In re C.R.

Filed 8/13/09 In re C.R. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)

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T. H., father of the minor, appeals from the juvenile courts reconsideration of his Marsden motion and reappointment of the attorney previously relieved for a conflict of interest.[1] Appellant contends the court acted in excess of its jurisdiction in considering and granting the motion for reconsideration; the mother, who brought the motion, lacked standing to do so; and reappointment of his prior attorney deprived him of effective assistance of counsel. However, developments following the perfection of the appeal have rendered the case moot. Accordingly, we shall dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The 14-year-old minor was removed from parental custody in 2006 because of appellants sexual abuse of the minor and the minors resultant severe emotional distress. The court denied reunification services and the minor was placed in long-term foster care.

In June 2007 appellant filed a Marsden motion to relieve appointed counsel who appellant believed was not vigorously representing him. Appellant also filed a complaint with the California State Bar regarding his representation. Counsel declared a conflict and was relieved at the hearing on the Marsden motion.

Two weeks later, new counsel was appointed for appellant. Counsel appeared for appellant at a status review hearing, and the court ordered the parties to confer on specific guidelines for appellants letter contact with the minor, which was one of appellants ongoing concerns. According to a progress report, appellants letters were not being forwarded to the minor because they typically contained material that reinforced the minors belief that the inappropriate relationship with appellant was the minors fault, not appellants, and because they were viewed as grooming the minor for further abuse. The report stated the social worker and the minors therapist concurred that further contact with appellant was detrimental at that time.

Appellant filed another Marsden motion to have his second attorney relieved. The motion was denied. The next day, the court received from appellant another Marsden motion, which was set for hearing. Counsel filed a motion to be relieved as counsel, which was granted. A third attorney was assigned to appellant. At counsels request, appellants prior Marsden motions were dropped. However, perceiving that his third attorney was also unsatisfactory, appellant informed the court he wanted another Marsden hearing. Prior to the matter being heard, appellant filed a Faretta motion seeking to represent himself.[2]

At the hearing on appellants Marsden motion, appellant continued to insist on guidelines for his letters to the minor and made it clear he did not want to represent himself. He said that none of his attorneys had brought up issues he believed were relevant to the proceedings and did not communicate with him in a timely fashion. Appellants counsel informed the court that both prior attorneys were relieved after appellant filed lawsuits and California State Bar complaints against them and that appellant had filed a State Bar complaint against her as well, creating a conflict of interest. The court expressed concern whether appellant was even entitled to counsel for review of the minors placement in long-term foster care and whether there were any conflict counsel left to appoint. However, based on the State Bar complaint filed against current counsel, the court granted the Marsden motion and again referred appellant to the Law Office of Dale Wilson for selection of new counsel, in part to determine whether there was anyone who was available for appointment.

Shortly thereafter, the mothers counsel filed a motion for reconsideration of the courts order granting appellants Marsden motion. Attached to the motion was a declaration of Dale Wilson, director of court-appointed services, who was responsible for appointment of conflict attorneys in dependency cases. Mr. Wilsons declaration reviewed the history of appointment of appellants attorneys, including appellants practice of filing lawsuits and/or complaints with the California State Bar when appellant felt he was not being represented appropriately and simply [became] angry with his court-appointed counsel. Mr. Wilsons declaration stated there were no other attorneys available or willing to represent appellant under the circumstances and that it was futile to attempt to appoint new counsel for appellant. Mr. Wilson requested the court reconsider its most recent Marsden order and reappoint the prior attorney.

At the hearing on reconsideration, appellant objected to proceeding without counsel, to the mothers standing to bring the motion, and to reappointment of an attorney who had already been relieved. Recently relieved counsel was present and stated she believed a conflict of interest still existed. The court disagreed, noting that appellant had taken affirmative action to have each attorney relieved and was manipulating the system. On learning the court intended to reappoint his former counsel, appellant, who was in custody and present by telephone, hung up, his method of interposing an objection to the proposed action. The court found appellant had manipulated the system and had achieved dismissal of counsel by filing complaints against counsel with the California State Bar. The court concluded it previously had not been fully apprised of the facts, granted reconsideration, and reappointed prior counsel.

The present appeal followed.

DISCUSSION

Appellant submitted extensive briefing on the question of whether the court acted in excess of its jurisdiction in considering and granting the motion for reconsideration. However, at oral argument, respondents counsel advised the court that on February 19, 2009, subsequent to the filing of the notice of appeal, the court once again considered the question of appellants representation, granted the previously reappointed counsels request to be relieved, and appointed different counsel.[3] Thus, the counsel whose appointment is challenged in the present appeal no longer serves as counsel for appellant. The relief appellant seeks by his appeal has already been effectively granted. In view of this development, we requested the parties to submit letter briefs addressing the issue of mootness. Respondent urges us to dismiss the appeal as moot. Appellant agrees the case is moot but urges us to decide the appeal anyway.

A case is moot when the decision of the reviewing court can have no practical impact or provide the parties effectual relief. [Citation.] (WoodwardPark Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888 [].) When no effective relief can be granted, an appeal is moot and will be dismissed. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316 [], citing Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [].) (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214.) Courts should decide actual controversies and not . . . give opinions upon moot questions or abstract propositions, or . . . declare principles or rules of law which cannot affect the matter in issue in the case before it. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 862-863.)

Appellant has obtained his desired outcome. A decision on this appeal will have no practical effect on the parties before us. We acknowledge that If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot. [Citations.] (Liberty Mut. Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715-716.) Appellant urges us to exercise our discretion and decide the appeal. Nothing in the record suggests the present controversy will recur in this case. Abstractly, the authority of a court to appoint previously relieved counsel may be a matter of continuing public interest. However, the resolution of such issues will inevitably turn on the facts of the particular case. We are not disposed to use the present case as a template for the resolution of future disputes. Accordingly, we shall dispose of the appeal without reaching the merits.

DISPOSITION

The appeal is dismissed.

RAYE , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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

[2]Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).

[3] We thereafter took judicial notice of the order, a copy of which was provided by appellants counsel.