In re M.S.

Filed 4/14/09 In re M.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

----

C. M. (appellant), the father of M. S. (the minor), appeals from the juvenile courts order terminating his parental rights. (Welf. & Inst. Code,  366.26, 395.)[1]

Appellant contends the juvenile court committed reversible error in failing to conduct an adequate inquiry into the adequacy of the representation received by appellant. Appellant also claims he received ineffective assistance of counsel. For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2007, Sacramento County Department of Health and Human Services (DHHS) filed an original juvenile dependency petition on behalf of the three-year-old minor. That petition alleged the minor had been sexually abused by the minors mothers boyfriend, and that the mother of the minor had failed to provide adequate care for and supervision of the minor. The petition named appellant as the alleged father of the minor.

The juvenile court sustained the petition as amended and adjudged the minor a dependent child. Appellant was serving a five-year state prison term for a possession of a controlled substance for sale conviction, and expected to be released from custody sometime in 2009. In September 2007, the juvenile court found appellant to be the presumed father of the minor.

The juvenile court appointed counsel to represent appellant. At a December 2007 review hearing from which appellant was absent, counsel for appellant informed the court that counsel had received a copy of a letter sent to the court from appellant. In it, according to counsel, appellant referred to a lack of proper aid of counsel. Counsel also advised the court that appellant had not communicated directly with counsel. The court did not schedule a Marsden[2] hearing on the matter at this time, advising counsel it would require additional information to do so. The court also encouraged appellant, through its minute order, to communicate with his counsel.

In March 2008, the juvenile court replied to a letter it had received from appellant in February. The contents of that letter are unknown. However, the court advised appellant it had provided the letter to appellants counsel.

The minor had been placed with her maternal aunt. In April 2008, DHHS moved pursuant to section 388 to modify that placement to the home of the maternal grandparents. The juvenile court later granted that petition, ordering the minor placed with her maternal grandparents.

In its report prepared for the section 366.26 hearing, DHHS opined that the minor could be adopted by the maternal grandparents. Following her April 2008, placement, the minor appeared to be developing a close attachment to her grandparents. According to the report, the grandparents were committed to adopting the minor, having attended an adoption orientation, and were working on their application for an adoption home study.

DHHS acknowledged the grandparents might face obstacles related to past criminal convictions. The grandfather has a 1991 felony conviction for battery on emergency personnel with injury, and the grandmother a 1990 misdemeanor conviction for resisting a public officer; both convictions arose out of the same incident. After an initial denial of approval for placement, due to their criminal convictions, thereafter the grandparents prevailed in a grievance hearing and gained approval for placement of the minor, based on their rehabilitation.

Appellant was present at the July 2008, section 366.26 hearing. Counsel for appellant stated appellants opposition to the proposed termination of his parental rights, and counsel suggested guardianship as an appropriate alternative disposition. Appellant testified that he opposed adoption, and told the juvenile court he wanted his visitation with the minor to continue. Appellant also wanted to gain custody of the minor at some point in the future.

At the conclusion of the section 366.26 hearing, the juvenile court found it likely the minor would be adopted and ordered appellants parental rights terminated.

DISCUSSION

I.

Appellant contends the juvenile court committed reversible error in failing to conduct a hearing, pursuant to People v. Marsden, supra, 2 Cal.3d 118, in order to inquire into appellants grievances with his trial counsel. Characterizing the courts inaction as a complete abdication of its responsibility, appellant argues the court in effect directed him to resolve his concerns on his own. According to appellant, the second letter to the court also should have triggered an appropriate inquiry. Finally, appellant asserts that the failure to conduct a proper hearing infected the section 366.26 hearing, where he received ineffective assistance of counsel.

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, supra, 2 Cal.3d at pp. 123-124.) The court need not grant the request for substitution of counsel absent a showing that denial would substantially impair the defendants 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. (People v. Marsden, supra, at pp. 123-124.)

In a dependency proceeding, the parents have a statutory and a 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. These parents must have some mechanism for challenging the representation when they perceive inadequacy or the right to counsel is meaningless. Thus, juvenile courts, relying on the Marsden model, have permitted the parents to air their complaints about appointed counsel and request new counsel be appointed.

An exhaustive Marsden hearing is not required. It is only necessary that the juvenile court make some inquiry into the nature and complaints against the attorney. (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13, emphasis in original.) Moreover, the courts 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.)

