In re Marilyn H. CA2/3

Filed 5/16/23 In re Marilyn H. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re Marilyn H., a Person B321485
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No.
CHILDREN AND FAMILY 19CCJP02633A
SERVICES,
Plaintiff and Respondent,
v.
KARINA H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tiana J. Murillo, Judge. Affirmed.
Mitchell Keiter, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________________________
INTRODUCTION
This is Karina H.’s (mother) third appeal in dependency
proceedings involving her six-year-old daughter Marilyn. In the
first appeal, we affirmed the juvenile court’s jurisdiction findings
and disposition order declaring Marilyn a dependent of the court
and removing the child from mother’s custody due in part to
mother’s mental health issues. (In re Marilyn H. (Nov. 17, 2020,
B302057) [nonpub. opn.] (Marilyn I).) In the second appeal, we
affirmed the court’s findings and order terminating mother’s
reunification services. (In re Marilyn H. (July 22, 2021, B308251)
[nonpub. opn.] (Marilyn II).) In this appeal, mother argues that
the court committed reversible error by failing to allow mother to
tell the court why she wished to replace her court-appointed
counsel with private counsel at her Welfare and Institutions
Code1 section 366.26 hearing (the .26 hearing). Mother suggests
this was tantamount to denying a request for a Marsden2
hearing. Because mother was free to engage private counsel at
any time, no Marsden hearing was required. We also perceive no
abuse of discretion in the court’s denial of mother’s request for a
continuance of the .26 hearing, made on the date of the hearing,
which had already been continued several months. Finally,
mother identifies no prejudice caused by either purported error.
We therefore affirm.
1 Allundesignated statutory references are to the Welfare and
Institutions Code.
2 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2
FACTUAL AND PROCEDURAL BACKGROUND3
In October 2019, the court sustained a dependency petition
filed on Marilyn’s behalf by the Department of Children and
Family Services (Department), which alleged: (1) mother’s mental
health and emotional problems, including a diagnosis for “major
depression recurrent with psychotic symptoms,” and her failure
to take prescribed psychotropic medication, placed the child at
risk of serious physical harm (§ 300, subd. (b); b-1 allegation); (2)
John M.’s (father) history of substance abuse rendered him
incapable of providing regular care to the child, and his drug use
and mother’s failure to protect Marilyn from that drug use place
the child at serious risk of physical harm (§ 300, subd. (b); b-2
allegation); and (3) mother’s mental health issues, which caused
Marilyn’s sibling to be declared a dependent of the court, placed
Marilyn at serious risk of physical harm (§ 300, subd. (j); j-1
allegation). The court declared Marilyn a dependent of the court
and ordered her removed from her parents’ custody.
The court awarded mother and father reunification
services. The court ordered mother to: complete a parenting
program and mental health counseling; undergo psychological
and psychiatric evaluations; participate in individual counseling
addressing her history of mental health issues and how to
properly care for Marilyn; and take all prescribed psychotropic
medications. The court also ordered mother to submit to 10
3 A detailed summary of the factual background leading up to the
jurisdiction and disposition hearing appears in Marilyn I. A detailed
summary of the factual background of the case between the
jurisdiction and disposition hearing and the termination of mother’s
family reunification services appears in Marilyn II.
3
random drug tests to show her “marijuana levels” have
decreased. The court awarded mother three hours of visitation
per week.
Mother appealed from the disposition order.4 We affirmed
the court’s jurisdiction findings and disposition order in Marilyn
I.
Mother made progress in completing her court-ordered case
plan during the first several months of the review period.
Mother’s drug tests showed a steady drop in the concentration of
marijuana metabolites in mother’s system. Mother continued her
psychiatric treatment at Tri-City Mental Health Services (Tri-
City), where she was receiving services leading up to the
jurisdiction and disposition hearing. Mother was also seeing a
new therapist. Through late March 2020, mother visited Marilyn
twice a week for about two hours each visit. Mother brought food
and activities for Marilyn, and the child usually appeared happy
to see her.
However, Mother stopped visiting or otherwise contacting
Marilyn around April 2020 and stopped contacting her therapist
around the same time. Between April and July 2020, the social
worker spoke to mother on only one occasion, during which
mother’s behavior was belligerent and erratic. In late July 2020,
the social worker spoke to mother’s psychiatrist at Tri-City.
