Opinion
B297909
01-30-2020
In re A.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.T., Defendant and Appellant.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK68512, CK68512A, CK68512B, CK68512C, CK68512D) APPEAL from orders of the Superior Court of Los Angeles County, Steven E. Ipson, Juvenile Court Referee. Affirmed. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Father L.T. represented himself during much of the lengthy dependency proceedings concerning four of his minor children. At the disposition phase, the children were declared dependents and released to father's care. While the children remained under court supervision, father relocated the family to Tennessee without permission. After the children were safely returned to California, the Los Angeles County Department of Children and Family Services (DCFS) filed a supplemental petition under Welfare and Institutions Code section 387.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father requested counsel. The court attempted to appoint counsel from one of the five sequentially numbered law firms operating under the auspices of Los Angeles Dependency Lawyers, Inc., LADL 3. Father declined the representation; the reasons for this are not clear, as the record does not contain a reporter's transcript of that hearing. A few days later, father requested counsel from LADL 5, or, alternatively, "a conflict attorney." Father told the court he had a conflict with LADL 3 and offered to provide testimony of an LADL 4 attorney to support his assertion; he provided no other information regarding the alleged conflict. The court disallowed the LADL 4 attorney's testimony and again offered the services of LADL 3. It also told father it was "not going to relitigate the same thing." Father declined representation by LADL 3 and proceeded in propria persona. The court ultimately sustained one allegation of the amended section 387 petition, declared the children dependents, and placed the children with their mother.
Father, now represented by counsel, contends the court's jurisdictional and dispositional orders on the section 387 petition must be conditionally reversed because the court mishandled his requests for counsel. He argues that his claim of a conflict with LADL 3 obligated the court to hold a hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) at which he could explain and call a witness to prove the alleged conflict of interest.
We affirm. Even if we assume father was entitled to something analogous to a Marsden hearing, the record does not establish that he was denied a Marsden hearing. There is no reporter's transcript of the first hearing at which he requested counsel, and in the absence of an adequate record we must presume the request was appropriately addressed at that time. The court was not obligated to relitigate the matter four days later.
BACKGROUND
The instant proceedings arose in August 2016, after DCFS received a report that mother had pinched and choked one of the children. DCFS filed a juvenile dependency petition seeking jurisdiction over all four children under section 300, subdivisions (a), (b), and (j). The court appointed counsel for both parents at the detention hearing on August 4, 2016. Father's counsel, Rikka J. Fountain, was from LADL 4.
On January 30, 2017, the court relieved Fountain and LADL 4 after father filed a Faretta waiver and made a motion to represent himself. Privately retained attorney Nancy Lee Kelso appeared to represent father the same day.
Faretta v. California (1975) 422 U.S. 806.
Attorney Kelso appeared for father at the adjudication hearing on April 13, 2017. According to the minute order, "After the court admitted exhibits 7 and 8 into evidence and Danielle L[.] testifies, the father makes a Marsden motion against attorney Kelso. The motion is granted and attorney Kelso is relieved. [¶] LADL4 attorney Sherri Cunningham appears and states her firm is not able to accept appointment for father due to a conflict of interest that has arisen. The court appoints LADL4 over their objection pending next hearing." On April 19, 2017, the court continued the matter to May 2, 2017, "for . . . a sealed declaration from LADL4." Father filed another Faretta motion seeking to represent himself on April 27, 2017. He asserted he had an unspecified conflict with LADL 4.
On May 2, 2017, LADL 4 attorney Cunningham filed a sealed declaration describing the nature of the conflict she and LADL 4 had with father. A minute order dated May 2, 2017 states, "Court is in receipt of a sealed declaration from LADL4 attorney Sherri Cunningham address [sic] the conflict that LADL4 has in continued representation of [father.] Based on the declaration, the court relieves LADL4 from representing [father.]" An attorney from LADL 1 appeared "as a friend of the court on behalf of" father. The court continued the matter for LADL 1 to evaluate whether it was able to accept appointment to represent father. It is unclear from the record whether this evaluation happened or what the conclusion was; it does not appear that LADL 1 was ever formally appointed to represent father. The court granted father's request to represent himself on May 26, 2017.
Presentation of evidence at the adjudication hearing concluded on February 16, 2018. Mother, who had been convicted of child cruelty as a result of the pinching and choking incident that precipitated the petition, pled no contest to an amended section 300, subdivision (a)(1) allegation. The court dismissed most of the other allegations and continued the matter for father's argument as to remaining counts (a)(1) and (b)(4). The court sustained amended count (a)(1) on March 6, 2018. On March 15, 2018, the court "clarified" its March 6, 2018 jurisdictional order "to state that Father . . . has been stricken from the petition and is now not named in the petition."
The sustained section 300, subdivision (a) count read: "In July, 2016, the children['s] . . . mother, [A.T.], used inappropriate physical discipline on the child T[.] by grabbing him and forcing him onto a bench, resulting in deep scratches, redness, and bruising to T[.]. On 1/31/17, Mother was convicted of child cruelty due to this incident. Mother has a history of inappropriate discipline to the children, including recent threats to hit them with instruments such as a belt, spatula, and wooden spoon. In addition, mother has yelled at the children and used profanity. These incidents of inappropriate verbal and physical discipline and threats of discipline were excessive and caused the children fear and pain, which places them at risk of harm."
