In re Ruby B.

Filed 10/25/06 In re Ruby B. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from orders of the Superior Court of Orange County, John C. Gastelum, Judge. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Paula A. Whaley Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

The child, Ruby B., who is now 17 years old, was detained in 2002 and has never returned home. She is under a permanent plan of legal guardianship. Timothy B. (the father) argues that the juvenile court’s findings and orders at a review hearing should be set aside because the court did not conduct a full hearing into his inquiry about obtaining a new attorney and because adequate evidence did not support the court’s findings of sufficient services. Neither of these arguments has merit, and we affirm the court’s orders.

I

FACTS

Because of the limited issues on appeal, we summarize the background facts only briefly.

The father had been the sole custodian of Ruby and her brother, Timmy, since 1994. The family had been the subject of approximately a dozen contacts with the Orange County Social Services Agency (SSA) dating back to 1985. In June 2002, Ruby, then 13 years old, was detained after the father punched her in the face and broke her nose. Timmy was also placed into protective custody, and criminal charges were filed against the father.

The dependency petition alleged that Ruby suffered a broken nose as a result of being hit in the face, that the father failed to seek medical care for the broken nose, and that in the past, the father disciplined Ruby by hitting her with a paddle. The petition was sustained and services were ordered for the father.

As of the six-month review, Ruby did not want to live with her father or visit with him, except on holidays or special occasions. Ruby stated that her father put her down, found reasons to fight with her and walked out of many of the visits. Conjoint therapy sessions ended when the father called Ruby a liar. At the review hearing, further services were ordered.

At the 12-month review, SSA recommended terminating reunification services. The father’s progress on the reunification plan was poor. Although he attended counseling, his therapist opined his prognosis was “very guarded” due to his defensiveness and insecurity. The father continued to deny that he hit Ruby. Visits were also problematic; Ruby asked that visits be terminated, and her therapist reported an increase in anxiety and anger when talking about her father. The therapist deemed the visits detrimental to Ruby due to the emotional distress they caused. She also had behavioral problems in her placement. Ruby and the father had several phone calls, but they did not go especially well. At the 12-month review hearing, the parties stipulated to terminating services and selecting long-term foster care as Ruby’s permanent plan.

The first periodic review was held in July 2004. Ruby’s foster parents planned to move to Texas, and they wanted to become Ruby’s legal guardians and have Ruby move with them. Ruby agreed. Ruby was not without problems - she had difficulty dealing with authority and her grades were poor. The foster family was using a variety of methods to assist Ruby, including therapy, a tutor and a behavioral coach.

Ruby wanted to meet with the father to discuss the move to Texas, but resisted other visits. Her therapist continued to believe visits would be detrimental. The father had only called Ruby twice within the past six months. At the hearing, the father’s counsel submitted on the reports. The court adopted SSA’s recommendation to set a Welfare and Institutions Code section 366.26^[1] hearing and explore the recommendation of legal guardianship, and the court authorized Ruby’s move to Texas with her foster family.

In preparation for the January 2005 section 366.26 hearing, SSA recommended that the court appoint Ruby’s foster parents as her legal guardians. Ruby’s transition to her new home in Texas had gone well. She had attained a B average in school. Ruby wrote that her foster family were “the only family that I’ve been with since Orangewood and I really care a lot about them . . . .” Ruby’s only contact with the father was a phone call in October 2004, which was reportedly pleasant. At the hearing, the parties stipulated to SSA’s recommendations. The court issued letters of guardianship to the foster mother. With the father present, his attorney, Charles Bergstrom, told the court: “[The father] is conceding. Although he doesn’t like it, he’s agreeing.”

Another periodic review was held in July 2005. SSA reported that Ruby was behind on her credits and might not graduate by her 18th birthday in September 2006. SSA recommended that the dependency case continue to ensure Ruby’s graduation from high school. During a trip to California, Ruby visited with the father. After the visit, she told the social worker she would not visit the father again because he inappropriately touched her on her “behind.” The father submitted on SSA’s reports, and the court set another periodic review.

For the next periodic review in January 2006, SSA reported that Ruby was doing well in school. She made the honor roll and had been holding down a part-time job. Ruby had some behavior problems, however, and her guardian had requested a psychiatric evaluation. According to Ruby’s guardian, Ruby had spoken to the father on the telephone “a couple of times” in the past six months. SSA recommended that the court continue Ruby as a dependent and adopt the case plan.

