In re C.R.
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 the Juvenile
Court Law.
2d Juv. No. B247705
(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. (
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.)
name="_ftnref1" title="">[1] We affirmed that order on appeal. (Santa Barbara County
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 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
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 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
complaints against the attorney." (
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 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.
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.
references are to the Welfare and Institutions Code.
