Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County No. 27599, Harry L. Jacobs, Commissioner.
Gregory M. Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and James B. Tarhalla, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Cornell, J., and Dawson, J.
B.A. appeals from an order terminating his parental rights (Welf. & Inst. Code, § 366.26) to his two young children. He contends he is entitled to reversal because the court denied a Marsden motion which he brought at the start of the section 366.26 permanency planning hearing. On review, we conclude the court did not err and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
People v. Marsden (1972) 2 Cal.3d 118.
PROCEDURAL AND FACTUAL HISTORY
In 2007, the Merced County Superior Court exercised its dependency jurisdiction over appellant’s two-year-old son and infant daughter (children), adjudged them juvenile dependents, and removed them from parental custody. The children came to the court’s attention after appellant assaulted their teenage half-sibling. Drug use by appellant and the children’s mother as well as the unsanitary condition of the family home also placed the children at a serious risk of physical harm.
Despite more than 12 months of reunification services, appellant and the children’s mother made minimal progress in their service plans. Appellant in particular failed to complete any component of his service plan and visited the children sporadically at best. Meanwhile, the children’s maternal grandmother had been approved for placement in her Idaho home and was awaiting their arrival.
Appellant refused to attend a March 2008 status review hearing, even after the court ordered him to enter the courtroom. During that hearing, the social worker advised the court that she had informed appellant it was likely the children would go to live with their grandmother. The children’s mother supported their move and change of placement. The court terminated reunification services for the parents and set a hearing to select and implement a permanent plan for the children (setting order).
Less than a month later, the agency placed the children with their maternal grandmother.
Appellant unsuccessfully sought our writ review of the trial court’s setting order. (B[.]A. v. Superior Court, F055052.) In the meantime, he also made a Marsden motion to remove his court-appointed counsel. According to the court’s June 2008 minute order, appellant’s counsel also asked to be relieved. The court granted the attorney’s request. Back in open court, the court appointed Eric Chaudron, who was not present in court that day, to represent appellant. Appellant’s former attorney promised to deliver appellant’s file to Chaudron that same day.
All of the court’s dependency panel attorneys had represented some party in this matter, causing the court to go outside the panel to make the appointment.
When the case resumed in August 2008, appellant made another Marsden motion, this time to remove Chaudron as his counsel. In an in camera proceeding, the court asked appellant to explain in specific terms what Chaudron had done that appellant believed he should not have done and what the attorney had not done that appellant believed he should have done. Appellant cited three complaints. Relevant to his claim on appeal, appellant stated:
“I for one, I don’t think he had enough time -- he didn’t even know this case was going on, the 226. I don’t think he had enough time to even look into my case.
The court asked whether appellant had included everything he wanted the court to hear. Appellant had nothing more to offer. The court asked appellant multiple follow-up questions regarding one of his other complaints.
The court then turned its attention to Chaudron and asked for any comment. The attorney responded:
“I will -- generally, I think I can represent Mr. [A.] adequately and competently. I will say that for some reason this was not calendared for me this morning. I had it down as the 21st. That was absolutely my mistake. If that compromises Mr. [A.]’s ability to put his case on, I am concerned about that.
“Having said that, I understand the case. I’ve read over the case. It’s not like I’m completely foreign to it. A little more prep time would probably make me better at this. But at this point, I can represent him competently. It’s certainly his choice to make this motion, but I, again, I think that I can represent him well if the Court so chooses.”
Once appellant and his attorney submitted the issue, the court denied appellant’s request. The court found nothing to indicate that the attorney’s conduct was either one of malfeasance or misfeasance. It appeared to the court that Chaudron was competently prepared to represent appellant in a vigorous fashion and there was no irremediable breakdown in the attorney-client relationship. After denying the motion, the judge said he would “step off” to let the attorney and appellant talk about the hearing.
When the hearing resumed, the deputy county counsel submitted on the basis of the agency’s report and recommendation to terminate parental rights. The agency’s report detailed the likelihood that the children would be adopted by their maternal grandmother. The court then asked Chaudron if appellant was contesting the recommendation to which the attorney replied yes. Chaudron then called appellant as a witness.
Appellant testified about his many frustrations with the dependency process and with the agency in particular over the children’s out-of-home placement. He wanted the children to have a relationship with his older children.
On cross-examination, appellant testified he disagreed with the agency’s report that his visits with the children were sporadic and during the visits he did attend, he was not involved with them. He admitted he did not attend some visits because he had warrants and believed he would be arrested if he visited the children. Other times, he did not go because he claimed he did not want to “screw up the visit” for the children’s mother.
Chaudron also called the mother as a witness. She believed appellant cared for the children but did not regularly visit or show them much attention.
Following closing arguments, the court found the children were likely to be adopted and terminated parental rights.
DISCUSSION
In appellant’s view, the court should have granted his Marsden motion because the attorney’s remarks revealed he was not prepared for the permanency planning hearing that day and therefore provided inadequate representation. Appellant also criticizes the court for failing to inquire about the attorney’s readiness to proceed.
Here, the court found the attorney was competently prepared to represent appellant and the record supports the court’s finding. At most, the attorney acknowledged he had the trial date calendared for the following week and “[a] little more prep time would probably make [him] better at this.” These acknowledgements did not compel a finding that the attorney was unprepared.
In his appellate briefing, appellant also points to the fact Chaudron did not formally challenged the children’s change of placement as somehow proof of the attorney’s lack of preparation. Time to raise that charge was in his Marsden motion, not now. In any event it appears from the record that appellant had actual notice of the plan to move the children out of state and took no action. Indeed, he refused to attend the hearing at which the issue was discussed. To criticize an attorney whom the court did not appoint until months after the change in placement occurred appears disingenuous at best.
To the extent appellant claims the court erred for failing to inquire further of the attorney regarding his preparation, we disagree. First, the cases to which he cites People v. Hill (1983) 148 Cal.App.3d 744, 755 and People v. Minor (1980) 104 Cal.App.3d 194, 197-198 address the court’s duty to adequately inquire of a defendant regarding his or her complaints. On this record, the court satisfied its duty in that regard. In addition, as this court explained in People v. Eastman (2007) 146 Cal.App.4th 688, 695 (Eastman), “Marsden and its progeny require that when a defendant complains about the adequacy of appointed counsel, the trial court permit the defendant to articulate his causes of dissatisfaction and, if any of them suggest ineffective assistance, to conduct an inquiry sufficient to ascertain whether counsel is in fact rendering effective assistance. [Citations.] If the defendant states facts sufficient to raise a question about counsel’s effectiveness, the court must question counsel as necessary to ascertain their veracity.” (Emphasis added.)
The court in this case properly could have concluded - based on appellant’s conclusory complaint that counsel did not have enough time and the attorney’s response - that appellant had not stated facts sufficient to warrant a further inquiry. (Eastman, supra, at p. 695.) We also observe the obvious. If in fact the attorney was unprepared, the solution was a continuance request (§ 352), not a Marsden motion. However, no such request was made, even after appellant and his attorney conferred following the court’s denial of the Marsden motion.
DISPOSITION
The order terminating parental rights is affirmed.