Opinion
C092478
06-01-2021
In re C.C. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.S. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Super. Ct. Nos. JVSQ18534, JVSQ19037
RENNER, J.
L.C. (father) and S.S. (mother), parents of the minors, appeal from the juvenile court's orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Father contends the juvenile court erred in not providing him a hearing on his request for new counsel and claims he received ineffective assistance of counsel because his attorney did not demand the Yolo County Health and Human Services Agency (Agency) demonstrate diligence in investigating relative placement of the minors. Parents also contend the Agency and juvenile court failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; § 224.2.) We conditionally reverse and remand the matter for the limited purpose of further ICWA compliance.
Undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
On October 12, 2018, the Agency filed a section 300 petition on behalf of minor C.C., alleging that the one-year-old minor was at risk of serious physical harm due to the father's violent conduct in that on September 23, 2018, he had a physical altercation with the minor's mother in which mother was severely injured, and following the altercation the father fled to Wisconsin with the minor. C.C. was located in Wisconsin and taken into protective custody. Father was arrested.
Father appeared telephonically at the November 29, 2018 pre-jurisdiction hearing. Until that date, he had refused to provide contact information to the Agency. At that hearing, the court ordered father to keep the Agency and attorney informed of his contact information. Father provided an address, but it was later discovered that the address he provided was to an entire apartment complex and did not provide an apartment number. Father stated that he was not currently in California and that he had “one matter that [he] need[ed] to resolve and not resolve to attend to be in a position to take custody of [his] son.” He said he could be at court on the following Tuesday, December 4, 2019. The court agreed to continue the hearing to December 4, 2019. Father, however, did not appear, telephonically or otherwise, at the December 4, 2019 hearing, or at any other hearing, until June 23, 2020. Nonetheless, the case proceeded.
The juvenile court sustained the petition and declared C.C. a dependent child of the juvenile court, removed custody from both parents, and ordered out-of-home placement and reunification services for both parents. Father was provided supervised visits for three hours a week, but the visitation order would be suspended if father did not visit the minor by January 1, 2019. Father did not visit the minor.
On January 22, 2019, mother gave birth to minor P.C. Mother was residing with P.C. at a safe house, where it was reported that mother was participating in her reunification services. The Agency filed a section 300 petition on behalf of P.C. alleging that she was at risk due to the parents' domestic violence. The court declared P.C. a dependent of the court, left the minor placed with mother with family maintenance services for mother, but removed the minor from father's custody with reunification services for father.
On April 23, 2019, the Agency filed a subsequent petition pursuant to section 342 on behalf of P.C., alleging that on April 19, 2019, the mother was hospitalized for mental health symptoms and subsequently placed on a section 5150 hold, leaving P.C. without a caretaker. P.C. was ordered detained and placed in the same foster home as C.C. The court subsequently sustained the petition and on May 29, 2019, removed P.C. from mother's custody, and ordered out-of-home placement and reunification services for both parents.
A six-month review hearing for C.C. was held in June 2019. Mother had been participating in services, but father had not participated in services or visited the minor and father's whereabouts were unknown. The court continued reunification services for mother and terminated reunification services and visitation for father.
A 12-month review hearing for C.C. and six-month review hearing for P.C. was held in January 2020. There were concerns surrounding mother's visits and she had not progressed in reunification services as hoped. Father reportedly had been arrested in Minnesota. The court terminated family reunification services for mother as to both minors and for father as to P.C. and set a hearing pursuant to section 366.26 for both minors for April 28, 2020.
The Agency filed a section 366.26 report on April 24, 2020, recommending termination of parental rights. The hearing was continued to June 23, 2020, and again to July 16, 2020. An adoption assessment concluded both minors were likely to be adopted, were strongly bonded to their current caretakers, and the caretakers were committed to adopting the minors. Both parents objected to termination of their parental rights but neither presented evidence at the July 16, 2020 hearing. The juvenile court found by clear and convincing evidence that it was likely the minors would be adopted and terminated parental rights.
Additional facts are contained in our discussion of the issues.
II. DISCUSSION
A. Marsden
Father contends the juvenile court committed reversible error in failing to conduct an adequate inquiry into the adequacy of his legal representation. We reject his claim for several reasons.