Mother occasionally “pop[ped] in for services,” but she had not
4Father also appealed this order, but his court-appointed appellate
counsel filed a no-merit brief under In re Phoenix H. (2009) 47 Cal.4th
835. We dismissed father’s appeal in August 2020. Father is not a
party to the instant appeal.
4
consented to the psychiatrist releasing details of her treatment to
the Department.
In late September 2020, mother contacted the Department.
She provided her new address and asked for video or telephonic
visits with Marilyn, which the social worker agreed to arrange.
Mother claimed she completed her services at Tri-City, was
working to arrange additional services near her new home, and
was still taking medication. But the Department had yet to
receive psychological or psychiatric evaluations for mother or
proof that she had enrolled in or completed mental health and
individual counseling.
In October 2020, after several continuances, the court held
a review hearing under section 366.21, subdivision (e). The court
found mother and father were in partial compliance with their
case plans and had made minimal progress toward alleviating
the issues leading to Marilyn’s dependency. The court found it
would be detrimental to Marilyn’s health and safety to return the
child to her parents’ custody. The court terminated mother’s
reunification services but continued father’s services because he
had only recently been released from prison.
Mother appealed from the order terminating reunification
services. We affirmed the court’s findings and order in Marilyn II.
The court set a further status hearing for April 2021. In a
report filed before the hearing, the Department noted that
Marilyn had bonded well with her caretakers, with whom she
had been placed in April 2020, and was doing well. Mother had
not participated in visitation with Marilyn during the reporting
period. Father had not had any visits with Marilyn since August
2020. He had also failed to enroll in a drug and alcohol program
and to participate in drug testing, as the court had ordered. The
5
Department therefore recommended that father’s reunification
services be terminated.
The court concluded that notice of the hearing had not been
properly given to mother and continued the hearing to May 2021.
In a last minute information filed with the court, the Department
reported that mother had not made contact with the social
worker since March 2021. The last time mother had called
Marilyn they spoke for only five minutes, as Marilyn got bored
and did not wish to engage with mother. At the hearing, the court
terminated family reunification services for father and set a
section .26 hearing for September 2021.
The Department filed its section .26 report in September
2021. According to one of the child’s caretakers, mother
participated in twice-weekly telephonic visitations with Marilyn,
but did not always call. When she did, she would not allow
Marilyn to speak, and the calls were no more than five minutes
because Marilyn did not want to stay on the phone. Marilyn
would sometimes grow upset and give the phone to the caretaker.
Father had not contacted Marilyn since August 2020. A social
worker reported that Marilyn appeared happy in her current
home. Her caretakers had demonstrated a commitment to her, as
evidenced by their desire to move forward with adoption as soon
as possible. The Department identified adoption as the most
appropriate plan for Marilyn. The social worker had obtained
mother’s agreement to be served with notice of the .26 hearing by
email, but requested a 120-day continuance to complete a due
diligence search for father.
The court found that notice of the section .26 hearing had
not been given as required by law and continued the .26 hearing
to January 2022. In a November 2021 status report, the
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Department noted that mother called Marilyn twice a week, but
her calls were inconsistent and lasted approximately five minutes
because Marilyn did not want to speak with mother. Marilyn had
been exhibiting tantrum behaviors triggered by mother’s
monitored phone calls. According to the prospective adoptive
parents, Marilyn would become upset, verbalize that she did not
want to be on the phone, hide the phone, throw the phone, and
pinch the prospective adoptive parents. She also questioned who
her mother was. The Department submitted a mental health
referral for Marilyn. Father had not contacted Marilyn during the
reporting period. Marilyn continued to be placed with the
prospective adoptive parents and the Department believed that
adoption continued to be an appropriate plan. Marilyn was
happy, healthy, and thriving in the prospective adoptive parents’
home and had a bond with them.
In January 2022, the Department informed the court that
it had served mother with notice of the .26 hearing via certified
mail, but its due diligence search for father was still pending. The
Department requested a further continuance of the .26 hearing.
The court found that notice had been proper as to mother and
granted the continuance. The Department located father in
March 2022 and the .26 hearing was scheduled for June 2022.
The Department filed a further status report in May 2022.
