Opinion
G056474
12-19-2018
In re JUAN C. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. ALMA G., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0327 & 16DP0328) OPINION Appeal from an order of the Superior Court of Orange County, Katherine Lewis, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Deborah Morse, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minors.
INTRODUCTION
Alma G. appeals from an order pursuant to Welfare and Institutions Code section 366.26, terminating her parental rights to her children Juan C. and Mariela Ruby C. This is Alma's second trip to our court. She previously filed a petition for writ of mandate after her reunification services were terminated. We dismissed the petition because the notice of intention to file a writ had been filed untimely.
All further statutory references are to the Welfare and Institutions Code.
Mariela Ruby goes by her middle name and will be referred to as "Ruby" throughout.
Alma G. v. Superior Court (May 29, 2018, G056014) [nonpub. opn.].
In this appeal, Alma does not contend that Juan and Ruby were not adoptable or that the parental benefit exception to termination applies. Instead, she argues that the order should be reversed because the juvenile court did not ask her why she wanted to substitute private counsel for her court-appointed attorney on the day of the section 366.26 hearing and because the court would not grant an 18-day continuance so that her new counsel could represent her.
We affirm the order. The juvenile court was under no obligation to inquire about the reasons for substituting private counsel, and we cannot find, under the circumstances of this case, that the court abused its discretion in denying Alma's request for a continuance on the very day of the hearing. In addition, Alma has not presented any argument or authority on the issue of how these rulings, even if erroneous, could have prejudiced her.
FACTS
To briefly summarize the facts leading up to the prior petition, Orange County Social Services Agency (SSA) detained Juan and Ruby after their 11-month-old sister drowned in the bathtub. The children were placed in foster care. In the period between detention and the hearing on Alma's reunification services, she had another child, Arely, who was Juan's and Ruby's half-sister.
In February 2018, the juvenile court terminated Alma's reunification services for lack of progress. In addition, the court discovered just before the reunification services hearing that Alma had been pressuring the children to lie about their visits with her and punishing them when they said anything negative about her to the social workers.
We dismissed Alma's petition for writ review of the order terminating her reunification services because the notice of intention to file a petition was filed untimely. We indicated, however, that substantial evidence supported the juvenile court's decision to terminate services.
At the same time it terminated reunification services in February 2018, the juvenile court suspended visitation, finding it detrimental to the children's well-being. The court scheduled a hearing in April to review visitation. The section 366.26 hearing was scheduled for June 14.
After the children and Alma were no longer visiting, their foster mother reported a significant improvement in their attitude and outlook. They were "more calm, less distracted, and less worried." They were also well behaved and doing well in school.
Juan told his foster mother he did not want to live with Alma because he did not believe she would take care of him. She had blamed him for his little sister's death in the bathtub. He was unsure about whether he wanted to visit with Alma. He stated he felt normal and happy when he was not visiting and worried that if he saw her she would start pressuring him again about what he had told SSA. Mostly he wanted his phone and his Playstation returned to him.
The foster mother reported Ruby was crying when she went to after-school day care. When the social worker asked her about this, Ruby stated she was afraid her foster mother would not pick her up. She also stated she wanted to stay with her foster mother and did not want to see Alma, visit with her, or live with her. Ruby's therapist reported she was doing well and was attached to her foster mother.
The foster parents expressed an interest in adopting Juan and Ruby. Both children stated they wanted to be adopted. The only reservation Ruby expressed was her desire to see Arely, her half-sister.
At the visitation review hearing in April, the court learned Alma had been following Juan on Instagram and had been calling him and sending him text messages even though she was not allowed to have any contact with him. Juan closed his account and opened another to cut off this contact. Alma found that account as well and continued to get in touch with him. Among other messages, Alma asked Juan not to tell SSA or his foster mother that she was messaging him. Juan reported her messages scared him. He told the social worker Alma had not changed and was "'lying again, telling me to lie again.'"
