In re L.A. CA1/1 ( 2022 )

Filed 7/27/22 In re L.A. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re L.A., A Person Coming Under
the Juvenile Court Law.
SAN FRANCISCO HUMAN
SERVICES AGENCY, A163685
Plaintiff and Respondent, (San Francisco City & County
v. Super. Ct. No. JD20-3273)
C.C.,
Defendant and Appellant.
In this dependency proceeding, C.C. (mother) appeals from the juvenile
court’s denial of a Marsden1 motion and its refusal to allow her to represent
herself. Specifically, mother argues that the juvenile court abused its
discretion in denying her Marsden motion because a complete breakdown in
communication between mother and her appointed counsel prevented an
adequate defense. Mother also claims that remand is necessary because the
court failed to rule on her request to represent herself and the record makes
clear that a denial of her request would have been an abuse of discretion.
Seeing no reversible error, we affirm.
1 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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I. BACKGROUND
A. Proceedings Through Disposition
In October 2020, the San Francisco Human Services Agency (Agency)
received a report that both mother and baby L.A. had tested positive for
methamphetamine. L.A. was born prematurely at 35 weeks and was in the
neonatal intensive care unit (NICU) suffering from low birth weight, low
blood sugar, and feeding issues which required ongoing medical care and
observation. Both mother and T.A. (father) denied mother used drugs.
According to mother, she stopped using in February when she learned she
was pregnant. Mother would not allow the social worker to disclose the
positive drug tests to the maternal grandmother, so the Agency was unable to
explore safety planning with the family. Mother theorized that someone
might have slipped some methamphetamine into her water.
Mother’s older child, N.B., had been placed in a guardianship in
January 2019 after mother failed to reunify with her. According to the court
report in N.B.’s dependency, mother had a long history of polysubstance
abuse, mental health issues, and problems with domestic violence. Her case
plan included participation in a substance abuse assessment, drug testing,
individual therapy, a psychological evaluation, and visitation. However,
although mother regularly and appropriately visited N.B., she never
completed her substance abuse assessment and failed to participate in the
other elements of her case plan. Mother later told L.A.’s social worker that
she had done “everything” that the Agency asked of her during N.B.’s
dependency, but her daughter ended up in guardianship because she was not
properly represented in court.
On November 5, 2020, the Agency filed a dependency petition with
respect to L.A., alleging that the minor came within the provisions of
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Welfare and Institutions Code2 section 300, subdivisions (b) and (j) due to
mother’s issues with substance abuse, domestic violence, and mental
health as well as her failure to reunify with N.B. In addition, it was alleged
that father minimized mother’s substance abuse problems and had his own
substance abuse issues which required assessment. L.A. was formally
detained at the detention hearing on November 6, 2020.
Although the Agency could have recommended bypassing reunification
services for mother pursuant to section 361.5, subdivision (10), based on her
failure to reunify with N.B., it recommended services for both parents
because mother was no longer homeless, had a support system, and stated
she was in a “different place” than she was during the prior dependency. A
contested jurisdictional and dispositional hearing was held on January 4,
2021. At the conclusion of the hearing, the court found the allegations in a
first amended petition true and found L.A. to be a person described by
subdivisions (b) and (j) of section 300. The court declared L.A. a juvenile
court dependent, removed her from parental custody, and ordered
reunification services for both parents. No appeal was taken from this order.
B. Post-Dispositional and Marsden Matters
In March 2021, the Agency filed a petition pursuant to section 388
seeking modification of the dispositional orders to require mother to engage
in outpatient drug treatment and follow all recommendations. Mother
completed a substance abuse assessment, but the assessor did not have
“ ‘enough data’ ” to refer mother to treatment. Mother had not completed all
of her scheduled drug tests and tested positive for alcohol in January 2021.
In addition, in December 2020, the Ukiah police were called to a hotel due to
2All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
3
a possible domestic disturbance.3 When the police entered the parents’ room,
they found methamphetamine on father and drug paraphernalia in the room.