Marilyn continued to reside with her prospective adoptive
parents and had formed a strong attachment to them. She
referred to them as “mom” and “dad.” Marilyn was receiving
mental health services to improve her emotional regulation and
expression of feelings. Her mental health care provider reported
that Marilyn’s prospective adoptive parent “does well to soothe
and manage [child’s] symptoms when client [child] is
7
dysregulated.” Mother’s telephonic and video visits with Marilyn
were inconsistent. Mother sent the social worker crafts, activities,
and gifts for Marilyn, which the social worker provided to
Marilyn. Mother also attempted to read books to Marilyn, sing
songs, and ask appropriate questions. However, the calls still
lasted no more than five minutes. Marilyn continued to express
that she did not want to speak with mother and would run off
camera or hang up the call. Father had twice weekly telephonic
calls with Marilyn and began video calls with her in April 2022.
However, the first video call lasted less than one minute as
Marilyn did not wish to speak with father.
In a last-minute information filed in June 2022, the
Department reported that mother had not participated in
telephonic visits with Marilyn for three to four months because
she did not have a phone. Her video visits had been inconsistent
for the past three months and, when they took place, lasted only
two to five minutes. Marilyn indicated that she did not want to
speak with mother and ran off camera. Although the caretaker
tried to redirect Marilyn back on camera, Marilyn would yell, as
she did not want to talk. Marilyn’s calls with father were also
inconsistent and Marilyn verbalized that she did not want to
speak to him.
At the .26 hearing on June 14, 2022, the court stated its
understanding that a continuance would be requested so mother
could pursue private counsel. Mother’s counsel stated: “Yes, your
Honor. [¶] Mother informs me this morning that she wishes to
seek private counsel to represent her in this hearing. It is her
request today for a continuance.” Mother’s counsel did not have a
recommendation regarding the length of the continuance.
Counsel for father did not object to the request, but Marilyn’s
8
counsel objected on the grounds that mother “has had ample
opportunity over the years to seek private counsel.” Counsel for
the Department joined in the arguments of Marilyn’s counsel and
pointed out that notice of the .26 hearing had been proper as to
mother since January 2022.
Mother attempted to speak, but the court muted her. The
court recognized that mother may have thoughts she wished to
share but asked that she wait to be called upon. The court stated
that it was of the view that there was not good cause for a
continuance because it would not be in the best interests of the
child and proceeded with the .26 hearing. Counsel for mother
informed the court that mother objected to the Department’s
recommendation and asked the court not to terminate her
parental rights under the parental bond exception, citing
mother’s phone visits with Marilyn. Mother’s counsel advised the
court that mother wished to pursue a different permanent plan
and asked that the court note her objection, which it did. Counsel
for father also objected to the termination of parental rights, but
acknowledged that the parental bond exception did not apply to
father. Marilyn’s counsel and counsel for the Department argued
that parental rights should be terminated because the parental
bond exception did not apply and Marilyn was adoptable.
The court concluded that the parental bond exception did
not apply as to mother and terminated parental rights for mother
and father. It reiterated that there was no good cause for a
continuance based on the evidence presented. The court
concluded that jurisdiction and placement were still necessary
and appropriate. It found by a preponderance of the evidence that
Marilyn’s return to the parents would be detrimental and found,
by clear and convincing evidence, that Marilyn was adoptable.
9
The court advised mother and father of their right to appeal. The
court thanked mother for her appearance but at no point called
on her to speak.
Mother timely appealed.
DISCUSSION
Mother argues that the court committed reversible error by
not permitting her to speak at the .26 hearing to explain the
grounds for her request for a continuance to retain private
counsel. Mother argues that, in preventing her from speaking at
the hearing, the court erroneously denied her a Marsden hearing.
Mother also argues that the court erred in not allowing her the
opportunity to explain how long of a continuance she wanted and
the basis for the request. She contends that she could not present
affirmative evidence that a continuance was justified because she
was not permitted to speak. Mother does not challenge the
substance of the order terminating her parental rights.
The denial of a Marsden hearing and denial of a
continuance are both reviewed for abuse of discretion. (See People
v. Barnett (1998) 17 Cal.4th 1044, 1085 [denial of Marsden
motion]; In re Giovanni F. (2010) 184 Cal.App.4th 594, 605
[denial of request for continuance].) Whether we view mother’s
appeal as challenging the denial of the continuance or the denial
of a Marsden hearing, or both, we conclude that the court did not
abuse its discretion. Moreover, mother fails to identify any
prejudice arising from either purported error.
1. The court did not abuse its discretion in denying
mother a Marsden hearing.
