In re C.G.

Filed 6/11/10 In re C.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

G.G., Sr., father of the minors, C.G. and G.G., Jr., appeals from orders of the juvenile court terminating his parental rights and denying his Marsden motion (Peoplev. Marsden (1970) 2 Cal.3d 118

(Marsden)).[1] (Welf. & Inst. Code,  366.26, 395.)[2] Appellant contends the court erred in denying his Marsden motion. We shall affirm.

FACTUAL BACKGROUND

The Sacramento County Department of Health and Human Services (the Department) filed petitions in August 2008 alleging that the minors, C.G., age 2, and G.G., Jr., age 3, were at risk of physical harm due to an incident of domestic violence which resulted in appellants arrest and the mothers hospitalization for treatment. Appellant was present in custody at the detention hearing where counsel was appointed and the court set a hearing on relative placement.

The relative placement hearing occurred in late August 2008. Appellant was present with counsel. Based on information in a memo from the Department, the court denied placement with the maternal and paternal grandparents and continued the minors in foster care, no other relatives having come forward or been suggested for evaluation.

The jurisdictional report stated appellant was facing a three-year state prison term for offenses in connection with the minors removal. The report stated no relatives, other than those rejected at the placement hearing, had come forward.

Appellant was present at the jurisdictional/dispositional hearing. The record does not reflect that he suggested any new relative to be considered for placement. Appellant signed and initialed both a waiver of trial on jurisdiction and disposition and a waiver of his right to reunification services. The court informed appellant of his rights and accepted his waivers.

The Departments report in March 2009 for the six-month review hearing stated the minors remained in foster placement. The Department recommended termination of the mothers services. At the review hearing, the court adopted the Departments recommendation and set a section 366.26 hearing to select a permanent plan for the minors. Appellant was not present but was represented by counsel who objected to proceeding in his absence. The court denied the request to continue the hearing to produce appellant, noting that he was not entitled to be present.

In April 2009, the Department requested permission to place the minors in another county to facilitate permanent planning. The request was served on appellant. Appellant was not present at the hearing on the request in May 2009, however, his counsel entered an objection to the request on his behalf. The court granted the request.

The Departments report for the section 366.26 hearing stated appellant remained in custody and did not have visits with the minors. The minors were likely to be adopted because they were young, healthy, developmentally on target and had no significant behavioral problems. The caregivers had an approved home study and were prepared to adopt the minors. The Department recommended termination of parental rights.

The section 366.26 hearing commenced in August 2009. Appellant was present and brought a Marsden motion to have counsel relieved.[3] The court gave appellant an opportunity to elucidate his dissatisfaction with counsel. Appellant explained that he believed he had been lied to and his family became aware the minors were in foster care only in July 2009; he had not been transported to court; he was told he would have no rights in court; he was not given the opportunity to object to false claims in reports; and counsel would not respond to his letters or calls and would not visit him. The court invited counsel, Ruthi Roberts, to respond, however appellant asserted his complaints related to a different attorney, James Stillens, who had represented him at an earlier date.

Attorney Roberts acknowledged appellants frustration at being in custody and unable to be involved in the case. Roberts noted that orders to produce appellant from prison, specifically in March for the review hearing, were denied as was a request to continue the case. Roberts stated she had explained to appellant he did not have the right to be present at the review hearing. Roberts further stated she had explained the limited issues that could be addressed at the current hearing, which led to his frustration. Roberts informed the court that appellant wanted the minors placed with his family if his parental rights were to be terminated and mentioned a paternal great-aunt who had contacted the Department in that regard. Roberts stated appellant had signed a waiver of services and she had explained the alternatives to him at that time. Because of a no-contact order, appellant was limited to written contact with the minors through the social worker. Roberts explained she believed that appellant now felt the system and counsel had failed him and he did not get a fair chance.

Appellant told the court he did not understand the implications of signing the waiver of services. He said he did not want to sign it, but Attorney Roberts told him he would not be able to comply with the plan from prison and he would have a chance later to reunify. Appellant asserted that he did not know the minors were still in foster care until March, and then contacted the paternal great-aunt in July.

Attorney Roberts responded by referring to her notes for the jurisdictional/dispositional hearing which stated she discussed the waiver with appellant in light of the no-contact order, the fact that appellant had not yet been sentenced, and because the length of his term was unknown. Appellant seemed to be okay about waiving the hearing and wanted to waive services, while the mother engaged in services. Roberts acknowledged there was a possible misunderstanding about the potential for reunification on release, observing that appellant had not been released during the entire dependency process and she never had the opportunity to file a motion for services for him. Roberts said there were also no notes from Attorney Stillens indicating it was appropriate to move to reopen services.

The court concluded appellants present dissatisfaction was largely related to earlier decisions made by himself, the court, the social worker and counsel, and not the issues that were before the court. The court found there had been reasonable explanations for how the case progressed and further found no justification for substituting in new counsel.

At the contested hearing two days later, appellant testified he had a good relationship with the minors and had provided for them when they were a family. He believed the minors missed him and they had a bond. During the dependency, he had written to the minors and sent them pictures. The court found appellant had not established an exception to the preference for adoption and terminated parental rights.