Father told the police officer that he “ ‘smoked crystal.’ ” The court granted
the petition on April 8, 2021.
The Agency filed a report in advance of the June 2021 six-month
review. The Agency had suspended in-person visitation when it learned of
the December 2020 police interaction until the parents met with the social
worker. Since the parents failed to meet with the social worker until
February 2021 and then refused to sign the Agency’s COVID-19 waiver, the
parents missed visitation for 10 of the first 20 weeks of L.A.’s life. The social
worker had been unable to meet with the parents during the reporting
period. The Agency had been arranging a hotel to facilitate visitation with
L.A., but the parents had been “kicked out” of three separate hotels. Mother
was engaged in individual therapy but had not completed a drug test between
February 26 and April 6, 2021. The Agency was recommending termination
of services and referral to a permanency planning hearing so that a
permanent out-of-home placement could be established for L.A. The six-
month review recommendations were contested, and the matter was
continued to September 10, 2021.
On September 10, 2021, the court granted a motion to continue the
contested six-month review hearing to October 29, 2021. In addition,
attorney Peter Furst appeared on behalf of mother’s counsel, Ms. Pendergast,
and requested that a Marsden hearing be set, given that mother had
“repeatedly sent a barrage of e-mails” to Ms. Pendergast telling her that she
was “fired” and seemed to believe that Ms. Pendergast was “not doing her
3 Reportedly, a hotel employee heard a male say: “ ‘[Y]ou will get in
that tent[,] or I will kill you.’ ”
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job.” Counsel for father asked that a Marsden hearing also be scheduled for
father. The court scheduled both hearings for September 17, 2021. Later
that day, mother appeared before the court, confirming that she was asking
the court “to change her lawyer.” The court advised mother that it had set a
hearing on September 17 for her to talk to the judge about her request to
change lawyers. However, Mr. Furst advised the court that mother sent an
email to him stating that “only people who are incompetent are assigned
counsel, and she doesn’t feel that she is incompetent, and therefore, that is
why she doesn’t want an attorney.”
At the closed hearing on September 17, the juvenile court began by
addressing mother that the hearing was a Marsden motion, and that “[y]ou
are asking for the court to replace Ms. Pendergast. Can you give me your
reasons why?” Mother began by stating: “So can I please say that I actually
—it is a contract that I have. It is a legal binding contract with CPS. They
have been served an affidavit. That has been served to them, and pretty
much I can’t answer any more questions or speak about anything else
because there is a contract outside of the court.” The juvenile court asked her
if she wanted to replace her attorney, and she responded that she wanted to
replace her attorney by being “sui juris” but not pro per. When the court
expressed confusion, mother explained: “It means that, you know, like, there
is an attorney—attorneys cannot represent a man or a woman. They can
only represent a child or somebody that is incompetent or a corporation or an
entity. I am not a corporation or an entity, and I don’t agree to your guy’s
contract. [¶] And I am not—and I don’t understand the contract.
Mother reiterated that she did not want a new attorney, she wanted to
be sui juris. When the court stated it didn’t know what she meant, mother
suggested “maybe you should look it up or something.” After more
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unsuccessful attempts at clarification, Ms. Pendergast stated that, since sui
juris is Latin for “ ‘in one’s own right,’ ” she suspected mother wanted to
represent herself. Mother replied: “Yes, but I don’t want to be represented
as a corporation or an entity or as a persona. I want to be representing as an
individual, as a woman, as a woman that I am.” The court responded:
“[W]hat seems to be the case is that you want to represent yourself, but I
don’t think you have the understanding of what the legal implications are
here in this . . . .” Mother interrupted, reiterating that she wanted to
represent herself and stating that she had already served a legally binding
contract on the Agency, and she planned on taking them to arbitration and to
the Supreme Court if she had to.