The legal principles governing requests for a Marsden
hearing are settled. “ ‘ “When a defendant seeks to discharge his
10
appointed counsel and substitute another attorney, and asserts
inadequate representation, the trial court must permit the
defendant to explain the basis of his contention and to relate
specific instances of the attorney’s inadequate performance.
[Citation.] . . . .” [Citations.]’ [Citations.]” (People v. Lara (2001)
86 Cal.App.4th 139, 150.) A Marsden hearing is only required,
however, “when [the] defendant requests substitution of
appointed counsel[,]” and “ ‘when the defendant asserts directly
or by implication that his counsel’s performance has been so
inadequate as to deny him his constitutional right to effective
counsel.’ [Citations.]” (Id. at pp. 150–151.) These principles have
also been applied in juvenile dependency proceedings. (See In re
V.V. (2010) 188 Cal.App.4th 392, 398.)
Marsden “involved the substitution of appointed counsel for
another appointed counsel,” and “[t]he standards for evaluating
such requests are quite different than those used in the retained
counsel context.” (People v. Courts (1985) 37 Cal.3d 784, 795,
fn. 9.) In other words, “[t]he procedure specified by Marsden for
discharging appointed counsel and appointing new counsel for an
indigent defendant is inapplicable to retained counsel.” (In re
V.V., supra, 188 Cal.App.4th at p. 398.) In In re Giovanni F.,
supra, 184 Cal.App.4th at page 604, the court held that a father’s
request for a continuance so that he could attempt to retain a
new attorney was not sufficient to require the court to hold a
Marsden hearing.
Mother cites no authority for the proposition that a client
who announces her intention to discharge appointed counsel and
retain private counsel thereby obtains a right to a Marsden
hearing. Mother did not need a Marsden hearing to hire private
counsel; she was free to do so at any time. Thus, the court did not
11
abuse its discretion in failing to allow mother to explain her
request for a continuance to retain private counsel.5
2. The court did not abuse its discretion in denying
mother’s request for a continuance.
Pursuant to section 352, subdivision (a), the juvenile court
“may continue any hearing . . . beyond the time limit within
which the hearing is otherwise required to be held[.]”
“Continuances shall be granted only upon a showing of good
cause” and if it would not be “contrary to the interest of the
minor.” (Id., subd. (a)(1) & (2).) “In order to obtain a motion for a
continuance of the hearing, written notice shall be filed at least
two court days prior to the date set for hearing, together with
affidavits or declarations detailing specific facts showing that a
continuance is necessary, unless the court for good cause
entertains an oral motion for continuance.” (Id., subd. (a)(3).)
Continuances are discouraged in dependency cases. (In re
Giovanni F., supra, 184 Cal.App.4th at p. 604.)
To the extent mother argues that she has good cause for a
continuance because she was entitled to a Marsden hearing, we
disagree for the reasons set forth above. (See In re Giovanni F.,
supra, 184 Cal.App.4th at p. 604.)
Further, although we do not know what explanation
mother might have offered for her belated request for a
continuance, the court did not act beyond the bounds of reason in
concluding that no explanation could establish good cause for a
5 Because we conclude that mother had no right to a Marsden hearing,
we do not reach the Department’s contention that mother forfeited her
claim of ineffective assistance of counsel by failing to raise it via a
petition for writ of habeas corpus.
12
further delay of proceedings. The .26 hearing was originally set
for September 2021. Mother was informed by a social worker of
the hearing and agreed to email service of notice of the
September hearing date. Thus, she was aware that a hearing
would take place at which her parental rights could be
terminated almost nine months before it ultimately occurred.
Even if we disregard evidence indicating that mother knew of the
.26 hearing as of September 2021, mother had approximately five
months from the time she was properly noticed in January 2022
and the hearing took place in June 2022 in which to retain
counsel. At no point prior to the hearing did mother inform her
court-appointed counsel that she intended to hire a private
attorney. Had she done so, her counsel could have filed a written
notice requesting a continuance and setting forth any issues
mother was facing in retaining counsel, pursuant to section 352,
subdivision (a)(3). Rather, mother waited until the day of the
continued .26 hearing to inform her current attorney and the
court that she wanted to retain counsel. The court could
reasonably conclude that this was an improper attempt to stall
proceedings.
