. Mother's indigency does not provide a sufficient basis for assuming Mother wanted a Marsden hearing or that she was dissatisfied with her court-appointed attorney. Such an assumption is speculative, where there was no mention of anything other than that Mother wanted to continue the hearing in order to retain private counsel. A reasonable inference could made under these circumstances that she was merely making a futile request, in an attempt to delay the section 366.26 hearing. The juvenile court was not required here to determine why Mother wanted to retain private counsel.
Because Mother did not complain about her court-appointed attorney during the section 366.26 hearing and did not request a Marsden hearing, the juvenile court was not required to hold a Marsden hearing before proceeding with the section 366.26 hearing.
IV.
CONTINUANCE REQUEST
Mother contends the juvenile court abused its discretion by denying her oral request for a continuance of the section 366.26 hearing.
Under section 352, subdivision (a)(2), "Continuances shall be granted only upon a showing of good cause." Subdivision (a)(3) of section 352 provides: "In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance."
Here, Mother's oral motion for a continuance was made at the beginning of the section 366.26 hearing. It therefore was untimely, and could only have been granted if there was good cause for the last-minute oral motion. We conclude there was neither good cause for the untimely motion, nor for the continuance itself. (In re B.C. (2011) 192 Cal.App.4th 129, 144.) Mother failed to show any justification for not filing a timely written motion and for delaying requesting the continuance until the day of the section 366.26 hearing on September 25, 2019. Over a year before, on February 5, 2018, the juvenile court set the section 366.26 hearing for June 5, 2018, and continued it several times. At no time, before the section 366.26 hearing on September 25, 2019, did A.W. request a new attorney, complain about her attorney, or indicate the need to change her attorney and continue the hearing.
The record is devoid of any facts or evidence justifying delaying Mother's continuance request, because Mother did not file a written motion for a continuance, and she did not provide any explanation for the delay when she made her oral request for a continuance. Mother argues the juvenile court should have held a Marsden hearing, during which she could have stated why she wanted a different attorney and the reason for the delay. But Mother did not request a Marsden hearing, and was not entitled to one based solely on her request to continue the hearing so that she could retain private counsel.
We therefore conclude the juvenile court reasonably found there was no showing of good cause for continuing the hearing. When exercising its discretion to continue a section 366.26 hearing under section 352, subdivision (a)(1), the juvenile court is required to consider the minor's interests and "give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a)(1).) Here, Mother failed to justify delaying A.W.'s adoption. The court thus did not abuse its discretion in denying Mother's request for a continuance. (In re B.C., supra, 192 Cal.App.4th at p. 144.)
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.