The court continued that, at that point, it could not make a
determination that Ms. Pendergast had “failed in any way in regards to this
case.” Mother argued that Ms. Pendergast had not helped her or contacted
her “the whole time” except for “a couple of days before court,” and that she
was on vacation, so mother asked her partner to help her challenge
jurisdiction and he told her they had to go through this hearing first. Mother
also complained that counsel had disclosed confidential tactical information
in court. Ms. Pendergast explained that mother wanted to challenge the
jurisdiction of the juvenile court and have the matter transferred to federal
court, but she felt it was inappropriate to give mother advice while her
request for a new attorney was pending. The court told mother that the
California superior court had exclusive jurisdiction in this matter and mother
countered: “Well, once I challenge jurisdiction, then it has to go before a jury;
otherwise, it has to be dismissed or null or void, you know what I’m saying?”
Mother claimed to have all the paperwork ready to submit and stated she
would give out copies to everyone.
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The court urged mother to submit the paperwork with respect to both
her jurisdictional challenge and her “contract” with the Agency. The court
concluded mother was not making a Marsden motion so it would not sever
her relationship with her attorney. It denied her request for sui juris, and
mother strongly objected. The following colloquy occurred:
“[MOTHER]: I am not requesting. I am demanding that I get my
rights. That is my right as a US national to have representation for my own
self. I don’t want an attorney. I want to represent myself.
“THE COURT: In order for the Court to grant you the right to
represent yourself the Court has to be satisfied that you are able—you have
to realize that you have to be —when you represent yourself you have to
conduct yourself—
“[MOTHER]: I am not incompetent.
“THE COURT: I am not saying you are. Let me explain to you. Will
you please just listen. You have to be able to act in the manner of an
attorney and comply with the laws the way an attorney would have to comply
with the laws and—
“[MOTHER]: So do you.
“THE COURT: That is what I am doing.
“[MOTHER]: And so do you.
“THE COURT: That is why I am explaining it to you. All right.
“[MOTHER]: No. You just denied my request. You can’t deny my
rights. You cannot deny my rights.”
Concluding that it was “not getting anywhere,” the court continued the
matter to October 15, 2021, for mother to present the paperwork she had
discussed and to make a decision on her self-representation. While the court
was continuing the matter, it referred to mother as Ms. C. Mother objected,
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stating: “You are using a title that I am not. I am not under the title of ‘Ms.’
I am not under your guy’s contract. I do not want to be part of your contract.
I don’t understand your contract. Please do not address me as ‘Ms.’ My
name is [C.C.]” Mother then asked for clarification as to whether she could
ask her attorney any information, and the court explained it had not relieved
Ms. Pendergast, and she was available if mother wanted to speak with her.
The hearing continued on October 15, 2021. Mother again stated that
she did not want an attorney because she wanted to be sui juris and
represent herself. The court again tried to explain that if mother represented
herself, she would have to comply with all the “rules and regulations” of an
attorney. When asked if she understood, mother replied: “That is not how it
goes. I am going to be—I will be as a natural woman . . . .” The juvenile
court tried to clarify: “[T]he Court has an obligation if you are going to
represent yourself as a natural woman that I would then be relieving Ms.
Pendergast as your attorney. You would then have to conduct the
proceedings, the court proceedings here, in the same manner as an attorney
would, and you would be held to the same standard, and the question is
whether then you would be able to do that.” After mother responded that she
did not want to try to be an attorney, she just wanted to be “a natural person
to think for herself,” the court declined to relieve Ms. Pendergast. However,
it stated it was doing so under Marsden, that a request from mother to
represent herself would be under “different criteria of decision,” and that it
was “not sure” that mother was able to represent herself. The court then
continued the contested six-month review to November 15, 2021. This timely
appeal followed.
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II. DISCUSSION
A. Denial of Mother’s Marsden Motion
Mother claims on appeal that the juvenile court erred in denying her
Marsden motion. “In a criminal case, when a defendant requests substitute
appointed counsel, the trial court must permit the defendant to explain the
specific reasons why the defendant believes current appointed counsel is not
adequately representing [him or her].” (In re V.V. (2010) 188 Cal.App.4th
392, 398, citing 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.”
