In re Jamie P.

Filed 8/2/06 In re Jamie P. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Cynthia Bashant, Judge. Orders affirmed in part and reversed in part and matter remanded with directions.

Ming Y. appeals from juvenile court orders pertaining to her minor child, Jamie P. She contends that the court erred in: (1) denying her request to dismiss her retained counsel; (2) failing to return Jamie to her custody; and (3) changing her visitation from unsupervised to supervised. We reject her first two contentions, but conclude that the juvenile court abused its discretion in changing her to supervised visitation and reverse that order.

FACTUAL AND PROCEDURAL BACKGROUND

On April 30, 2004, Jamie was born to Ming and William P., who separated shortly after her birth. Ming's primary language is a Chinese dialect, but she also spoke Mandarin and could speak and understand basic English, although she had limited knowledge of American culture or child care standards. Ming was Jamie's primary caregiver and she supervised Jamie's visits with William because she believed women were more careful around children. Ming's mother also cared for Jamie three or four days a week while Ming worked.

During a routine examination on July 16, 2004, Jamie's primary care physician noticed that her head was enlarged and referred her to a neurosurgeon after tests showed fluid collection over both frontal lobes. On July 23, the neurosurgeon referred Jamie to the Children's Hospital Emergency Room where the physicians diagnosed a rib fracture that was at least "weeks old" and a subdural hematoma that "might [have been] older," both injuries were suspicious for non-accidental trauma. That same day, the San Diego County Health and Human Services Agency (the Agency) took Jamie into protective custody and filed a petition alleging she was at substantial risk of serious physical harm inflicted non-accidentally by her parent or guardian because she had been subjected to serious physical harm while in her parents' care. (Welf. & Inst. Code, § 300, subd. (a); all undesignated statutory references are to this code.)

Ming claimed that she did not know how Jamie got hurt and that neither she nor her mother had inflicted the injuries, instead continually blaming William. William admitted that Jamie slipped out of his arms during a visit, but said she did not fall to the ground because he trapped her against his waist. Although William expressed concern that this incident may have caused Jamie's injuries, the social worker did not believe this because physicians checked Jamie the following day and discharged her after performing some tests. The social worker ultimately concluded that William could not have caused Jamie's injuries because he did not visit her for about a month before the discovery of her injuries and physicians suspected that the injuries were more recent.

At the September 2004 contested adjudication and disposition hearing, the court continued Jamie's placement in foster care and amended the petition by interlineation to allege a violation of section 300, subdivision (b), referring to "the failure or inability of [the child's] parent or guardian to adequately supervise or protect the child," rather than subdivision (a). In June 2005, Ming began weekly unsupervised visits with Jamie for up to eight hours at a time and by August 2005, Jamie was on a 60-day trial visit with William. At this time the Agency discovered that Ming's Mandarin-speaking therapist, Dr. Mei-I Chang, was providing traditional therapy, rather than addressing risk assessments and protective issues. Based on this circumstance, Ming's continued belief that William caused Jamie's injuries and her changed story about William not visiting Jamie for a month, the Agency requested that Ming's visitation be changed from unsupervised to supervised, even though Ming was complying with her case plan and the Agency had no indication that she would somehow injure Jamie.

In September 2005, the court ordered supervised visitation for Ming pending trial. Although trial was scheduled to commence in October 2005, Ming's attorney was not prepared to proceed and the court continued the matter to December 2005. On the date of trial, the court denied a request by Ming and her counsel for the appointment of substitute counsel. After hearing the social worker's testimony and considering Dr. Chang's report, the parents' psychological evaluations, the Agency reports and counsel's argument, the juvenile court placed Jamie with William and concluded that Ming's visits should be supervised so that the Agency could confirm she understood developmentally appropriate behaviors for Jamie. Ming appeals from the orders denying her request to discharge retained counsel, failing to return Jamie to her custody and changing her to supervised visitation. On July 6, 2006, we ordered that the 18-month hearing be stayed pending further order of this court.

DISCUSSION

I. Refusal to Discharge Retained Counsel

A. Facts

On November 22, 2005, Ming's retained counsel, John J. Kang, moved to be relieved as her attorney of record because the attorney-client relationship had deteriorated and the juvenile court set the matter for hearing on the December 1, 2005 trial date. On the morning of trial, the court held a "Marsden" hearing to consider the problem. (People v. Marsden (1970) 2 Cal.3d 118.) (The court minutes erroneously refer to a "Marsden hearing" being held and denied. This reference is mistaken as a "Marsden motion" seeks "the substitution of appointed counsel for another appointed counsel[.]" (People v. Courts (1985) 37 Cal.3d 784, 795, fn. 9, italics deleted.) Ming initially stated that she wanted another attorney because of an attorney fee dispute, explaining that Kang wanted her to get a public defender because she could not pay him; however, "[i]t was not that I did not want him." Kang stated that "money [was] not an issue" and he was more concerned about incurring professional liabilities due to effective communication because Ming and her mother did not understand legal procedures and repeatedly asked the same questions.