Here, at the December 2007 review hearing from which appellant was absent, the following colloquy occurred between appellants trial counsel and the juvenile court:

[Appellants trial counsel]: . . . [M]y client, sent the Court a letter, which then got referred to me postmarked November 27th. And it appears to have been written by a--what you might call a jailhouse lawyer friend of [appellant]. It states a number of issues, talks about requesting a writ of habeas corpus and other legal issues. It says that under a section--which Im intepreting as reading prayer for relief, sort of colloquial. It says that as one of the things as grounds, number two, says--I quote, I lack both the skill and knowledge to adequately prepare my defense. This was not fair court without proper aid of counsel, period. Goes onto [sic] list another ground and a general laundry list[s] [sic] of complaints that was [of a] sufficiently [Marsden]-like nature. Its my understanding my duty is to if I receive letters of this nature that appear to be complaints about the performance of court appointed counsel, that I have to notify the Court of them. So Im doing that in this case. There is no other indication in this letter of--of any detail or additional explanation of what is meant by the phrase without proper aid of counsel. That is the only reference in the letter is simply that phrase. I needed to bring it to the Courts attention.

THE COURT: Where is [appellant] currently incarcerated?

[Trial counsel]: Solano State Prison in Vacaville.

THE COURT: Okay. The report does not reflect notice to [appellant], but I do have the notice of review hearing which was sent to him at Solano State Prison at Vacaville. So it does appear that hes received proper notice for this hearing. At this point in time the Court is not going to calendar a Marsden motion. But other than the conclusory assertion, Im not sure what it is [appellant] would be referencing. He was present at the last underlying proceedings, for at least a portion of those proceedings. So well have the minute order reflect that if [appellant is] desirous of filing a Marsden motion, more specificity is needed in regard to his belief that hes not adequately assisted by counsel. He should certainly speak with [trial counsel] initially. [] [Trial counsel], has he had any communication with you regarding the belief that he hasnt had adequate assistance of counsel?

[Trial counsel]: No. I think--I think essentially he is worried that this case could lead to an adoption. Thats basically, I think, his worry. But other than what I just read to you, we have had no communication at all.

In this case, absent any indication by appellant that he wanted substitute counsel, the juvenile court acted properly in deciding not to set a Marsden hearing at that time. (People v. Richardson, supra, 171 Cal.App.4th at p. 485.) This is especially true where, as here, appellant was not at the review hearing to clarify the letter and the court otherwise had very little information before it. Moreover, the court explicitly left open the possibility of a future hearing to consider appellants concerns.

The record reflects the juvenile court provided appellant with the information and guidance necessary to assist appellant in filing a Marsden motion in the future, if he so desired. That direction was contained in the courts minute order, served on appellant, which also encouraged appellant to communicate with his trial counsel. Thereafter, when the court received another letter from appellant, it acted properly in providing it to appellants counsel with appropriate instructions to appellant.[3]

Having heard and addressed appellants counsels concerns about the first letter from appellant, the juvenile court met its obligation to make some inquiry into appellants grievances such as they were. (In re James S., supra, 227 Cal.App.3d at p. 935, fn. 13.) Nothing more was required.

After the juvenile court made its ruling at the December 2007 review hearing, and following the courts receipt of and action taken on appellants second letter, nothing further pertaining to a Marsden hearing or dissatisfaction with appellants trial counsel is contained in the record. Although appellant was present and testified at the July 2008 section 366.26 hearing, he said nothing about the contents of the letters, nor did he raise any Marsden issue. Presumably, appellant had resolved any previous concerns, if any, that he may have had with his trial counsel.

On this record, the juvenile court reasonably could conclude that appellants failure to raise any Marsden issue constituted an abandonment of his previous claim, if any. (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 actuallyrule. 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.)

There was no error.

II.

Appellant claims his trial counsel rendered ineffective assistance to him at the section 366.26 hearing in three respects. First, appellant faults his counsel for the latters failure to object to the absence of a preliminary adoption assessment, as required by statute. Next, appellant alleges his counsel erred in failing to seek a continuance of the section 366.26 hearing in order to give DHHS the opportunity to remedy the statutory deficiency. Finally, appellant asserts counsel was wrong for failing to raise a statutory exception to termination of parental rights. According to appellant, the criminal histories of the maternal grandparents likely constituted legal impediments to adoption, making adoption, at least by the grandparents, unlikely and the statutory exception to termination appropriate. Therefore, appellant argues, his counsels inadequate performance prejudiced him, as he was deprived of his right to the preservation of his biological relationship with the minor.

In order to show ineffective assistance of counsel, appellant must demonstrate that counsel failed to perform with reasonable competence, and that it is reasonably probable a determination more favorable to the [appellant] would have resulted in the absence of counsels failings. (People v. Belmontes (1988) 45 Cal.3d 744, 767, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 2; People v. Fosselman (1983) 33 Cal.3d 572, 583-584; People v. Pope (1979) 23 Cal.3d 412, 425.) When a claim of ineffectiveness is made on appeal, we examine the record to determine if there is any explanation for the challenged aspects of representation. If the record sheds no light on why counsel failed to act in the manner challenged, the case is 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, supra, at p. 426.) Ordinarily, the proper recourse to raise an ineffective assistance of counsel claim is by a petition for writ of habeas corpus, rather than by direct appeal. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)

In this case, DHHS was required by statute to prepare an assessment report for the section 366.26 hearing. ( 366.21, subd. (i).) The following must be included in that report: A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. . . .

