Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; Super. Ct. No. 05CEJ300064-2, petition for extraordinary writ review. Jane Cardoza, Judge.
H.K., in pro. per., for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
Petitioner (mother) seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to her daughter A. 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 June 2008, then 20-month-old A. and one-month-old K. were taken into protective custody by the social services department (department) after petitioner was arrested for using methamphetamine while caring for the children. As it turns out, A. and K. are not the first of petitioner’s children impacted by her drug use. In 2005, petitioner’s son, N., was also removed from her custody because of her drug use. The juvenile court provided petitioner services, which included substance abuse treatment, but she failed to reunify. N.’s father successfully reunified and was granted sole legal and physical custody of N.
After taking A. and K. into protective custody, the department filed a dependency petition on their behalf pursuant to section 300, alleging that under subdivision (b) petitioner’s drug use placed the children at risk of harm and that under subdivision (j) (subdivision (j)) petitioner’s drug use caused her to neglect N. and that A. and K. were at risk of similar neglect. The subdivision (j) count further alleged petitioner was provided services, including substance abuse treatment, to reunify with N. but was unsuccessful.
The juvenile court ordered A. and K. detained pursuant to the petition and ordered the department to provide petitioner services pending disposition of the case. Services included a substance abuse evaluation and random drug testing. The children were placed in foster care.
During the substance abuse evaluation, petitioner reported an extensive history of substance abuse: alcohol to intoxication for 16 years, amphetamines for 25 years, marijuana for 25 years, cocaine for 19 years and hallucinogens for 3 years. She also reported participating in substance abuse treatment on three occasions. The substance abuse specialist recommended she participate in inpatient substance abuse treatment.
Petitioner also enrolled in a drug testing system and tested negative for drugs the first time. She subsequently failed to test.
In August 2008, at a contested jurisdictional hearing, petitioner challenged the subdivision (j) count in the petition. She testified under direct examination that she did not participate in services for N. because she was not notified of the dependency proceedings. On cross-examination, however, she acknowledged the juvenile court provided her reunification services in N.’s case. After presentation of the evidence, petitioner’s attorney submitted the case after stating the “documents speak for themselves as to the (j) count.” Petitioner told the juvenile court she wanted to fire her attorney and the court conducted what would be the first of two Marsden motions, which it denied. The court also found A. and K. were described by section 300, subdivisions (b) and (j) and set the dispositional hearing for September 2008.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In September 2008, the juvenile convened the dispositional hearing and denied the second of petitioner’s Marsden motions. The court also continued the dispositional hearing several more times and conducted it as a contested hearing in February 2009. Meanwhile, petitioner entered a 90-day inpatient substance abuse treatment program in December 2008. In addition, the department filed its dispositional report, recommending the juvenile court deny petitioner reunification services pursuant to section 361.5, subdivision (b)(10) and (13) because of her failure to reunify with N. and resistance to drug treatment.
In February 2009, at the conclusion of the contested dispositional hearing, the juvenile court denied petitioner reunification services as to A. and K. as recommended and set a section 366.26 hearing to implement a permanent plan for A. The court ordered reunification services for K.’s father and set a six-month review hearing. This petition ensued.
Petitioner filed a notice of appeal from the juvenile court’s order denying her reunification services as to K. Her appeal is currently pending before this court (F057528).
DISCUSSION
Petitioner contends the juvenile court’s denial of her Marsden motions violated her right to due process. She also claims her trial counsel was ineffective. Appended to the writ petition are various documents, which are not included in the appellate record. Since this court cannot consider evidence that was not before the trial court, we will not consider them. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Further, we find no merit to petitioner’s claims of error.