The juvenile court understood Kang's concern, but stated that since he spoke Mandarin it was easier for him to communicate with Ming and replacing him with another attorney would not help. Ming responded that she "would like to retain" Kang, but "later he wanted $1000 more" and she was unsure what would happen in the future. The court explained that Kang was prepared for the hearing, would represent her and the money issue was between her and Kang. The court denied the request but made clear that if Ming had trouble communicating with Kang, she could "replace him with someone, but [he is your attorney today]." A few weeks after the hearing, Ming requested that counsel be appointed for her and the court set a special hearing to relieve retained counsel and appoint counsel.

B. Analysis

Relying on People v. Ortiz (1990) 51 Cal.3d 975 (Ortiz), Ming contends that the juvenile court erred in denying her request to relieve retained counsel. We are not persuaded.

As a threshold matter, it was counsel's motion, not Ming's and Ming never unequivocally stated that she wished to discharge Kang; rather, she wanted to retain Kang, but was concerned about future legal fees. Kang, however, never asked to be relieved on the ground he was not being paid and clarified that the money was not important. Based on this colloquy alone, the juvenile court was justified in denying the request.

Even assuming Ming unequivocally requested that Kang be relieved, the court had discretion to deny the request if discharging retained counsel would disrupt the orderly processes of justice or result in "significant prejudice" to the defendant. (Ortiz, supra, 51 Cal.3d at p. 982.) Indeed, even in the criminal context, "a court faced with a request to substitute retained counsel must balance the defendant's interest in new counsel against the disruption, if any, flowing from the substitution." (People v. Turner (1992) 7 Cal.App.4th 913, 919.)

Here, trial had already been continued once, Ming sought to replace counsel on the new trial date, Kang was prepared to proceed and granting the request would have necessarily resulted in a continuance of unknown duration. Although Ming argues that a continuance would not have been prejudicial, it is the policy of the dependency law to discourage continuances except on a showing of good cause and when not contrary to the child's best interests. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Based on the record before us, the juvenile court could reasonably have concluded that the balance tipped against Ming's interest in obtaining new counsel for that particular hearing and we conclude the juvenile court did not err in denying the request for the appointment of new counsel.

Significantly, the court acknowledged Ming's right to have counsel of her choice and informed her that she could replace Kang, stating only that Kang would remain her attorney for that hearing. In fact, the juvenile court granted Ming's subsequent request to relieve Kang and for the appointment of new counsel. (On our own motion, we take judicial notice of the superior court file in this case and in particular of the minute order dated January 24, 2006, relieving Kang and appointing counsel. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).))

II. Refusal to Return Jamie to Ming's Custody

At the 12-month review hearing, the juvenile court must determine whether the parent received reasonable services and return the child to the custody of the parent unless it determines, by a preponderance of the evidence, that returning the child would create a substantial risk of detriment to the child's physical or emotional well-being. "The social worker shall have the burden of establishing that detriment." (§ 366.21, subd. (f).)

At the beginning of the hearing, the court indicated that the issues before it were whether Jamie should be placed with William or Ming and if Jamie was placed with William, whether Ming should be allowed unsupervised visitation. During closing argument, Kang argued that Ming did not receive reasonable services and visitation should be unsupervised. On the issue of Jamie's placement, however, counsel stated: "As to the placement of the child to her father, as of this time maybe it is appropriate but I do request that [Ming] be given liberal" visitation. Ultimately, the juvenile court determined that Ming received reasonable services, continued Jamie's placement with William, found Ming had made some progress with her case plan, and required that Ming's visitation be supervised. The court, however, did not address the question of whether returning Jamie to Ming created a substantial risk of detriment to Jamie's well-being.

On appeal, Ming does not challenge the reasonableness of her reunification services; rather, she contends there was insufficient evidence to support the juvenile court's determination that returning Jamie to her custody would create a substantial risk of detriment to the child. Ming also argues that if her claim was waived by her attorney's failure to ask for Jamie's return, that failure amounted to ineffective assistance of counsel. We conclude that Ming waived appellate review of the return issue by failing to ask for custody of Jamie, but we review the issue in the context of an ineffective assistance of counsel claim.

To establish ineffective assistance of counsel, Ming has the burden of proving that her attorney's representation was deficient and that this deficiency resulted in prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) To prove deficient representation, Ming "'must "affirmatively show that the omissions of defense counsel involved a crucial issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." [Citation.]'" (Id. at pp. 98-99.) If the record on appeal does not indicate why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless there simply could be no satisfactory explanation; otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254, disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) We must presume that counsel's conduct fell within the wide range of reasonable professional assistance and can be explained as a matter of sound trial strategy. (People v. Carter (2003) 30 Cal.4th 1166, 1211.)

Ming contends there is no plausible reason or strategy for not requesting Jamie's return because this was one of the primary issues at the hearing, thus making the failure unreasonable and establishing ineffective assistance of counsel on the face of the record. We disagree.