When the social worker confronted Alma about this unauthorized contact with Juan, in early April, she was defiant. She told the social worker that what she was doing was not as bad as what SSA was doing - keeping her children from her - and she refused to discuss the issue unless SSA told her how it had learned about her conduct.
SSA consulted with the children's therapists before the visitation review hearing to get their recommendations regarding resuming visitation. Ruby's therapist reported in early March 2018 that she was exhibiting anxiety at the prospect of returning to live with Alma and was clinging to her foster mother as a result. The uncertainty about her future (staying with her foster parents or being made to go back to Alma) was causing this anxiety.
The therapist reported that she had met with both children, and neither one of them wanted to live with Alma or visit her. She therefore recommended that visiting not resume, because it would cause the children more anxiety and confusion.
Later in March, Ruby's therapist reported that her anxiety about being abandoned by her foster mother had subsided and she was happy and cheerful in therapy. The therapist felt resuming visitation at this point would revive Ruby's feelings of anxiety and uncertainty. "[N]ot knowing what was going to happen with [the children's] placement, if they were going to live with [Alma] was causing them to be anxious. . . . [I]f they knew they would not be going to live with [Alma], and were going to be adopted, they may feel different about seeing [Alma]."
Shortly before the visitation hearing, Ruby's therapist was contacted again for her recommendations. She stated she did not think Ruby should have contact with Alma unless reunification was the goal. Seeing Alma would create anxiety, conflict, and guilt, whereas with her foster mother, Ruby felt safe and at peace.
Alma's reunification services had been terminated in February 2018. She could, however, still petition under section 388 to have them resumed.
Juan's therapist reported shortly before the visitation hearing that Juan wanted to know that Alma was okay, but he did not want to see her or live with her. The prospect of returning to live with her frightened him. He also told the therapist that Alma was going to lie. He did not want to see her, even in a joint counseling session. He remembered Alma's accusing him of causing his sister's death and the guilt he felt.
At the visitation review hearing on April 17, the court admitted SSA's report regarding whether visitation should resume. As the court pointed out, the initial no-visitation order resulted from Alma's "manipulating the children, telling the children to lie" and from "the children's worrying about being found out that they were lying[.]" Now, more than two months later, "the detriment continues, because [Alma] continues to violate the court's order in talking about the case." "[Alma's] still contacting Juan . . ., she's still making him feel nervous and worried and anxious. So I don't see how things have changed for the better at this point for me to find at this point that the visitation contact is not detrimental." The no-visitation order remained in place.
The section 366.26 hearing was scheduled to begin on June 14, 2018. On the morning of the hearing, a private attorney, hired by Alma, informed the court he wished to substitute in for the public defender, Alma's court-appointed attorney. The private attorney had communicated with the public defender on May 29, stating that he was planning to substitute in. Accordingly the public defender stopped preparing for the hearing. As of June 14, no substitution of attorney form had been filed. No explanation for the substitution was offered.
A discussion of how long a continuance would be necessary for the new attorney to be ready to proceed ensued. The court determined that an 18-day continuance would be required, as opposed to a five-day continuance necessitated by continuing the public defender on the case. Referring to the strain that uncertainty was placing on Juan and Ruby and the delay between informing the public defender of the decision to hire private counsel and informing the court, the court denied the request for the longer continuance.
The hearing then proceeded on June 19. At the conclusion of the hearing, which included testimony from the social worker and Alma, the court found that Juan and Ruby were adoptable and that neither the parental-benefit nor the sibling-relationship exceptions applied. Alma does not dispute these findings. The court terminated her parental rights, as well as those of the children's father. Only Alma has appealed.