Denial of Marsden Motions
In dependency proceedings, parents have a statutory right, and in some cases a due process right, to competent counsel. (§ 317.5, subd. (a); In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, fn. 6; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) To that end, they must have a mechanism for challenging the representation of their appointed counsel. However, an exhaustive Marsden hearing is not required. Rather, the juvenile court need only “make some inquiry into the nature of the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.) Substitute counsel should be appointed when, and only when, in the exercise of the court's discretion, the court finds that the defendant has shown either that counsel is not providing adequate representation or that there is such an irreconcilable conflict between the parent and counsel that ineffective representation is likely to result. (See People v. Smith (1993) 6 Cal.4th 684, 696.)
During the first Marsden hearing, petitioner told the juvenile court her attorney was rude and condescending and refused to review documentation that disproved information contained in the detention and jurisdictional reports. Petitioner’s attorney told the court he reviewed the documentation petitioner provided and concluded the information was not relevant to her case. During the second Marsden hearing, petitioner told the court her attorney was not working on her behalf and again claimed there was false information in the detention and jurisdictional reports. Petitioner’s attorney said he gave petitioner his business card on at least two occasions and told her to call him if she had any questions, but he did not receive any calls from her.
In this case, petitioner was afforded the opportunity to present her request for substitute counsel and explain her reasoning. However, the juvenile court concluded perceived rudeness on the part of her attorney and his unwillingness to present irrelevant evidence did not constitute irreconcilable differences or ineffective representation. We concur and find no error in the court’s denial of petitioner’s Marsden motions.
Ineffective Assistance of Counsel
A petitioner asserting ineffectiveness of counsel must prove trial counsel’s performance was deficient, resulting in prejudicial error. (In re Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668.) We need not evaluate counsel’s performance if petitioner fails to prove prejudicial error; i.e., absent counsel’s errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
Here, petitioner seeks either A.’s return to her custody and termination of dependency proceedings or reunification services. Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that but for counsel’s performance, the juvenile court would have either returned A. to her custody or granted her reunification services.
At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody unless the department proves, by clear and convincing evidence, that the child’s removal is necessary. (§ 361, subd. (c); In re Marilyn H. (1993) 5 Cal.4th 295, 308.) If the juvenile court orders the child removed, it must provide the parent reunification services unless it finds the parent is described by any one of 15 exceptions listed in section 361.5, subdivision (b) (subdivision (b)). In this case, the juvenile court found petitioner described in subdivision (b)(10) and (13). Subdivision (b)(10) describes the parent whose reunification services were terminated for a sibling and who failed to subsequently make a reasonable effort to resolve the problem necessitating the removal of the sibling. Subdivision (b)(13) describes the parent who has an extensive, abusive, and chronic history of drug or alcohol use and who resisted treatment for this problem during a three-year period immediately prior to the filing of the dependency petition. Where, as here, the juvenile court finds subdivision (b)(10) or (13) applies, it is prohibited from ordering reunification services unless it finds, by clear and convincing evidence, that reunification is in the child’s best interest. (§ 361.5, subd. (c).)
Petitioner claims her attorney was ineffective because he refused to present medical evidence proving she and the children tested negative for drugs, a certificate showing she completed a court-ordered “adversion” program, and evidence that the criminal charges, presumably from her June 2008 arrest, were dismissed. What she fails to show is how any of that evidence was relevant to the issues before the court or how it would have made a difference in her case given the state of the evidence. First, petitioner’s continuing drug use rendered A. unsafe in her custody. Therefore, the juvenile court properly declined to return A. to petitioner’s care. Second, it was undisputed petitioner’s reunification services for N. were terminated in 2005 because of her continuing drug use. Equally undisputed is petitioner’s extensive history of drug use, which necessitated A.’s removal within three years after her reunification services as to N. were terminated. Consequently, the juvenile court properly denied petitioner reunification services under either subdivision (b)(10) or (13). Further, the juvenile court did not abuse its discretion in finding services would not benefit A. given petitioner’s history of drug abuse and failure to reunify.
In light of the evidence, as discussed above, we conclude petitioner was not prejudiced by her attorney’s presentation of her case. Consequently, we find no merit to her claim of ineffective assistance of counsel.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.