IN RE: Albert P. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Nancy P. (mother) appeals from orders terminating parental rights to Albert, Melissa, and Nataly under section 366.26 of the Welfare and Institutions Code.¹ Mother contends the termination orders should be conditionally reversed because the dependency court failed to order a Marsden ² hearing.   We affirm.

FACTS AND PROCEDURAL HISTORY

Mother had a history of crystal methamphetamine abuse, domestic violence, neglect of her children, and homelessness.   Albert, born in 2002, and Melissa, born in 2006, were detained in September 2007 and made dependents of the court in March 2008.   Nataly, born in April 2008, was detained in June 2008 and made a dependent in August 2008.   The children were placed with the maternal grandparents, who provided them with a loving, nurturing, and stable home.   Mother was offered reunification services and ordered to participate in drug rehabilitation and drug testing, domestic violence counseling, individual counseling, and parenting.

Mother failed to reunify with her children and reunification services were terminated in December 2008 (as to Albert and Melissa) and March 2009 (as to Nataly), because, other than brief enrollments in three drug programs, mother did not participate in her court-ordered case plan at all.   Moreover, mother moved in and out of the children's lives, failing to visit for long periods of time.   Melissa, who before she was detained from mother, experienced living on the streets and physical violence inflicted on herself and mother, suffered from enuresis and had other special behavioral needs.   Albert struggled with sadness and loss.   The children were healthy and happy in the maternal grandparents' home.   The maternal grandparents met the children's basic and special needs and were committed and eager to adopt.

In December 2008 or January 2009, mother was deported to Mexico, where she remained.   Her whereabouts were unknown until she contacted the social worker in April 2009.   Permanent plan hearings (§ 366.26) were set:  March 2009 for Albert;  July 2009 for Nataly;  and October 2009 for Melissa.   Mother received actual notice of the proceedings and was represented by appointed counsel Benigno de Hoyos, but the dependency court continued the hearings to September 7, 2010, for notice to mother under the Hague Convention.   During the continuation period, mother wrote detailed letters to the dependency court or social worker complaining about the social workers, maternal grandparents, and her legal representation.

The section 366.26 hearing was held on September 7, 2010.   At the hearing, mother requested by letter that new counsel be appointed to represent her because Attorney de Hoyos was not providing competent assistance.   The dependency court denied the request.   The dependency court found Albert, Melissa, and Nataly were adoptable and terminated parental rights.   This timely appeal followed.

DISCUSSION

Marsden Hearing

Mother contends the orders terminating parental rights should be conditionally reversed because the dependency court failed to order a Marsden hearing to determine whether her complaints of ineffective assistance of counsel had merit.   We disagree with the contention.

A parent has a statutory right to competent counsel in dependency proceedings. (§ 317.5, subd. (a).)  Whether the parent has a constitutional right to competent counsel under the federal due process clause is determined on a case-by-case basis, after determining whether the balance of the private interests, the state's interests, and the risk that the procedure used will result in erroneous decisions overcomes the presumption against appointed counsel.  (Lassiter v. Department of Soc. Serv. (1981) 452 U.S. 18, 27, 31.)   The right to a Marsden hearing when a party requests substitution of counsel arises when the party has a constitutional right to counsel.  (See In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.)

“ ‘When a [criminal] defendant seeks new counsel on the basis that [her] appointed counsel is providing inadequate representation—i.e., makes what is commonly called a Marsden motion ․ —the trial court must permit the defendant to explain the basis of [her] contention and to relate specific instances of inadequate performance.   A defendant is entitled to relief 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 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.  [Citation.]’  [Citation.]  [¶] On review, we consider (1) the timeliness of the motion, (2) the adequacy of the court's inquiry into the defendant's complaint, and (3) whether the conflict was so great that it resulted in a total lack of communication preventing an adequate defense․  On factor (1):  ‘ “It is within the trial court's discretion to deny a motion to substitute made on the eve of trial where substitution would require a continuance.”  [Citation.]  ․’ (Id. at p. 607.)   On factor (2), inquiry is adequate if it allows the defendant to express herself fully—i.e., as comprehensively as the circumstances reasonably permit.  (Ibid.)” (In re Z.N. (2009) 181 Cal.App.4th 282, 293–294.)