DISCUSSION
Alma has identified three issues on appeal, all of which are related to her last-minute attempt to substitute private counsel for the public defender, her court-appointed attorney. She argues that the court should have conducted a Marsden hearing when she asked to substitute retained counsel for the public defender. She also maintains that the juvenile court's denial of a continuance was both an abuse of discretion and a denial of her due process rights. I. Marsden Hearing
In People v. Marsden (1970) 2 Cal.3d 118 (Marsden), the California Supreme Court held that it was error to deny a criminal defendant's motion for new counsel based on inadequate representation without listening to the reasons for the request. (Id. at p. 124.) The defendant had twice told the trial court he did not believe his attorney was adequately representing him, but when he tried to give examples, the court refused to let him speak. (Id. at pp. 120-122.) Reversing the judgment, the supreme court observed, "A trial judge is unable to intelligently deal with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request." (Id. at p. 123.)
"Juvenile courts, relying on the Marsden model, have permitted the parents, who have a statutory and a due process right to competent counsel, to air their complaints about appointed counsel and request new counsel be appointed. [Citations.]" (In re V.V. (2010) 188 Cal.App.4th 392, 398.) The request for a Marsden hearing must, however, be timely. "The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case." (People v. Whitt (1990) 51 Cal.3d 620, 659; see In re M.P. (2013) 217 Cal.App.4th 441, 460 [state has interest in resolving child's status without delay].)
On appeal, Alma does not contend that she asked for a Marsden hearing and was denied one. She also does not contend that she complained to the court about the public defender's ineffectiveness. Instead, she contends that when she asked to substitute retained counsel for the public defender, the court should have realized she was telling it the public defender was ineffective. Having decoded this hidden message, the court should have held a Marsden hearing.
Alma concedes that she never explained to the court why she wanted a new attorney. She now contends that Marsden required the court to inquire into her reasons. She is mistaken.
Marsden applies when a party wishes to substitute one court-appointed lawyer for another court-appointed lawyer on ineffectiveness grounds. (See People v. Turner (1992) 7 Cal.App.4th 913, 916-918.) Under these circumstances, the court may be required to delve more deeply into the reasons for the party's dissatisfaction. But Alma did not ask to change court-appointed lawyers. She wanted private counsel to represent her instead of the public defender. She was not required to state a reason for this change, and the court had no duty to inquire into her reasons.
The facts in In re Giovanni F. (2010) 184 Cal.App.4th 594 (Giovanni F.) are quite similar to the facts of this case. The father in that case missed most of the jurisdiction hearing because he was on the phone outside the courtroom trying to retain private counsel. The attorney said he would take the case, but he needed a continuance. The court denied the continuance, noting that trial had already begun and the father had had ample time to hire counsel. (Id. at pp. 603-604.)
After noting that a court does not have a duty to initiate a Marsden hearing sua sponte, the reviewing court held that the juvenile court in Giovanni F. did not have to conduct a Marsden hearing, even though before trial started the father's counsel had told the court the father wanted to make a Marsden motion. (Giovanni F., supra, 184 Cal.App.4th at p. 604.) The court disagreed with the father's contention that the court should have asked him why he wanted new counsel. "The request [for a continuance] was based on [the father's] attempt to retain a new attorney, not on an assertion that his appointed counsel's performance was inadequate. [Citation.] There was still no request for a Marsden hearing. Thus, there was no error." (Ibid.) The reviewing court also upheld the denial of the father's request for a continuance to obtain new counsel. The request was made more than a month after the hearing was set and more than a month after the father had expressed his intention to hire counsel. "[The minor] was entitled to a prompt resolution of his custody status." (Id. at p. 605.)
So too here. Alma never requested a Marsden hearing, and she never indicated that her desire to hire private counsel stemmed from her appointed counsel's ineffectiveness. She may have disliked him personally, or she may have believed that private counsel would be more attentive to her. There may have been many reasons, other than ineffectiveness, for her decision. The juvenile court was not required to read her mind.
Alma now argues that the fact she was willing to pay a lawyer, even though she was "desperately poor," alerted the juvenile court to the public defender's ineffectiveness. There is no evidence in the record that Alma was "desperately poor." In early April, before the visitation hearing, she told SSA that she had secured housing for herself and the children and could support them. She also testified to that effect at the section 366.26 hearing.