In a criminal case, when a defendant requests substitute appointed counsel, the trial court must permit the defendant to explain the reason for the request. (People v. Marsden (1970) 2 Cal.3d 118, 123-124 (Marsden).) The court need not grant the request for substitution of counsel absent a showing that denial would substantially impair the defendant's right to the assistance of counsel. (Id. at p. 123; People v. Turner (1992) 7 Cal.App.4th 913, 917.) However, denial of the opportunity to explain constitutes an abuse of discretion. (Marsden, supra, at pp. 123-124.)
In a dependency proceeding, the parents have a statutory and due process right to competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151, fn. 3, 1153, fn. 6.) When counsel is retained and the parent believes counsel is inadequate, the parent can simply fire the retained attorney. However, parents for whom counsel is appointed cannot. Juvenile courts, relying on the Marsden model, have permitted the parents to air their complaints about appointed counsel and request new counsel be appointed.
Although Marsden is inapplicable to juvenile dependency cases, because the juvenile courts use a Marsden model to permit parents to air their grievances about their counsel, we refer to the hearing as a “Marsden hearing” herein for convenience.
An exhaustive Marsden hearing is not required. It is only necessary that the juvenile court “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.) Moreover, the court's duty to permit a person represented by appointed counsel to state the reasons for dissatisfaction with counsel arises only when the person in some manner moves to discharge his current counsel. There must be, at the very least, some clear indication by the individual that he wants a substitute attorney. (People v. Freeman (1994) 8 Cal.4th 450, 480-481; People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8; People v. Richardson (2009) 171 Cal.App.4th 479, 484-485.) “When the basis of... dissatisfaction with counsel is set forth in a letter of sufficient detail... a full-blown hearing is not required.” (People v. Wharton (1991) 53 Cal.3d 522, 580; see People v. Terrill (1979) 98 Cal.App.3d 291, 298-299.)
Father asserts that his June 3, 2019 letter to the court sufficiently requested a “Marsden” hearing and he boldly assigns error to the juvenile court for not holding a Marsden hearing on June 4, 2019, or providing an explanation why it did not hold such a hearing. Of course, the reason no such hearing was held on June 4, 2019, is likely because father did not appear at that hearing. In fact, he failed to appear at each and every hearing thereafter until the June 23, 2020 hearing, over a year later. Thus, any failure to have a hearing on June 4, 2019, to allow father to further air his grievances about his counsel, beyond the complaints he set forth in his letter, was due to father's refusal to appear at scheduled hearings, not the juvenile court's failure to provide the opportunity.
Although father sent the court several more letters, in April and May 2020, continuing to express his dissatisfaction with the Agency, social worker, his counsel, and the entire process, he did not request new counsel in those letters. When he finally appeared at the June 23, 2020 hearing, he did so with appointed counsel. Although he was permitted to make a statement and address the court, he did not then make reference to the contents of his letters, express dissatisfaction with his counsel's representation, or request substitute counsel. Father did state he had not communicated with counsel, to which counsel responded that she had initially communicated with him but that, thereafter, father had chosen not to come to court and had moved around, and that father's “multiple issues in different states” had been the obstacle in being able to communicate with him. Father responded that he had not spoken to counsel “probably in about eight months.” The court set the matter for a contested hearing three weeks out so father could confer with counsel and be personally present in court. Father appeared in custody via Zoom at the July 16, 2020 hearing. At his counsel's behest, he was again permitted to make a statement and address the court and, again, did not express dissatisfaction with his counsel's representation or request substitute counsel.
Father had also sent another letter to the court on July 13, 2020, which expressed his unhappiness at the impending termination of his parental rights but did not request new counsel. The juvenile court, however, did not receive the letter until after the July 16, 2020 hearing terminating parental rights.
Under the circumstances of this case, we conclude father abandoned his request for substitute counsel, and thus, the juvenile court did not err in failing to hold a Marsden hearing. (People v. Obie (1974) 41 Cal.App.3d 744, 750 [“ ‘where the court, through inadvertence or neglect, neither rules nor reserves its ruling... the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place' ”], disapproved on other grounds by People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4; People v. Alaniz (1986) 182 Cal.App.3d 903, 907 [failure to secure ruling on a motion to suppress evidence]; People v. Hill (1992) 3 Cal.App.4th 16, 44 [failure to obtain ruling on a motion to strike], disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
In any event, even assuming that, based on father's June 3, 2019 letter to the court, the court should have held a Marsden hearing at the June 23, 2020 hearing (the first hearing thereafter at which father appeared), father fails to explain how he can raise the asserted failure in this appeal, which was filed on September 3, 2020-more than 60 days later -and which did not identify the June 23, 2020 order. (Cal. Rules of Court, rules 8.405(a)(1), 8.406(a)(1) [written notice of appeal must be filed in the superior court within 60 days].)