(V.V., at p. 398, citing § 317.5 and In re James S. (1991) 227 Cal.App.3d 930,
935, fn. 13; see also In re Z.N. (2009) 181 Cal.App.4th 282, 289 (Z.N.)
[Marsden principles apply by analogy to dependency proceedings].)
However, a client’s claims of a lack of trust, an inability to get along
with a lawyer, or tactical disagreements are insufficient to prevail on a
motion to discharge appointed counsel. (In re M.P. (2013) 217 Cal.App.4th
441, 458 (M.P.); see also In re Samuel A. (2021) 69 Cal.App.5th 67, 84, fn. 11
[“ ‘ “[I]f a defendant’s claimed lack of trust in, or inability to get along with,
an appointed attorney were sufficient to compel appointment of substitute
counsel, defendants effectively would have a veto power over any
appointment and by a process of elimination could obtain appointment of
their preferred attorneys, which is certainly not the law” ’ ”].) Rather, a
defendant is entitled to relief only if “the record clearly shows that the
appointed counsel is not providing adequate representation or that defendant
and counsel have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result. Substitution of counsel lies
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within the court’s discretion. The court does not abuse its discretion in
denying the motion unless the defendant has shown that a failure to replace
counsel would substantially impair the defendant’s right to assistance of
counsel.” (People v. Carter (2010) 182 Cal.App.4th 522, 527c, quoting People
v. Smith (2003) 30 Cal.4th 581, 604; accord, Z.N., supra, 181 Cal.App.4th at
p. 294.)
In their briefing, the parties disagree about whether mother and her
attorney had become so “embroiled in such an irreconcilable conflict,” that
counsel could not fulfill her duties. (See Z.N., supra, 181 Cal.App.4th at p.
294.)4 But a more fundamental problem exists. As our detailed recitation of
the facts makes clear, ultimately, mother was not seeking substitute counsel,
she wanted to represent herself. Under such circumstances, despite the
terminology used by counsel and mother’s initial statement that she wanted
to change her lawyer, the juvenile court was not confronted with a Marsden
motion but rather by mother’s request to represent herself. (“I don’t want a
new attorney, I want to be sui juris.”)
We discuss mother’s desire to represent herself below. As for Marsden,
even were we to apply that framework, there was no evidence that counsel’s
representation was inadequate. While given every opportunity to air her
grievances, mother’s only complaints were that Ms. Pendergast had failed to
contact her except in the few days before court, that she went on vacation,
4 In addition to the justification for the request, reviewing courts
generally assess the timeliness of the request and the adequacy of the trial
court’s inquiry into the request. (See, e.g., Z.N., supra, 181 Cal.App.4th at p.
294.) Here, the parties do not dispute that mother’s request was timely, and
mother does not contend the juvenile court failed to adequately inquire into
her reasons for requesting substitution of counsel. We therefore need not
address these factors.
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that her office thought it was improper to discuss transferring this juvenile
matter to federal court while the Marsden motion was pending, and that
mother’s confidential plan to challenge the juvenile court’s jurisdiction was
disclosed during the closed hearing. The court concluded it could not make a
determination that Ms. Pendergast had “failed in any way in regards to this
case,” and we agree. (See M.P., supra, 217 Cal.App.4th at p. 458 [claims of a
lack of trust, an inability to get along with a lawyer, or tactical disagreements
are insufficient to prevail on a motion to discharge appointed counsel].)
Indeed, it is evident that the relationship with mother and Ms. Pendergast
was not irreconcilable, as mother expressly asked if she could resume seeking
information from Ms. Pendergast after the September hearing, and the court
clarified that mother was free to speak with her appointed counsel. In short,
if viewed through a Marsden lens, the court did not abuse its discretion.
B. Refusal to Allow Mother to Represent Herself
Mother next contends that the juvenile court improperly failed to rule
on her request to represent herself. She asserts that remand for further
proceedings on the issue is required because, had the court directly addressed
her request, it would have been error to deny it. Specifically, mother sees no
basis in the record to deny her request because “she was not overly
disruptive, did not unduly delay the proceedings, and could advocate
competently on her own behalf.” While we agree that, on this record, the
court should have resolved mother’s self-representation request, we disagree
that remand is necessary. Rather, we find any error in the proceedings below
harmless.
