Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J218384. Marsha Slough, Judge.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
William D. Caldwell, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
All statutory references are to the Welfare and Institutions Code.
Mother appeals from the trial court’s order terminating her parental rights and selecting a permanent plan of adoption for her son, Samuel. Mother’s only argument on appeal is the court erred by not holding a Marsden hearing concerning the removal of her counsel. We conclude the trial court did not abuse its discretion by not initiating a Marsden hearing. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
2. Factual and Procedural Background
Samuel was born in September 2006.
In November 2007, the San Bernardino County Department of Children’s Services (DCS) filed an original dependency petition, affecting Samuel. (§ 300, subd. (b).) The petition alleged mother had failed to protect him because of mental illness, substance abuse, and domestic violence.
In the detention report, the social worker recounted the events of November 27, when the police responded to a report of domestic dispute. Mother was drunk and had physically attacked her boyfriend. The police arrested mother. Samuel was filthy and wearing a soiled diaper. Mother admitted having a criminal history involving substance abuse and petty theft. The court ordered Samuel detained in foster care on November 30.
The boyfriend was listed on the birth certificate but ultimately was shown not to be the father.
In December 2007, DCS submitted a jurisdiction/disposition report, including the allegation that the alleged father—a different man than the one mother had attacked—had substance abuse problems and could not currently be located. Father also had an extensive criminal history of drug-related offenses.
The court ordered mediation. In January 2008, mother agreed to the allegations of domestic violence and substance abuse and agreed to participate in services.
In February 2008, mother had received a negative drug test and enrolled in a treatment program. She had engaged in regular visitation with Samuel. During one visit, mother behaved in an agitated manner and appeared to have been drinking.
Father finally appeared at a hearing on February 26, 2008.
At the hearing on March 12, based on mother’s waiver of rights, the court made a true finding on the petition and removed Samuel from mother’s custody. The court ordered mother to participate in a psychological evaluation and submit to a drug test.
On April 29, the court suspended visitation because mother had twice failed to submit to drug testing. Two more times, mother was discovered concealing a vial of urine vaginally. Mother smelled of alcohol and was irrational and delusional, asserting that Samuel was being abused in foster care. Samuel was apprehensive about their visits and Mother was arrested during one visitation.
The status report dated September 12, 2008, described Samuel as fearful of mother and happy in his current foster home. Mother was continuing to use drugs and attended classes while intoxicated. The psychological assessment found that mother was emotionally and mentally unstable, demonstrating amphetamine-related bipolar disorder and narcissistic, histrionic, and paranoid personality features. DCS recommended that reunification services be terminated.
At a Marsden hearing in September 2008, the court appointed substitute counsel for mother.
The addendum report, dated October 9, 2008, recounted that mother had been arrested in October and September on charges of public intoxication. (Pen. Code, § 647, subd. (f).) Mother had not completed her service plan and had received positive drug tests, as well as trying to falsify the tests. DCS recommended parental rights be terminated.
Mother appeared at the contested six-month review hearing on October 23, 2008. Mother’s counsel represented that mother hoped she could file a section 388 petition later. The court terminated reunification services and set a section 366.26 hearing. Mother did not appear in court again after October 23, 2008.
On February 2, 2009, mother mailed a letter to the “Director of San Bernardino Clinics Welfare Agency,” complaining about the three attorneys who had represented her. The letter was not addressed to the juvenile court but the envelope has a date stamp showing it was received by the court on March 26, 2009.
In April 2009, the adoption assessment report described Samuel’s continuing successful development in foster care. It recommended that parental rights be terminated and the foster mother be considered as the prospective adoptive parent.
Mother did not attend the section 366.26 hearing on April 7, where she was represented by her third lawyer, Clara Ledford. Ledford told the court about the mother’s letter and the court continued the hearing date to April 20. When mother did not appear on that date, the court proceeded to terminate parental rights and select adoption as Samuel’s permanent plan.
3. Discussion
Mother argues the juvenile court should have conducted a second Marsden hearing in response to mother’s letter to DCS. In particular, the juvenile court should have inquired about the nature of mother’s complaint and the failure to do so was constitutional error. (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13; In re Ann S. (1982) 137 Cal.App.3d 148, 150.) We disagree that the juvenile court abused its discretion. (In re Ann S., supra, at p. 150.)
In her letter, mother accuses her two former lawyers and her present lawyer, Ledford, of not “doing their job with defending my rights” and not accomplishing any “profitable beneficial progress towards this case.” She particularly complains that half her phone calls were not returned and “I am outraged at Clara Ledford’s response to my concerns towards the temporary Foster Caring from the ‘several’ [He is sixteen months at the time] parenters. [Sic.]” Mother directed her “confidential” letter to DCS but not to the court.
In the cases relied upon by mother, and especially the three dependency cases, the litigants directly communicated with the court about their dissatisfaction with appointed counsel. (In re Joann E. (2002) 104 Cal.App.4th 347, 350-351; In re James S., supra, 227 Cal.App.3d at p. 933; In re Ann S., supra, 137 Cal.App.3d at p. 150.) No such communication occurred in the present case except during mother’s first Marsden motion in September 2008. Although mother apparently composed the letter in January and mailed it in February 2009, she did not attend the noticed court hearings on February 20, April 7, or April 20.
Mother has not cited any case in which a court was required to conduct a Miranda inquiry based on the foregoing circumstances: “The trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.] The court’s duty to conduct the inquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ [Citations.]” (People v. Lara (2001) 86 Cal.App.4th 139, 150-151.)
Furthermore, mother’s inchoate expressions of dissatisfaction seem to focus mainly on her unhappiness with Samuel’s foster placement and not particularly on her lawyer’s failure to act. The record unquestionably demonstrates that any lack of progress in the case stemmed from mother’s ongoing lack of compliance with the case plan for reunification. Because mother did not expressly articulate legally-sufficient reasons for discharge of her lawyer, the court did not err when it did not initiate a Miranda hearing. (People v. Montiel (1993) 5 Cal.4th 877, 905-906; People v. Lee (2002) 95 Cal.App.4th 772, 780.)
To warrant reversal, Marsden error must be prejudicial; it is not reversible per se. (People v. Chavez (1980) 26 Cal.3d 334, 347-349.) Even if this case involved error, we are convinced any error would have been harmless beyond a reasonable doubt.
Mother’s visitation was suspended in April 2008. In October 2008, reunification services were terminated. From November 2007 until April 2009, mother made little or no progress toward rehabilitation. She stopped attending noticed court hearings after October 2008. The nature of her distress, as exemplified in her letter of January 2009, afforded yet another example of her parental unfitness. Almost certainly, she could never have established changed circumstances before the section 366.26 hearing.
4. Disposition
In the absence of error or prejudice, we affirm the judgment.
We concur: Richli, Acting P. J., Miller, J.