The two cases on which Alma relies most heavily, In re James S. (1991) 227 Cal.App.3d 930 (James S.), and In re Ann S. (1982) 137 Cal.App.3d 148 (Ann S.), point up these essential differences. The parent in James S. had a written list of criticisms of her court-appointed counsel's effectiveness, which her counsel then presented to the court, seeking a Marsden hearing. The juvenile court agreed she was entitled to a Marsden hearing and conducted one. (James S., supra, 227 Cal.App.3d at pp. 934-935.) The minor in Ann S. asked the court for a new court-appointed attorney. The reviewing court held that the court should have asked her why she wanted a new lawyer and, if the complaint was valid, should have appointed another lawyer per Marsden. (Ann S., supra, 137 Cal.App.3d at p. 150.) Both cases involved changing one court-appointed lawyer for another, and the party involved either had raised the issue of ineffectiveness of counsel (James S.) or had asked for a new court-appointed lawyer (Ann S.). Alma did neither.
The only issue before the juvenile court in this case was whether switching lawyers on the day of the section 366.26 hearing would unreasonably delay the proceedings to the detriment of the children. The court decided that it would. This decision was well within the court's discretion. The children's anxiety about their future alone provided good grounds for refusing to prolong the proceedings any more than necessary.
Failing to grant relief that was never requested cannot be transmogrified into abuse of discretion. The juvenile court in this case did not err by not conducting a hearing that no one asked for.
II. Continuance - Abuse of Discretion
Section 352, subdivision (a), provides in pertinent part, "[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance." (See Cal. Rules of Court, rule 5.550(a).) Continuances are discouraged in dependency cases. (Giovanni F., supra, 184 Cal.App.4th at p. 604.)
We review an order denying a continuance for abuse of discretion. (In re V.V., supra, 188 Cal.App.4th at p. 399.) We cannot find that the court's refusal to continue the section 366.26 hearing for the 18 days needed for Alma's new counsel to take over was an abuse of discretion. The record strongly supports the court's conclusion prolonged delay would be contrary to Juan's and Ruby's interests. Both children showed extreme anxiety at the possibility, however remote, that they might be returned to Alma. Ruby was so fearful of being separated from her foster mother that she did not want to go to after-school day care. Both children badly needed to have this uncertainty removed; that is, they needed "prompt resolution of [their] custody status" and an end to "prolonged temporary placements." A delay of five days was forced upon the court by circumstances and was therefore a delay "for a period of time shown to be necessary."
There was no similar showing of good cause for a more extended delay. Alma had had ample time to get a new attorney on board and up to speed without needing a continuance. In fact, the period of time between the date she informed the public defender that private counsel would be taking over - May 29 - and the initial date of the section 366.26 hearing - June 14 - was almost exactly the same as the continuance she asked for on June 14. The record amply supports the court's exercise of discretion in this matter.
III. Continuance - Denial of Due Process
Alma argues on appeal that she had a due process right to appear at the section 366.26 hearing with the counsel of her choice. The court's refusal to grant a long continuance deprived her of this right.
A parent has due process rights at the section 366.26 hearing, which can result in the termination of parental rights. These rights include notice, the opportunity to be heard, and an opportunity to cross-examine witnesses. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816; In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) They also include the right to representation by competent counsel. (In re Paul W. (2007) 151 Cal.App.4th 37, 44-45.)
Due process and the right to effective assistance of counsel include a right to choose one's privately retained counsel. (People v. Courts (1985) 37 Cal.3d 784, 789 (Courts).) The right to choose retained counsel is not absolute, however. For example, a party is not entitled to a continuance to exercise this right if he has been "'unjustifiably dilatory' in obtaining counsel, or 'if he arbitrarily chooses to substitute counsel at the time of trial.' [Citation.]" (Id. at pp. 790-791.)