The court held the disposition hearing on April 16, 2018. It declared the children dependents and ordered them placed with father. Father timely appealed the disposition order. His court-appointed appellate counsel filed a brief pursuant to In re Phoenix H. (2009) 47 Cal.4th 835, indicating there were no issues on appeal. Father did not file a supplemental brief, and his appeal of the jurisdiction and disposition orders was dismissed as abandoned on February 21, 2019.
While father's appeal was pending, the proceedings continued below. On October 15, 2018, the court ordered DCFS to complete a section 364 report in advance of the six-month review hearing set for November 15, 2018. The court ordered DCFS to include in the report assessments of father's house in Tennessee and his request to move the children there.
In the status review report it filed November 13, 2018, DCFS reported that it "has not assessed fathers [sic] home in Tennessee, nor has the Department been able to assess fathers [sic] plans to move to Tennessee due to the father refusing communication and contact with the Department." At the November 15, 2018 hearing, the court set the matter for a contested hearing regarding the termination of jurisdiction on January 18, 2019.
The January 18, 2019 hearing did not take place. Instead, DCFS filed a last-minute information indicating it had learned from mother the previous day that father had moved the children to Tennessee. Father confirmed this to DCFS by phone. He reported that he had moved the children to Tennessee on January 1, 2019 despite his awareness that he was not permitted to remove the children from California without DCFS and court approval. DCFS expressed "grave concerns[,] as the father has a historical pattern of elopement" and "continuously refused the Department access to the children, blatantly disregarding Court orders and placing the minors at substantial risk as there have been as recent as two referrals dated 11/06/2018 for general neglect on minor, [J.] and 12/10/2018 for allegations [of] physical abuse on [S.]." The court issued protective custody warrants for the children and an arrest warrant for father.
On January 30, 2019, DCFS filed a supplemental dependency petition under section 387. It alleged that father's removal of the children from California in violation of a court order and interference with DCFS supervision "endangers the children's physical and emotional health, safety and wellbeing and places the children at risk of serious physical and emotional harm and damage." In the accompanying detention report, DCFS reported that children's services workers in Georgia located the children at father's relative's house on January 23, 2019. The children were taken into custody and returned to California, but father was not arrested. The court ordered the children detained and removed from father's care on January 30, 2019.
Father appeared in court on February 15, 2019. He remained in propria persona; the court denied his request "for second-chair counsel."
DCFS filed an amended section 387 petition on March 8, 2019. The petition added an allegation that father physically abused the children by striking them with a belt and his hands. At a hearing that same day, father requested counsel. There is no transcript of the March 8, 2019 hearing in the appellate record. The minute order states: "Father requests counsel but declines LADL3 representation when it is offered to him on the record."
The minute order documenting the next hearing, on March 12, 2019, states, "Father again requests counsel and the Court again offers LADL3 to pick up his case. Father declines LADL3." The reporter's transcript, which is included in the record, indicates that father requested "a LADL 5 or a conflict attorney" because he had a conflict with LADL 3, and offered to present the testimony of LADL 4 attorney Cunningham to support his assertion of a conflict with LADL 3. The court told father, in the presence of other parties to the case, "I'm not going to relitigate the same thing. LADL 3 is available to you." It also stated it was "not going to have that testimony" from attorney Cunningham, who was not present in the courtroom, because "she doesn't work for LADL 3." Father told the court that attorney Cunningham "was trying to talk to a LADL 3" in the hallway, and "this LADL 3 was not here at the time of the conflict with the law firm." The court repeated, "We're not going to relitigate the same issues." The court told the parties it would see everyone back on April 8, 2019.
There is no indication in the record that LADL 3 previously represented father.
Father appeared at the April 8, 2019 adjudication hearing in propria persona. During the hearing, father made several references to his requests for counsel. For instance, after the court overruled his section 355 objection as untimely, father stated, "That's the reason I requested the assistance of counsel, Your Honor. So I'm doing the best I can on it with what limited resources on it. And that's the reason I requested [an] attorney." The court told father, "I don't want to relitigate." Father responded that he was "not trying to relitigate," but rather explaining why his objection was not timely made. Father also mentioned his request for counsel when the court declined to admit his proffered exhibit and when the court rejected his attempt to introduce additional evidence at the argument stage of the hearing. At the conclusion of the hearing, the court sustained the allegation of the supplemental petition pertaining to father's abscondment but dismissed the allegation of physical abuse.
At the conclusion of the contested disposition hearing on April 24, 2019, the court declared the children dependents and removed them from father. It placed the children with mother, but stayed the placement until the conclusion of the school year so as not to further disrupt the children's education. The court ordered monitored visitation for father and ordered DCFS to "investigate/assess Father's new residence in the state of Tennessee by all appropriate means."
Father is the only party appearing in this appeal. DCFS filed a letter stating that it "did not take a position below regarding the father's request for reappointment of counsel" and accordingly "is not the proper respondent and will not be filing a Respondent's Brief in this matter." DCFS further asserted, "It would appear the Superior Court is the appropriate respondent." The Superior Court subsequently filed a letter asserting that it did "not have standing to appear in this matter as an advocate."