At the January 9 hearing, the court accepted the parties’ stipulation, which stated, among other things, that the “services provided to the minor are adequate, and that there has been substantial compliance with the permanent plan and with the service plan.” The court set further hearings. After the court stated its findings and orders, the father addressed the court. He complained about past hearings that had been rescheduled and that he had not had telephone calls with Ruby. He demanded that the previous social worker be investigated, and he wanted the court to hear from his brother. The father believed he did not have current information about Ruby. He then lodged some complaints against his attorney, asking whether “there [is] any way he can get him dismissed and get me another attorney?” The court listened patiently and then encouraged the father to work cooperatively with his attorney. If the father continued to have difficulties, he should bring it to the court’s attention. The father agreed.

The father filed a notice of appeal from the January 9, 2006 orders.

II

DISCUSSION

Hearing re Adequacy of Counsel

The father first claims that the court erred by not conducting a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). In criminal cases, if the defendant requests new counsel, the court must permit the defendant to explain the reason for the request. (Id. at p. 118.) In dependency proceedings, the law differs from criminal cases. Parents have a statutory and due process right to competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150-51, fn. 3.) When a parent asks for new counsel, courts typically rely on the Marsden model, but the court is not required to conduct an exhaustive, in camera hearing. It is only necessary that the court “the trial 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.)

Thus, we reject out of hand the father’s assertion that the court’s “denial of the right to have a Marsden hearing itself denied the father the right to a fair trial.“ The father relies on generalizations and overbroad statements about the right to counsel, but does not cite a single juvenile case stating that any inquiry about the possibility of new counsel triggers a right to a Marsden hearing.

Further, the father does not argue that he was not competently represented or that the trial court should have appointed new counsel for him, only that the court failed to conduct the appropriate hearing. We disagree. The court gave the father the opportunity to air his complaints and listened when the father inquired into the possibility

of a new attorney. The father told the court that counsel had failed to raise different issues relating to both children and that in seven court dates in the past year “nothing got said when something went wrong.” The court instructed the father to try to work things out, and to come into court again if he could not resolve the attorney-client relationship. The court told the father that if it got to a point “where you have a breakdown . . . you can make a motion to request that [counsel] be relieved and that the court appoint you different counsel.” The father agreed.

In the Marsden context, the critical requirement is for the court to elicit enough information and specific instances of misconduct alleged to determine whether substitute counsel is warranted. (People v. Panah (2005) 35 Cal.4th 395, 427-433.) The court need not grant the request unless the record clearly demonstrates that either counsel is not providing adequate representation, or that counsel and the defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. The father’s complaints did not demonstrate either factor, and the court specifically told the father that he could return to court and request new counsel if the father and his attorney could not work matters out.

We find that the court met the basic tenets of Marsden and that nothing more of import was likely to be revealed even if the hearing had been held in camera. There was no indication that the father was restraining his statements because of the presence of the other parties or counsel. He had an opportunity to specify his complaints, which did not reveal a lack of adequate representation or irreconcilable conflicts. Moreover, he abandoned any unstated complaints by agreeing to attempt to resolve his differences with his current attorney and bring up further complaints at a later date. (People v. Vera (2004) 122 Cal.App.4th 970, 981-982.)

Sufficiency of Services

The father next argues that the trial court’s finding that Ruby received adequate services was incorrect because he and Ruby were not conducting telephone calls twice a month. His opening brief references adequate services to Ruby, yet his reply brief refers to services to him. Moreover, the father does not provide a reference to the purported court order stating he was entitled to such calls. His only reference is to a comment by the court at the January 2006 hearing stating that Ruby should make time to return “at least one phone call” to her father. This is not an order, nor does it reflect any prior order in effect at the time which would be relevant to whether Ruby received adequate services.

The father’s three-paragraph argument on this point is entirely conclusory, not supported by references to the record, and inaccurately cites a statute not pertinent to this case, as it applies only to children who are not placed in the home of their legal guardian. (§ 366.3, subd. (d).) Because the father’s argument is not supported by either facts or legal authority, we deem it waived. (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

III

DISPOSITION

The court’s orders are affirmed.

MOORE, J.

WE CONCUR:

O’LEARY, ACTING P. J.

IKOLA, J.

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^[1] Subsequent statutory references are to the Welfare and Institutions Code.