( 366.21, subd. (i)(4).)[4]

The report prepared by DHHS for the section 366.26 hearing stated the maternal grandparents were committed to adopting the minor, and that they understood the legal and financial rights and responsibilities of adoption. That report also noted the minor was doing well in the custody of her maternal grandparents, suggesting her needs were being met. Finally, the report indicated the grandparents only recently had attended an adoption orientation, and were preparing to submit an application for an adoption home study.

It is true the assessment report did not contain information pertaining to the criminal histories of the maternal grandparents. Undoubtedly, that information would become available following completion of the adoption home study process, and be included in a supplemental report. However, the record contains other evidence, not contradicted by appellant, pertaining to the background of the grandparents. It reflects that, during a kinship evaluation, authorities discovered the criminal convictions of the grandparents, which we have described previously. The record also shows that, ultimately, the grandparents prevailed in their quest for placement of the minor with them. Both were found to have been employed and free of subsequent criminal involvement. In light of their placement request being approved, it is reasonable to assume the official duty was performed (Evid. Code, 664; 361.3, subd. (a)(5)), and that the authorities had determined the grandparents were free of child abuse or neglect referrals.

It is noteworthy that the statute requires only a preliminary assessment. Here, under the circumstances presented, the report submitted by DHHS, which was considered by the juvenile court, constituted an adequate summary of the known background of the minors maternal grandparents. When combined with other information presented to the court, the court had sufficient material before it with which to determine the likelihood that the grandparents would be able to adopt the minor.[5] Therefore, we reject appellants claim that there is no assessment and [DHHS] had no information on the family to provide to the court.

Counsel is not obliged to undertake futile or frivolous actions on behalf of a client. (Cf. People v. Constancio (1974) 42 Cal.App.3d 533, 546.) As we have suggested, if appellants counsel had objected to the sufficiency of the assessment or sought a continuance to review additional information, it is highly unlikely that appellant would have obtained some favorable benefit or outcome. In sum, we conclude that, even if counsel should have done as appellant suggests, it is not reasonably probable that appellant would have prevailed. Accordingly, there was no ineffective assistance of counsel pertaining to the assessment report.

One statutory alternative to termination of parental rights is where [t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. ( 366.26, subd. (c)(1)(A).)

Appellant argues that, as it was likely the grandparents would not pass an adoptive home study, his trial counsel should have raised the exception to adoption contained in section 366.26, subdivision (c)(1)(A). According to appellant, if the home study were not approved, the elements would be present for the relative caretaker exception to adoption: a relative caretaker [sic] who was [sic] unable to adopt and a child who would suffer detriment if moved from the relatives [sic] home. At that time, appellant would have been entitled to a contested section 366.26 hearing and argued, and likely proven, the exception to adoption. . . .

We reject appellants claims as speculation, unsupported by the record. The record is silent as to counsels reason for failing to raise the statutory exception to adoption. On this record, we will not presume ineffective assistance from a silent record. (Cf. People v. Fosselman, supra, 33 Cal.3d at p. 581.) In any event, the record contains substantial evidence the grandparents were willing and able to adopt the minor, and that, contrary to appellants claim, no legal impediment to adoption was likely to be found. As such, even if appellants counsel should have argued the statutory exception, it is highly unlikely that appellant would have secured a more favorable outcome.

In sum, our review of the record, particularly the transcript of the section 366.26 hearing, persuades us that appellant received the assistance of competent counsel. In fact, at that hearing, appellants counsel adduced testimony favorable to appellant through the latters testimony. Moreover, counsel twice expressed appellants opposition to the proposed termination of appellants parental rights. The record suggests that, presented with a difficult case, appellants counsel did the best that could be done for appellant under the circumstances presented to counsel.

DISPOSITION

The order of the juvenile court terminating appellants parental rights is affirmed.

CANTIL-SAKAUYE , J.

We concur:

SCOTLAND , P. J.

SIMS , J.

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[1] Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

[2]People v. Marsden (1970) 2 Cal.3d 118.

[3] Contrary to appellants assertions, the record reflects the first letter from appellant was sent to the juvenile court, then referred to counsel.

[4] Effective January 1, 2009, subdivision (i)(4) of section 366.21 has been renumbered as subdivision (i)(l)(D).

[5] The grandparents also intended to adopt a half sibling of the minor, who is not involved in this appeal.