Section 317, subdivision (b) requires appointment of counsel for an
indigent parent or guardian in a juvenile dependency case “unless the court
finds that the parent or guardian has made a knowing and intelligent waiver
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of counsel as provided in this section.” A waiver of counsel is valid if the
juvenile court has apprised the parent of the dangers and disadvantages of
self-representation and the risks and complexities of his or her particular
case. (In re Brian R. (1991) 2 Cal.App.4th 904, 921; accord In re A.M. (2008)
164 Cal.App.4th 914, 923 (A.M.).) “Section 317, subdivision (b) has been
interpreted to give a parent in a juvenile dependency case a statutory right to
self-representation.” (A.M., at p. 923, citing In re Angel W. (2001) 93
Cal.App.4th 1074, 1083 (Angel W.).) Thus, the juvenile court “must respect
the right of the parent to represent him- or herself as a matter of individual
autonomy and avoid forcing the mentally competent parent to proceed with
appointed counsel in the guise of protecting a person who is unskilled in the
law and courtroom procedure.” (Angel W., at p. 1084.)
However, it bears repeating that the right to self-representation in
juvenile dependency proceedings is statutory only. “A parent in a juvenile
dependency case does not have a constitutional right to self-representation.”
(A.M., supra, 164 Cal.App.4th at p. 923; Angel W., supra, 93 Cal.App.4th at p.
1082.) Thus, there is no requirement for the juvenile court to “engage in a
full Faretta-type admonition and inquiry” before ruling on a parent’s request
to discharge appointed counsel and proceed in propria persona. (Angel W., at
p. 1084, referring to Faretta v. California (1975) 422 U.S. 806.) Moreover, “in
dependency proceedings, a parent’s statutory rights, including the right to
self-representation, must always be weighed against the child’s right to a
prompt resolution of the dependency proceeding. The juvenile court must
consider this right in deciding whether to accept a parent’s waiver of counsel
and request for self-representation. Thus, the juvenile court has discretion to
deny the request for self-representation when it is reasonably probable that
granting the request would impair the child’s right to a prompt resolution of
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custody status or unduly disrupt the proceedings. A parent’s disruptive
behavior may be sufficient to deny a request for self-representation, but it is
not necessary. If it is reasonably probable that granting a parent’s request
for self-representation will lead to undue delay in the proceedings that would
impair the child’s right to a prompt resolution of custody, the juvenile court
has discretion to deny the request regardless of whether the parent has ever
behaved disruptively.” (A.M., at pp. 925–926.)
Here, although mother used the terminology “sui juris,” she repeatedly
stated that she was requesting to represent herself. Indeed, the court
recognized as much, concluding at the September 2021 hearing that mother
was not making a Marsden motion so it would not sever her relationship with
her attorney. Further, the court several times began explaining to mother
what would be required of her should it relieve Ms. Pendergast and allow
mother to represent herself “as a natural woman”—in effect, trying to
determine whether mother could appropriately represent herself—but
mother repeatedly interrupted or disagreed with the court. In the end, the
court denied the Marsden motion and continued the hearing to October 2021
for mother to file her papers and “for some understanding, and. . . to explain
to you at that time if you want to represent yourself, then we will make that
determination then. At this point I need to see those papers.”
At the October 15 hearing, mother’s attorney stated the case was
continued from September based on the fact that [mother] wasn’t articulating
her reason for the [Marsden] “so that’s why it is on today.” The court asked
mother “are you asking to replace your attorney” and mother responded:
“Yes.” Mother added: “Yes. I want to be sui juris. I don’t want an attorney.
