In re Brynne B.

Filed 1/17/07  In re Brynne B. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

            APPEAL from orders of the Superior Court of Los Angeles County, Sherri  S.  Sobel, Temporary Judge.  (Pursuant to Cal. Const., art. VI, § 21.)  Orders  are affirmed.

            Arnold B., in pro. per., for Defendant and Appellant.

            No appearance for Plaintiff and Respondent.

___________________________________________

            In this dependency case (Welf. & Inst. Code § 300 et seq.),[1] Arnold B., the father of the dependent minor children Brynne B., Arnold B., Jr. and Avery B., (Father, Brynne, Arnold Jr., and Avery, respectively), has appealed from several orders of the trial court, specifically, orders made on February 17, March 23, May 19, July 6 and 7, 2006.

            The disposition order, which was filed on January 20, 2005, was the first appealable order in the case.  With the exception of the January 27, 2006 order that set the case for a section 366.26 hearing, all of the orders of the court that were made after the disposition order were immediately appealable when they were made, including the ones from which Father has appealed.  Appeals from those orders were required to be filed in a timely manner, that is, within 60 days after such orders became final.  (Cal. Rules of Court, rule 37.)

            Father's notice of appeal was filed on July 7, 2006, and he does not explain how the notice could be timely as to all of the orders he challenges.  Moreover, although he contends that his attorneys were ineffective in their assistance of him in this matter, for the reasons discussed below, we find Father's contentions do not warrant reversal of the orders he has challenged here.

BACKGROUND OF THE CASE

            The dependency petition was filed by the Los Angeles County Department of Children and Family Services (the Department) in November 2004, when Brynne was 14 years old, Arnold Jr. was 12, and Avery was 10.  They had been living with Father and their mother (Mother) at that time.  The Department detained the minors to the home of their maternal grandmother.

            The sustained petition alleges Father physically abused Arnold Jr. and Mother was unable to protect the minor.  The sustained petition further alleges Father is a registered sex offender and Mother permitted him to live with the children and have unmonitored access to them.  Additionally, the sustained petition alleges Father sexually molested Brynne, including fondling her breasts and legs, kissing her on the lips, repeatedly having vaginal intercourse with her, having anal intercourse with her, forcing her to orally copulate his penis, and watching pornographic movies with her, and Mother knew or reasonably should have known of this abuse and failed to protect Brynne from Father.  The sustained petition also alleges Mother has mental and emotional problems that limit her ability to care for the minors, she was diagnosed with depression with psychotic episodes, psychotropic medication was prescribed for her, and she has a history of attempted suicide.

            At the January 20, 2005 adjudication/disposition hearing, the court declared the minors dependents of the court.  Custody was taken from the parents for suitable placement by the Department, and the children remained with their grandmother and their maternal aunt, who live together.

            At the January 18, 2006 section 366.21, subdivision (f) 12-month hearing permanency hearing, the court continued the hearing for a contest by Father on January  27 on the issue whether the children would be returned to the parents by the 18‑ month date, and the children indicated they wanted to be heard at the January  27 hearing.

            At the section 366.26(f) hearing on January 27, the court took testimony from the three minors in open court, and each of them indicated they wanted to continue to live with, and be adopted by, their maternal grandmother and their maternal aunt, and they denied Father's allegation that they were being abused in that placement.  The court terminated Mother's reunification services (Father had not been offered reunification services), and set a progress hearing on February 17 regarding Father's challenge to the current placement of the minors.  The court also set a section 366.26 hearing for May  19. Father made a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) at the January  27 hearing, and it was heard and denied that day.

            On February 17, 2006, the court held a hearing on an additional Marsden motion made by Father.  New counsel was appointed for him.

            The section 366.26 hearing, and Father's challenge to the minors' placement with their maternal grandmother and aunt, were eventually held on July 7.  Father made a statement to the court.  The court determined that it would not be detrimental to the children to terminate the parents' parental rights, and further determined the current foster care placement was appropriate.  It terminated the parents' parental rights, and referred the children for adoptive placement.  Father then filed this appeal and has filed a letter with this court in which he sets out his appellate contentions.[2]

ISSUES ON APPEAL

            The issues Father raises in this appeal are that (1) he was denied effective assistance of counsel in the trial court, and (2) he was not told that he did not have to consent to having the case heard by a referee.

DISCUSSION

            1.         Effective Assistance of Counsel

            Father's challenges to his prior attorney were heard and determined at the January  27 and February 17 hearings, and the court appointed new counsel for him at the latter hearing.  At the Marsden hearings, the gist of his complaints about his former attorney was that the attorney did not make an evidentiary presentation to the court regarding Father's allegations that the children were not in an appropriate foster placement.  If Father had other concerns about his prior attorney, he should have stated them at the Marsden hearings.  If Father had concerns about what occurred at the two Marsden hearings, his recourse was to file an appeal to challenge the January 27 and/or February orders.  Moreover, the additional alleged failings of his prior attorney that he now raises on appeal are not sufficiently explained in his appellate letter to enable this court to address them and/or are not supported by references to the record.

            Regarding his contention that the new attorney who was appointed to represent him was also deficient in handling the case, that was something Father should have brought to the attention of the trial court through a subsequent Marsden motion.  Although he asserts on appeal that he attempted to â€