The record before us does not suggest counsel's performance was obviously inadequate, or that there could be no satisfactory explanation for his failure to argue for Jamie's return; rather, the record supports the inference that counsel had a tactical reason for not requesting return. Counsel essentially conceded during closing argument that Ming was not asking for return and focused his argument on the reasonableness of Ming's services, keeping visitation unsupervised and increasing visitation. Counsel could reasonably have concluded that because Jamie was undisputedly doing well in William's custody, the juvenile court would not uproot her and change custody to Ming. Thus, counsel had good reason for focusing on the issues in which Ming had a reasonable probability of prevailing. Accordingly, Ming's ineffective assistance claim lacks merit.

III. Reverting Ming to Supervised Visitation

At trial, the social worker admitted that the Agency did not know who caused Jamie's injuries and that Ming's position as Jamie's primary caregiver did not mean she was the only person who could have caused the injuries. Ming had been compliant with the case plan and the court orders and attended weekly therapy. During the two to three months that Ming had unsupervised visits with Jamie, the Agency had no indication that she would somehow injure Jamie and the social worker admitted that the Agency did not have any concrete evidence showing Ming posed a risk to Jamie if she had unsupervised visits, but stated this was a "possibility."

The social worker also admitted that Ming's supervised visits with Jamie went "okay" and her "only concern" was the fact Ming did not let Jamie walk or play on her own and insisted on holding her hand. Although Ming explained to the social worker that she held Jamie's hand because she was concerned about Jamie falling and hurting herself, the social worker concluded that Ming did not know what to expect from a normal 19 month-old and that children learning to walk fall all the time.

Visitation is critical to promoting a parent's interest in the care and management of his or her children, even if actual physical custody is not the outcome of the proceedings (In re Luke L. (1996) 44 Cal.App.4th 670) and visits between the noncustodial parent and a dependent child should be "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A).) The Agency argues that it based its initial recommendation for unsupervised visitation on the erroneous assumption that Ming was progressing in therapy and that the juvenile court's order changing Ming back to supervised visitation was not an abuse of discretion for the very reasons that it was also appropriate for the juvenile court to find that returning Jamie to Ming would create a substantial risk of detriment.

We note that the juvenile court did not find that returning Jamie to Ming would create a substantial risk of detriment; rather, it never addressed this issue and changed Ming's visitation to supervised, explaining it wanted to be more comfortable that Ming "[understood] developmentally appropriate behaviors for children." Apparently, the court interpreted Ming's overprotectiveness as an indication that she did not understand developmentally appropriate behaviors for her child.

Even assuming this finding is correct, and that the Agency initially recommended unsupervised visitation based on erroneous information, Ming had unsupervised visitation with Jamie for up to eight hours per week for a number of months without any problem. Ming's alleged lack of knowledge of "developmentally appropriate behaviors" thus did not place Jamie at risk, as established by Ming's ability to appropriately care for Jamie during her unsupervised visitation period.

Critically, the social worker complained that Ming was overprotective, not that she was negligent, indifferent or reacted inappropriately to Jamie's behavior. In fact, we find it ironic that the social worker criticized Ming for "hovering" over Jamie when, in November 2005, Jamie apparently fell while at day care and fractured her right leg. We can only imagine the social worker's reaction had this injury occurred during a visit with Ming. Further, although the social worker argued below that Ming's visitation should be changed to supervised because she continued to blame William for Jamie's injuries and had changed her story about William not visiting Jamie for a month, the Agency did not pursue these arguments on appeal. In any event, Ming has always maintained that William caused Jamie's injuries and her changed story, while hurting her credibility, does not establish that she is unable to care for Jamie without supervision.

As aptly put by another court, "[w]e are looking for passing grades here, not straight A's." (David B. v. Superior Court (2004) 123 Cal.App.4th 768, 790.) While Ming may never be an ideal parent with detailed knowledge of appropriate behaviors at each stage of Jamie's development, her therapist concluded that she displayed an adequate ability to parent Jamie and possessed a conscientious awareness of Jamie's

needs. Ming's evaluating psychologist concluded that her clear goal was to be a good mother and that she did not pose a danger to Jamie due to neglect or indifference, but that she was poorly equipped to deal with the demands of social workers based in part on cultural and language difficulties. On this record, we conclude that the juvenile court abused its discretion in requiring that visitation be supervised because substantial evidence did not support its implied conclusion that Jamie's well-being was at risk if her visits with Ming remained unsupervised.

DISPOSITION

We reverse the juvenile court's December 1, 2005 orders insofar as they required Ming's visitation be supervised, and affirm the orders in all other respects. We remand the matter to the juvenile court with directions to vacate the orders insofar as they require supervised visitation and enter new orders providing that Ming's visitation is to be unsupervised. The stay issued by this court on July 6, 2006, is vacated.

McINTYRE, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.

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