I do not want any attorney”. The juvenile court again attempted to explain
that she would have to “function as an attorney” and “would be expected to
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comply with all the rules and regulations of an attorney and to conduct
yourself as an attorney.” However, mother responded “That is not how that
goes. I am going to be—I will be as a natural woman and natural man. That
is how that is. A natural woman really because I am not a man, so natural
woman.” Ultimately, the juvenile court expressly denied mother’s motion
under Marsden, noted that a self-representation request would involve
“different criteria of decision,” and stated that it was “not sure” that mother
was able to represent herself. Perhaps the juvenile court thought mother
and/or her attorney would re-raise mother’s self-representation in open court.
However, that did not happen, and neither the court nor mother mentioned
the issue further. Instead, the juvenile court continued the case for father’s
Marsden motion and set trial on November 15, 2021 for the contested six-
month review hearing. We conclude that, on this record, mother’s self-
representation request was before the juvenile court, and it was error for the
court not to address and resolve it.
In determining whether this error requires reversal, we apply the
harmless error standard set forth in People v. Watson (1956) 46 Cal.2d 818,
836 to the juvenile court’s decision to, in effect, deny mother’s request to
represent herself. (A.M., supra, 164 Cal.App.4th at p. 928.; Angel W., supra,
93 Cal.App.4th at p. 1085.) Under that standard, we ascertain whether it
appears reasonably probable mother would have obtained a more favorable
result if the juvenile court had directly addressed and resolved her request
for self-representation. We conclude that it does not.
Rather, had the court actually resolved the matter, we find it highly
likely it would have denied mother’s request. The court, itself, indicated it
was “not sure” that mother was able to represent herself. Based upon the
record before us, we conclude that it is not reasonably probable the court
14
would have allowed mother to represent herself, both because it would likely
have caused undue disruption of the proceedings and because it would likely
lead to undue delay that would impair L.A.’s right to a prompt resolution of
custody.
Indeed, it was difficult for mother to proceed even in the short, closed
hearings in a coherent fashion or to respond to the court’s questions. When
the court repeatedly asked her to explain what she meant by “sui juris,” she
stated that attorneys cannot represent a man or a woman, they can only
represent a child or somebody that is incompetent or a corporation or entity.
Mother repeatedly stated she did not want to be represented as a corporation
or an entity or as persona or an incompetent person. Mother’s conduct was
disruptive in the sense that her statements to the court were circular and
repetitive, failed to respond to the court’s questions and indicated her
misunderstanding and misapplication of legal principles, which made it
difficult to proceed through even a straightforward hearing.
It is also evident that allowing mother to represent herself would lead
to undue delay in the proceedings that would impair the child’s right to a
prompt resolution of custody. Mother stated that once she “challenge[d]
jurisdiction, then it has to go before a jury.” Despite the court’s explanation
that the superior court had exclusive jurisdiction, mother continued to raise
her jurisdictional issues. Further, although mother stated she had
paperwork to submit to the court, alluding to a contract, and the court
continued the hearing for a month so that mother could provide it with that
paperwork, there is no indication that she ever did so. (Compare Angel W.,
supra, 93 Cal.App.4th at p. 1085 [describing the mother seeking self-
representation as “respectful and cooperative”].)
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In addition, the contested six-month review—at which the Agency was
recommending termination of reunification services and referral of L.A. for
permanency planning—was only a month away. And the November 2021
date was already only 6 weeks from the 12-month mark in the case, even
though only six months of reunification services are generally authorized for
young children like L.A. (§ 361.5, subd. (a)(1)(B).) Under all of these
circumstances, it is reasonably probable that granting mother’s request for
self-representation would have led to undue delay in the proceedings,
impairing L.A.’s right to a prompt resolution of custody. (See A.M., supra,
164 Cal.App.4th at pp. 925–926; compare id. at pp. 927–928 [ample evidence
that the father requesting self-representation would cause significant delay
where the father resisted compliance with court orders, made lengthy
statements that frequently digressed into irrelevant matters, and believed he
would need a year to prepare the case].) We therefore find any error by the
juvenile court in failing to resolve mother’s request for self-representation
harmless.
III. DISPOSITION
The judgment is affirmed.
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WISS, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A163685

Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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