B. Assistance of Counsel
Father also contends counsel provided ineffective assistance because she “never demanded that the county investigate potential relative placements.” Assertion of this claim borders frivolous as it is both untimely and he makes no attempt to show, nor can he show, prejudice on this record.
A parent claiming ineffective assistance of counsel has the burden of showing both that counsel did not act in a reasonably competent manner and that the error was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 686; In re O.S. (2002) 102 Cal.App.4th 1402, 1407.) To show prejudice, the parent must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, at p. 694; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Father fails to meet his burden.
At the detention hearing on October 18, 2018, in compliance with section 361.3, subd. (a)(8)(B), the juvenile court ordered the parents to identify all relatives and non- related extended family members for purposes of placement. It does not appear in the record that father complied with this order or otherwise provided any relative information to the Agency (or his attorney) for well over a year following the court's order. Instead, the record reflects that father had minimal contact with both the Agency and his attorney and did not keep either apprised of his whereabouts, as ordered by the court. He did not provide the relative information in a timely manner to allow for the Agency to investigate or to require his attorney follow up and assure a diligent investigation was taking place.
By father's own account, prior to the June 23, 2020 hearing, he had not spoken with his attorney since approximately November 2019. Father's counsel reported at the November 20, 2019 hearing, however, that she did not know in which state father was currently incarcerated, had only received some calls and an occasional text from father, and had not been able to contact him directly.
Father's grossly belated compliance with the court's order to provide identifying information of relatives and non-relative extended family members for placement consideration consisted of a letter written by father and received by the juvenile court on April 1, 2020, which includes a list of several relatives and a non-related extended family member, and attached, as an exhibit, a letter father purportedly sent to the Agency on or around February 14, 2020, providing this same relative information. There is no proof of service included in the record for either letter, and no indication father's attorney ever received a copy of that letter sent to the court. There is merely a statement by father's attorney, made at the June 23, 2020 hearing after father was located, that she was aware that he had written the court “a letter.” There is no clarification which, of the five letters father had sent to the court, was being referenced.
At the July 16, 2020 section 366.26 hearing, county counsel represented that father's girlfriend had contacted the Agency in April to get information about the case and potential placement. County counsel forwarded that information to father's counsel on April 24, 2020, along with the letter sent by father. In doing so, county counsel explained that the Agency had no cause to change the minors' placement from the de facto parents with whom they had been placed throughout these proceedings, but if a placement change was necessary, the Agency would investigate placement with the listed individuals.
Father does not now contend his counsel failed to discharge her duties after receiving a copy of this belated disclosure of paternal relatives. Instead, he argues that, despite his failure to disclose potential relatives, counsel should have earlier demanded the Agency report on its efforts to find a suitable relative placement and on its efforts to contact those of father's relatives of which it was aware, and further demanded that the court make a finding about it. (§ 358, subd. (b)(2); Cal. Rules of Court, rule 5.695(e)(1).) His challenge in this regard is untimely. The failure to timely and appropriately raise a claim about the quality of counsel received at a proceeding antedating the termination hearing forecloses a parent from raising such an objection on appeal from an order terminating parental rights. (In re Meranda P., supra, 56 Cal.App.4th at p. 1151.)
In any event, even assuming investigation into potential placement with parental relatives was possible and warranted before father identified the possible individuals in compliance with the court's order, and assuming father's counsel should be charged with “demand[ing]” on the record that the Agency report on its investigation and that the court make findings on the Agency's diligence, father cannot establish prejudice. His argument that “[h]ad timely inquiries been made, it is possible that a suitable paternal relative could have been approved for placement” is pure speculation. (Italics added.) Indeed, father does not even identify, nor does the record establish: (1) which relatives the Agency would have discovered on its own; (2) that some or all of those individuals were interested in placement at that time; (3) that some or all of those individuals would have been approved for placement; and (4) that at the time of approval for placement with any of these individuals, such placement would have been in the minors' best interests.