The court also acted within its discretion in deciding that
mother’s request for a continuance to retain counsel would
unreasonably delay the proceedings to Marilyn’s detriment. By
the time of the .26 hearing, Marilyn had been in foster care for
over three years, since April 2019. Evidence that Marilyn acted
out when she was required to speak with mother and questioned
who her mother was suggests that she was anxious about the
uncertainty of her situation. Thus, the court reasonably
concluded that further delay of the hearing would have interfered
with Marilyn’s need for prompt resolution of her custody status
13
and her right to a permanent placement. (In re Ninfa S. (1998) 62
Cal.App.4th 808, 811.)
3. Mother has failed to show that the denial of a Marsden
hearing or denial of the request for a continuance
prejudiced her.
Even if the court erred in denying mother’s request to
continue the .26 hearing and by failing to hold a Marsden
hearing, mother has failed to address the issue of prejudice. It is
not enough to show error to obtain reversal. Mother was required
to show that the outcome would have been different if the
continuance had been granted and she was able to retain new
counsel. (See Cal. Const., art. VI, § 13; In re M.P. (2013) 217
Cal.App.4th 441, 460 [failure to conduct a Marsden-type hearing
is not reversible error in dependency cases absent a showing of
prejudice]; In re Emily D. (2015) 234 Cal.App.4th 438, 449
[applying harmless error standard to denial of request for a
continuance].)6
The issues before the juvenile court at the .26 hearing were
whether any exception to termination of parental rights applied
and whether Marilyn was adoptable. Regardless of who
6 Mother relies solely on Marsden for the proposition that she “may
succeed without challenging Marilyn’s adoptability, or showing the
strength of the parent-child bond.” However, mother does not address
In re M.P., supra, 217 Cal.App.4th 441 or cite any cases supporting
that failure to hold a Marsden-type hearing is per se reversible error in
the dependency context. Our review of dependency cases supports that,
even if a Marsden hearing had been required, mother was required to
demonstrate that the error in denying the hearing was prejudicial.
(See Id. at p. 460; In re Ronald R. (1995) 37 Cal.App.4th 1186, 1197.)
14
represented mother or whether she obtained a continuance, the
evidence on these issues was settled.
To demonstrate the applicability of the parental-benefit or
parental bond exception under section 366.26, subdivision
(c)(1)(B)(i), the parent must prove, “(1) regular visitation and
contact, and (2) a relationship, the continuation of which would
benefit the child such that (3) the termination of parental rights
would be detrimental to the child.” (In re Caden C. (2021) 11
Cal.5th 614, 631.) Mother fails to cite any evidence indicating
that this exception applies, and evidence that it does not apply is
substantial. Although mother visited Marilyn regularly through
March 2020, she did not contact Marilyn between April 2020 and
February 2021, and her participation in telephonic and video
visitation with Marilyn was often inconsistent between
November 2021 and the .26 hearing in June 2022. Reports
submitted by the Department between April 2021 and the .26
hearing indicate that calls between mother and Marilyn lasted
less than five minutes and that Marilyn consistently expressed
that she did not want to speak with mother, even when mother
ceased to speak over Marilyn and tried to engage her attention
with stories, songs, and activities. In September 2021, Marilyn’s
caretaker reported that she grew upset and acted out in response
to calls from mother. Marilyn continued to respond negatively to
calls with mother through May 2022, when a social worker
reported that Marilyn would run off camera during virtual visits
with mother and yell because she did not wish to participate. In
sum, mother does not identify, nor do we perceive in the record,
evidence of a “a substantial, positive, emotional attachment”
between Marilyn and mother. (Caden C., at p. 633.)
15
Further, Marilyn was adoptable, as evidenced by the fact
that her foster parents wanted to adopt her. (See In re Sarah M.
(1994) 22 Cal.App.4th 1642, 1650 [“a prospective adoptive
parent’s willingness to adopt generally indicates the minor is
likely to be adopted within a reasonable time”].) By the time the
.26 hearing finally took place, Marilyn had spent two full years of
her young life with the prospective adoptive parents. She was
happy and thriving in their home and called them “mom” and
“dad.” The evidence showed that the prospective adoptive parents
were committed to the adoption process and making Marilyn a
permanent member of their family.
Thus, we perceive no prejudice resulting from the court’s
denial of a Marsden hearing or the denial of mother’s request for
a continuance to retain counsel.
16
DISPOSITION
The court’s findings and order terminating mother’s
parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
17