The decision to grant or deny a continuance in this context is within the trial court's discretion. (Courts, supra, 37 Cal.3d. at p. 790; People v. Crovedi (1966) 65 Cal.2d 199, 206-207.) Before exercising this discretion, the trial court must '"consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors[,] and the court[,] and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion."' [Citations.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1126.) The court must also ensure that the request is not a "ruse for obtaining a delay" (People v. Gaynor (1963) 223 Cal.App.2d 575, 581) that "'"would be subversive of the prompt administration and execution of the laws[.]" [Citations.]'" (Id. at p. 582). In short, "[t]he right to counsel, even counsel of one's choice, is to promote a just and prompt administration of the law, not to thwart it." (People v. Lefer (1968) 264 Cal.App.2d 48, 50.)
The issue here is the same issue implicated in the Marsden discussion. While a party has a right to private counsel, there is no unfettered right to a continuance to bring in new counsel. The right to counsel of one's choice must be balanced against other important rights.
In this case, the other important rights are spelled out in section 352, which refers to the minor's interests including prompt resolution of the minor's custody status, and minimizing the damage caused by prolonged temporary placement. The state too has an interest in the prompt resolution of dependency proceedings. (In re Malinda S. (1990) 51 Cal.3d 368, 384, superseded by statute on other grounds; In re M.P., supra, 217 Cal.App.4th at p. 460.)
Alma knew more than two weeks before the section 366.26 hearing that new counsel would be substituting for the public defender. She took no steps whatsoever to make this official - not even by filing a substitution of attorney form. Waiting until the morning of this critical hearing to inform the court of a change of counsel and then asking for a lengthy continuance to accommodate a new lawyer smacks of a "ruse for obtaining delay" and certainly subverts the prompt administration of the law. The juvenile court did not violate Alma's due process right when it refused to go along.
IV. Prejudice
Finally, Alma has failed utterly to address the issue of prejudice. It is not enough to show error to obtain reversal. Alma must also show that failing to grant her a continuance to allow private counsel to represent her or to hold a Marsden hearing prejudiced her. In other words, the outcome would have been different if the continuance had been granted or the Marsden hearing had been held. (See Cal. Const., art. VI, § 13; In re Emily D. (2015) 234 Cal.App.4th 438, 449 [continuance]; In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195 [right to counsel]; In re M.P., supra, 217 Cal.App.4th at p. 460 [Marsden hearing]; People v. Washington (1994) 27 Cal.App.4th 940, 944 [same].) Alma has presented no argument or authority on this subject at all.
The main issues before the juvenile court at the section 366.26 hearing were whether Juan and Ruby were adoptable and, if they were, whether any exception to termination of parental rights applied. Regardless of who was representing Alma or whether she obtained an 18-day continuance, the evidence on these issues was fixed. Juan and Ruby were adoptable; their foster parents wanted to adopt them. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) Alma could not hope to establish the parental-benefit exception of section 366.26, subdivision (c)(1)(B)(i), because she had not been visiting, owing entirely to her own conduct. The evidence also strongly supported the court's determination that Juan and Ruby would not benefit from continuing their relationship with Alma. The sibling exception of section 366.26, subdivision (c)(1)(B)(v), was equally inapplicable because Juan and Ruby never lived with Arely, who was born after they were detained, and they saw her only intermittently, when they were still visiting with Alma. Their tenuous relationship with Arely could not possibly have outweighed the benefits of adoption.
Section 366.26, subdivision (c)(1)(B)(i), provides in pertinent part, "[T]he court shall terminate parental rights unless . . . [¶] . . . [¶] The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Section 366.26, subdivision (c)(1)(B)(v), provides in pertinent part, "[T]he court shall terminate parental rights unless . . . [¶] . . . [¶] There would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
DISPOSITION
The order terminating Alma's parental rights is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. THOMPSON, J.