This court located only one reference in the Agency's reports regarding paternal relatives. In the detention report, the social worker reported that Milwaukee law enforcement had notified the Agency via telephone that after father had fled California with minor C.C., he was arrested in the home of the paternal grandmother and the minor had been taken into protective custody.
Since father cannot show it is reasonably probable a more favorable result would have occurred if his attorney had “demanded” the Agency investigate unknown relatives for possible placement at an earlier date, he cannot establish he received ineffective assistance of counsel.
C. ICWA Compliance
Mother contends the Agency failed to sufficiently investigate her claim of possible Indian heritage in accordance with the ICWA. Father joins in this argument and also contends that the juvenile court never made an ICWA finding as to minor C.C. We accept the Agency's concession that further inquiry of mother's claim of Indian ancestry is warranted and remand for the limited purpose of ICWA compliance. Our disposition on remand addresses father's concern regarding the ICWA finding.
The juvenile court and the Agency have an affirmative and continuing duty, beginning at initial contact, to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a); § 224.2, subd. (a).) Section 224.2, subdivision (e) provides that if the court or social worker has reason to believe that an Indian child is involved in a proceeding, the court or social worker shall, as soon as practicable, make further inquiry regarding the possible Indian status of the child. Further inquiry includes, but is not limited to: (1) interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3; (2) contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in; and (3) contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child's membership, citizenship status, or eligibility. Contact with a tribe must, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe's designated agent for receipt of notices under the ICWA, and sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case. (§ 224.2, subd. (e).)
Section 224.3, subdivision (a)(5) includes the name, birth date, and birthplace of the Indian child, if known; the name of the Indian tribe; and the names and other identifying information of the Indian child's biological parents, grandparents, and great-grandparents, if known.
Here, on October 15, 2018, in relation to minor C.C.'s case, mother reported to the social worker that she had no Indian ancestry. On October 18, 2018, she signed an ICWA-020 Parental Notification of Indian Status form in C.C.'s case stating that she had no Indian ancestry. On February 4, 2019, when being interviewed in relation to minor P.C.'s case, mother told the social worker that she did not have any known Indian ancestry, but on February 6, 2019, she completed an ICWA-020 form in P.C.'s case stating that she may have Indian ancestry but did not specify a tribe. The record reflects that, thereafter, the Agency had a conversation with mother wherein she said she may have Indian ancestry but did not know what tribe. The Agency reported that it would follow up with further inquiry but does not reflect that further inquiry occurred, either of mother or her relatives.
We cannot say the error is harmless. In the absence of evidence of the Agency's efforts to fulfill its duty of inquiry, we must remand for limited ICWA proceedings.
We grant mother's request to take additional evidence to include her declaration that she had additional information relating to the minor's possible Indian heritage for the sole purpose of establishing that the assigned error is not harmless and that remand for further proceedings is not a futile act. (See In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430-1431; In re H.B. (2008) 161 Cal.App.4th 115, 121-122 [failure of parent to make affirmative representation of Indian ancestry, either in juvenile court or on appeal, may result in rejection of ICWA inquiry and notice argument based on harmless error].)
Father also complains that, although he told the social worker he did not have Indian ancestry and did not complete the ICWA-020 form, as ordered by the juvenile court, the court erred by not asking him again at the November 26, 2018 hearing that he attended whether he had Indian ancestry. Father admits, however, that he has no information that he has any Indian ancestry. Accordingly, any error in failing to inquire of him further was harmless. (See In re H.B., supra, 161 Cal.App.4th at pp. 121-122.) Should father provide information that gives reason to believe the minor is an Indian child during the course of the proceedings on remand, further inquiry is within the scope of the limited remand for further ICWA compliance.
III. DISPOSITION
The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of complying with the inquiry and notice provisions of the ICWA. If, after conducting further inquiry and providing any necessary notice as required under the ICWA, no tribe indicates the minors are Indian children within the meaning of the ICWA, then the juvenile court shall make an ICWA finding and reinstate the orders terminating parental rights. However, if a tribe determines the minors are Indian children as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court shall order a new section 366.26 hearing and proceed in accordance with the ICWA, including considering any petition filed to invalidate prior orders. (25 U.S.C. § 1914; § 224, subd. (e).)
We concur: HULL, Acting P. J. MAURO, J.