DISCUSSION
Father's sole contention on appeal is that the court erred in handling his requests for counsel. He argues the court "made no inquiries of appellant about the nature of the conflict; when appellant stated he had a witness who could establish the conflict, the court refused to hear the witness stating that the witness was from LADL-Five [sic]. The court even declined to ask for an offer of proof or to otherwise ask appellant what he expected the witness to say. The court simply refused to hear the witness solely on the basis that the witness was not an employee of LADL-Three, the firm with the alleged conflict." In father's view, "When appellant stated he had a conflict with LADL-Three, this turned what should have been a routine appointment of counsel into a Marsden hearing." Father argues the jurisdictional and dispositional orders should be conditionally reversed so the court may conduct a Marsden hearing.
In Marsden, supra, 2 Cal.3d at pp. 123-124, the Supreme Court held that a criminal defendant seeking substitution of appointed counsel must be given the opportunity to inform the court of the reasons for the request before the court makes its discretionary ruling. The eponymous Marsden hearing is "intended to afford protection to the defendant's right to counsel as guaranteed by the Sixth Amendment" (People v. Martinez (2009) 47 Cal.4th 399, 419) and typically entails an on-the-record colloquy between the defendant, his or her attorney, and the court, outside the presence of the prosecutor and the jury. (People v. Lopez (2008) 168 Cal.App.4th 801, 814-815; People v. Hill (1983) 148 Cal.App.3d 744, 753.) Improper denial of a Marsden hearing is reversible legal error unless the record shows beyond a reasonable doubt that the defendant was not prejudiced. (People v. Knight (2015) 239 Cal.App.4th 1, 9.)
"[J]uvenile dependency proceedings are not criminal proceedings." (In re M.C. (2011) 199 Cal.App.4th 784, 812.) Thus, "[t]he rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding." (In re James F. (2008) 42 Cal.4th 901, 915.) The Sixth Amendment right to counsel attaches in criminal but not dependency proceedings. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1080.) Nevertheless, parents involved in dependency proceedings have a statutory right to competent counsel (§§ 317, subd. (b), 317.5, subd. (a)), and "[j]uvenile courts, relying on the Marsden model, have permitted the parents, . . ., to air their complaints about appointed counsel and request new counsel be appointed." (In re V.V. (2010) 188 Cal.App.4th 392, 398; see also In re Z.N. (2009) 181 Cal.App.4th 282, 289.) We assume for purposes of this appeal that father was entitled to something analogous to a Marsden hearing here. As the appellant, he bears the burden of showing that he was not provided appropriate process. (In re K.R. (2018) 20 Cal.App.5th 701, 708; In re M.R. (2017) 8 Cal.App.5th 101, 108.)
This is not to say that precise adherence to the Marsden procedure is required in juvenile dependency proceedings. At least one court of appeal has opined "it is inappropriate to rigidly and unthinkingly apply Marsden and its progeny to dependency
Father has not carried his burden. He contends the trial court erred by failing to probe the alleged conflict and refusing to hear testimony from attorney Cunningham. However, he relies exclusively on the March 12, 2019 hearing, which was the second time father declined representation by LADL 3. The first time father declined the court's appointment of LADL 3 was on March 8, 2019. The appellate record contains no reporter's transcript of that hearing. The March 8, 2019 minute order that is included in the record states only that father "request[ed] counsel but decline[d] LADL 3 representation when it [was] offered to him on the record."
"All intendments and presumptions are indulged to support [an order] on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is well settled that a party challenging an order or judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) The record here is not adequate to show reversible error. The court repeatedly told father on March 12, 2019 that it was not going to "relitigate" his claim of conflict with LADL 3. We infer from the court's repeated use of the word "relitigate" that the issue of father's alleged conflict with LADL 3 had been litigated previously. The only preceding occasion on which father raised the issue was the March 8, 2019 hearing. Without a transcript of that hearing, we are unable to determine the scope or extent of that litigation. Instead, we presume the court afforded father a proceedings." (In re M.P. (2013) 217 Cal.App.4th 441, 458.) full opportunity to clarify the nature of his alleged conflict with LADL 3 before declining to appoint alternative counsel for him. "[A] defendant is not entitled to keep repeating and renewing complaints that the court has already heard," (People v. Vera (2004) 122 Cal.App.4th 970, 980) and there is nothing suggesting that the basis of father's alleged conflict with LADL 3 changed between March 8 and March 12.
Father also has not pointed to any authority supporting his assertion that a court must hear the testimony of any witness with relevant evidence at a Marsden hearing. We have found no authority suggesting that a Marsden hearing involves the calling of witnesses. As noted above, a Marsden hearing generally involves only the defendant, his or her attorney, and the court. Moreover, the attorney father wanted to call as a witness did not currently represent father, did not work for the firm with which he alleged a conflict, and previously furnished the court with a declaration describing father's conflict with LADL 4. Therefore, it is unclear what relevant testimony that attorney would have been able to provide.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. WILLHITE, J.