We need not decide whether the Marsden hearing procedure applied in this case, because if it did apply, denial of mother's request for appointment of new counsel at the section 366.26 hearing was not an abuse of discretion.   The purpose of a Marsden hearing is to provide an opportunity for the party to state why she requests new counsel and give specific instances of misconduct.  (In re Z.N., supra, 181 Cal.App.4th at p. 294.)   There was no need for a Marsden hearing because, as mother acknowledges, her letters advised the dependency court of her specific complaints about counsel's performance.³

Moreover, the record indicates the dependency court considered mother's complaints before concluding the request to substitute counsel should be denied.   The dependency court commented on each letter it received, reflecting it considered each letter.

The dependency court's exercise of discretion is supported by the record, as each complaint is belied by the record.   Mother acknowledged Attorney de Hoyos contacted her in May 2009, not long after mother divulged her new address, and advised her she should continue working on her court-ordered program and then perhaps a section 388 petition could be filed.   As mother did not work on her program, counsel had no basis to file a section 388 petition.   Mother acknowledged she received court documents.   Mother acknowledged the dependency court was advised of her updated status and intentions.   The dependency court stated mother appeared “very well aware of the court process, including having discussed requesting her attorney to file a [section] 388.”   It was not ineffective assistance of counsel to fail to file a writ petition for review of the March 6, 2009 order terminating reunification services and setting a section 366.26 hearing (setting order) in Nataly's case,⁴ because the time to file the notice of intent to file a writ petition had expired before mother's whereabouts and intentions became known.  (See Cal. Rules of Court, rule 8.450(e)(4)(B) [where notice of the setting order was mailed to the party, the deadline is 12 days after the date of the mailing].) ⁵  It was not ineffective assistance to fail to present to the dependency court mother's reasons for not complying with the reunification orders, because mother did not communicate her reasons to counsel.

Finally, the request's untimeliness supports the dependency court's exercise of discretion.   Substitution of counsel on the day of the section 366.26 hearing would have required continuing the section 366.26 hearing for more than four months in order to accomplish notice to mother under the Hague Convention.   Delays in providing permanency for children who cannot be reunited with their parents are inimical to the children's interest.  (E.g., In re Celine R. (2003) 31 Cal.4th 45, 53.)   Permanency for Albert, Melissa, and Nataly was already long overdue.

DISPOSITION

The orders are affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code..  FN1. All further statutory references are to the Welfare and Institutions Code.

FN2. People v. Marsden (1970) 2 Cal.3d 118 (Marsden )..  FN2. People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).

FN3. Mother's complaints were:  counsel failed to file an appeal of the termination of reunification services in Nataly's case or a section 388 petition;  she received no legal assistance in the last year;  counsel failed to advise the dependency court of her “updated status”;  and counsel failed to argue to the dependency court that the reason she did not comply with the case plan was because of her immigration status and medical problems during pregnancy..  FN3. Mother's complaints were:  counsel failed to file an appeal of the termination of reunification services in Nataly's case or a section 388 petition;  she received no legal assistance in the last year;  counsel failed to advise the dependency court of her “updated status”;  and counsel failed to argue to the dependency court that the reason she did not comply with the case plan was because of her immigration status and medical problems during pregnancy.

FN4. Appellate review of a setting order is by way of a writ petition, not an appeal.  (See § 366.26, subd. (l);  Cal. Rules of Court, rule 8.450.).  FN4. Appellate review of a setting order is by way of a writ petition, not an appeal.  (See § 366.26, subd. (l);  Cal. Rules of Court, rule 8.450.)

FN5. The clerk mailed the setting order to mother at her last known address on March 10, 2009..  FN5. The clerk mailed the setting order to mother at her last known address on March 10, 2009.