In re C.R. CA2/6 ( 2013 )

Filed 11/6/13 In re C.R. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re C.R. & M.A., Persons Coming Under 2d Juv. No. B247705
the Juvenile Court Law. (Super. Ct. No. J1395601, J1395602)
(Santa Barbara County)
SANTA BARBARA COUNTY CHILD
PROTECTIVE SERVICES,
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
A.W. appeals from two orders denying her motions to replace
assigned counsel. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2011, A.W.'s two children were removed due to neglect.
A.W. did not comply with a court ordered family reunification plan and the
juvenile court terminated her services. We dismissed her appeal from that order as
abandoned. (Santa Barbara County Child Welfare Services v. A.W., case No.
B242340.) The juvenile court ordered no further visitation pending a hearing to
terminate parental rights. (Welf. & Inst. Code, § 366.26.)1 We affirmed that order
on appeal. (Santa Barbara County Child Welfare Services v. A.W., May 13, 2013,
Case No. B245355 [nonpub. opn.].) We granted A.W.'s request to incorporate by
reference the records on appeal in case numbers B245355 and B242340. We
incorporate here our recitation of the facts from our opinion in case number
B245355.
At the 366.26 hearing initially set for February 7, 2013, A.W. asked
the juvenile court to replace her assigned counsel. The court conducted a closed
hearing and denied the request. It did not advise her on the record of her right to
appeal.
A.W. asked the juvenile court to continue the 366.26 hearing to
allow her to retain private counsel. The court granted the request. It ordered her
to submit a written offer of proof by March 7, 2013. A.W. did not retain private
counsel.
On March 14, 2013, A.W. appeared with assigned counsel. He had
not filed a written offer of proof on her behalf. He said that he and A.W. had met
and he had advised her that they could "not satisfy the visitation prong, both for an
offer of proof and for a J.V. 180." A.W. again asked the court to replace her
counsel. The juvenile court conducted a closed hearing and denied A.W.'s request.
The juvenile court proceeded with the 366.26 hearing. A.W.'s
counsel did not present any evidence, but asked the court to continue the matter
because A.W.'s appeal from the order terminating visitation was still pending. The
court denied the request. A.W. read into the record a letter from a representative
of the National Association for the Advancement of Colored People (NAACP)
regarding shortcomings with her reunification plan. The NAACP recommended
1
All statutory references are to the Welfare and Institutions Code.
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that the court consider placing the children with A.W.'s aunt. The court
responded, "None of that is before me." The court found clear and convincing
evidence that the children would be adopted, and it terminated A.W.'s parental
rights. It advised her of her right to appeal. Within 60 days of March 14, A.W.
filed a notice of appeal from "Termination of parental rights - March 14, 2013."
DISCUSSION
A.W. did not file a notice of appeal from the February 7 order within
60 days. (Cal. Rules of Court, rule 8.406(a)(1).) The February 7 order was
appealable, and separate from the March 14 order terminating her parental rights.
(§ 395, subd. (a)(1); see In re Melvin A. (2000) 82 Cal.App.4th 1243, 1251 [order
denying request to be relieved as counsel was separate from stayed order
terminating parental rights so that time for appeal from order denying request was
not stayed].)
A.W. filed a notice of appeal within 60 days of March 14, but she
did not identify the order denying her request to replace counsel as the order being
appealed. Her notice identified only the "Termination of parental rights - March
14, 2013." A notice of appeal must identify "'the particular judgment or order
being appealed.'" (In re Joshua S. (2007) 41 Cal.4th 261, 272.)
We recognize that A.W. was not advised on the record of her right to
appeal from the February 7 order and that she prepared her notice of appeal from
the March 14 order without the assistance of counsel. The "'notice of appeal must
be liberally construed.'" (In re Joshua S., supra, 41 Cal.4th at p. 272.) We do that
here and affirm on the merits.
The juvenile court did not abuse its discretion when it determined
that A.W. had not demonstrated sufficient grounds to replace counsel. An
indigent parent has a statutory and a due process right to competent counsel in a
proceeding to terminate parental rights. (§§ 317, subd. (b); 317.5, subd. (a); In re
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Meranda P. (1997) 56 Cal.App.4th 1143, 1152-1153.) An exhaustive Marsden
hearing is not required; it is only necessary that the juvenile 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.) The standard is the same as it would be
for a criminal case. The question is "'(1) whether trial counsel failed to act in a
manner expected of reasonably competent attorneys acting as diligent advocates;
and 2) whether such failure deprived the defendant of a potentially meritorious
defense, or whether it is reasonably probable that a determination more favorable
to the defendant would have resulted but for counsel's failings . . . .'" (Id. at p.
936.) A.W. satisfies neither prong of this test.
A.W. told the juvenile court that her attorney's work was "unethical,"
and said she had been "misrepresented"; that he had not "fully fielded the issues";
that he had "misled" her; that he "doesn't have any paths for [her] to take"; that he
had been "withholding information"; and that she "had not been defended on a lot
of notes." She provided few facts or details to support these conclusions and
characterizations. She stated that counsel never returned her phone calls and
messages but the court credited counsel's statement that he had met with her and
spoken to her by phone and that she had not appeared for a scheduled meeting to
discuss strategy. We will not reassess the court's credibility determination. A.W.
stated that her attorney should not have abandoned the appeal from the order
terminating reunification services, but counsel said he advised her that he could
find no legal basis for appeal and could only file the notice of appeal for her.
A.W. told the juvenile court that counsel did not bring her medical
history to the court's attention, that hospitalization had interfered with her ability
to complete parenting classes, and that he did not submit documents that A.W.
wished to present. She has not demonstrated how this information would have
supported a potentially meritorious defense. Neither has she demonstrated on
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appeal that it is reasonably probable a determination more favorable would have
resulted but for counsel's alleged failings.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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Arthur Garcia, Judge
Superior Court County of Santa Barbara
______________________________
David A. Hamilton, under Appointment by the Court of Appeal, for
Defendant and Appellant.
Dennis A. Marshall, County Counsel, Bo L. Bae, Deputy County
Counsel, for Plaintiff and Respondent.
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