DISCUSSION

I

Appellant argues the juvenile court erred in denying his Marsden motion because he demonstrated there was a complete breakdown in the attorney-client relationship because he had been lied to about services, coerced into waiving services, and was not apprised of the status of the case. Appellant argues he was prejudiced by not being given the right to attend the proceedings or have his relative assessed for placement of the minors.

In a criminal case, when a defendant requests substitute counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current counsel is not adequately representing him. (Marsden, supra,2 Cal.3d at pp. 123-124.) 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. ( 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153, fn. 6; In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.) However, substitute counsel need not be appointed unless, in the exercise of the courts discretion, the court finds either that counsel is not providing adequate representation or there is such an irreconcilable conflict between the client and counsel that ineffective representation is likely to result. (People v. Smith (1993) 6 Cal.4th 684, 696.) Disagreement on trial tactics does not necessarily compel appointment of new counsel. (People v. Williams (1970) 2 Cal.3d 894, 905.)

Respondent contends appellants claim must be raised by a petition for writ of habeas corpus. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) Appellant did file a writ in this court challenging the denial of his Marsden motion (C064238). The petition was denied on February 25, 2010. Appellant sought review of this order in the Supreme Court, which denied review on April 22, 2010 (S180739). In this challenge to the denial of his Marsden motion asserting ineffective assistance of counsel and breakdown of the relationship, appellant is limited to the record on appeal.

Reviewing courts will reverse . . . on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) When the record is silent on the reasons that counsel acted as he did, the case must be affirmed unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . (People v. Pope (1979) 23 Cal.3d 412, 426.)

Here, the court allowed appellant to fully explain his grievances with counsel and his dissatisfaction with the proceedings. Counsel explained the reasoning behind the decision to waive services and appellants agreement with that decision at the time. The record includes a signed waiver of services, which was explained to appellant at the time by counsel and reviewed by the court before accepting the waiver. Had appellant felt the court erred in accepting the waiver, he could have appealed the judgment of disposition but did not do so. He may not assert the issue now. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)

As counsel observed, appellant was not entitled to be present at any hearing except the jurisdictional/dispositional hearing and the section 366.26 hearing. (Pen. Code,  2625.) However, while he was in local custody, he also attended the detention hearing and the relative placement hearing. He was also represented by counsel at the review hearing. Appellant was neither denied representation nor improperly denied the right to appear.

Appellant asserts he was unaware the minors were in foster care and thus did not have an opportunity to suggest placement with the paternal great-aunt. The record belies this claim. Appellant was present at the initial hearing when the minors were detained. He was also present at the relative placement hearing and knew the court had denied placement with the grandparents. He was also present at the jurisdictional/ dispositional hearing and was aware from the courts orders that the minors would be continued in foster care. The review report stated the minors remained in foster care and appellant was served with the request to move them out of county to a new foster placement. At no time before the section 366.26 hearing did appellant suggest the paternal great-aunt as a potential relative placement and she did not come forward until well after reunification services were terminated. Appellant was not denied the opportunity to suggest relatives who could be assessed for placement and was not misled about the status of the case.

Nothing in the record supports a claim of ineffective assistance of counsel or that there was a complete breakdown of the attorney-client relationship. Appellants frustration with the process and his inability to affect it from prison is apparent. However, this frustration does not justify a change of counsel. The trial court did not abuse its discretion in denying appellants Marsden motion.

II

To the extent that appellants brief can be read to assert a direct challenge to the order terminating parental rights, that claim also fails.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose a permanent plan for the minor. The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . . ( 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Evid. Code,  500; Cal. Rules of Court, rule 5.725(e)(3).)

Here, no one disputed that the minors were adoptable. At the hearing, both parents attempted to establish that they had maintained regular visitation and contact with the child[ren] and the child[ren] would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) However, appellant had no visitation with the minors from the outset of the dependency, although he maintained some contact through letters and drawings. He was unable to establish the existence of a substantial positive emotional attachment between the minors and himself that would overcome the preference for adoption. (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) The juvenile court did not err in terminating appellants parental rights.

DISPOSITION

The orders of the juvenile court are affirmed.

BUTZ , J.

We concur:

SCOTLAND , P. J.

CANTIL-SAKAUYE , J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] Counsel initially was appointed to represent appellant on appeal. After reviewing the record, counsel informed his client that he intended to send a letter to this court pursuant to In re Sade C. (1996) 13 Cal.4th 952. Appellant notified counsel he wished to represent himself. Counsel and appellant jointly moved for an order relieving counsel, which was granted. Thereafter, appellant filed a brief in propria persona. Although preceding the opinion in In re Phoenix H. (2009) 47 Cal.4th 835, this procedure is not in conflict with that opinion.

[2] Undesignated statutory references are to the Welfare and Institutions Code.

[3] Appellant was represented at all times by Dependency Advocates of Sacramento. Various individuals from that group appeared on appellants behalf. Naisha Covarrubias appeared at the detention and relative placement hearings and James Stillens appeared at the six-month review hearing. At all other hearings, including the jurisdictional, dispositional and termination of parental rights hearings, appellant was represented by Ruthi Roberts who responded to the court at the Marsden hearing.