Filed 7/24/17 In re Lucy M. CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re LUCY M., a Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

NIKKI D.,

Defendant and Appellant.



G054619

(Super. Ct. No. 16DP0736)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, and Karen Christensen, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
INTRODUCTION
The only issue in this appeal is whether a Marsden hearing should have been held at the conclusion of a permanency planning hearing under Welfare and Institutions Code section 366.26. Nikki D., the mother of minor Lucy M., has appealed from the order terminating her parental rights, asserting that she should have had a Marsden hearing after she expressed dissatisfaction with her court-appointed counsel. She contends the failure to hold this hearing warrants reversal of the order.
We affirm the order. Nikki waited too long to complain about her lawyer. And even if the court should have stopped, held a Marsden hearing, and appointed new counsel for her, Nikki was not prejudiced. The proceedings were over, and there was nothing a new attorney could have done going forward.
FACTS
Because the only issue in this appeal is Nikki’s entitlement to a Marsden hearing, an abbreviated recitation of the facts suffices as background.
Garden Grove police officers picked Lucy up on July 8, 2016, after receiving reports of a child wandering about unsupervised in an apartment complex, asking for food and clothes. Lucy was a month shy of her sixth birthday. Nikki was arrested for being under the influence of drugs while being the sole caretaker of a child. Nikki told the arresting officer that she had used methamphetamine every day for the past 10 or 11 years.
At the time, Lucy’s father was nowhere to be found. In October 2016, the Orange County Social Services Agency (SSA) located him in jail. Both Nikki and Lucy’s father have extensive criminal histories. In Nikki’s case, most of the convictions were drug-related.
Lucy was taken to Orangewood, where she was discovered to have a urinary tract infection. She was then sent to Garden Grove Hospital for treatment. Shortly afterward, she was placed with Nikki’s brother and family in Redlands.
The detention hearing took place on July 13, 2016. Custody was vested in SSA, and Nikki was granted four hours of monitored visitation. At a team decision meeting the day before, Nikki had told those present about the voice, which she named Manuel, that talked to her all day, every day, and told her to do bad things.
Nikki disappeared after the detention hearing. As of the jurisdiction hearing on August 31, she still had not turned up. She failed to appear at the disposition hearing on September 22, 2016, and she had not visited Lucy since July. The court bypassed services for both parents and set a termination of parental rights hearing for January 17, 2017.
Nikki reappeared at a meeting with SSA on November 8. She told the social worker she had been in jail. The social worker became very concerned about Nikki’s mental state, as she was making bizarre statements. For example, she told the social worker she had seen her brother John (who was deceased) in her (Nikki’s) stomach when he was aborted, but then God placed him inside her mother, who had him by cesarean section. When the social worker observed that if John had been aborted, he was not alive, Nikki responded that he was alive “by the power of God.” She also reported that she was living on the street and using drugs.
Nikki visited Lucy for the first time since July on November 14. Nikki was 20 minutes late. She began the visit by asking Lucy how her (Lucy’s) brother was. Lucy asked, “What brother?” When Lucy stated she was living with her uncle, Nikki asked, “What uncle?” Nikki continued to make remarks that distressed Lucy, telling her, for example, that she (Nikki) was pregnant and that Lucy had a brother and a sister. At one point, Lucy implored her to “[j]ust stop acting weird!” Nikki left the visit 45 minutes early.
The permanency planning hearing took place on January 30, 2017. The social worker and Nikki testified. Nikki’s testimony indicated some disquieting mental processes. When asked how many children she had, she replied, “I have one and my aborted child. I’m still trying to find him. Because I had an abortion and somebody tricked me into having an abortion so they can take my unborn child and make him into God’s child, I guess for the military. [¶] They said that his life is to be sacrificed to serve people and their desires or needs because of baby trafficking, human trafficking.” She also claimed that a person at Orange County Behavioral Health in Anaheim told her she did not need a therapist. “I do not have a mental health problem.”
Testimony and argument were concluded, with SSA’s counsel stating that she had no rebuttal. At this point, Nikki spoke up, saying “I do have a place to live, I’m not homeless and there’s nothing wrong with me being a mother to my child. [¶] . . . [¶] You haven’t told me anything worthy why I can’t be a mom to my child.” At this point, the court called a recess and broke for lunch so that Nikki could speak with her attorney.
When trial resumed after lunch, the court began making the findings required at the permanency hearing when Nikki’s counsel interrupted. He stated, “I’d like the record to reflect that prior to testimony in this hearing, [Nikki] did mention that she was considering requesting a new attorney. [¶] We spoke further about that and she agreed to move forward with the hearing and at the conclusion of the hearing, prior to the court – prior to going to lunch, that is, she stated that she would like to request a new attorney and I discussed it with her briefly when lunch started and we came back at 1:30. [¶] Now she continues to request a new attorney, and so I make that representation to the court that [Nikki] would like to have a new attorney moving forward.” The court then asked Nikki why she was making the request, and she replied, “Because he’s not representing me like how I would like him to because there’s no reason why –” The court then stated, “At this point in time the court is going to deny the request, to even consider the request because the court believes it is untimely. [¶] The court has heard evidence, including [Nikki’s] testimony, and argument from the attorneys. The court doesn’t believe it’s in Lucy’s best interest to delay these proceedings any further to hear [Nikki’s] request, so it’s denied.” The court then proceeded to terminate both parents’ parental rights. Only Nikki has appealed from the January 30 order.
DISCUSSION
The sole issue identified on appeal is whether the court should have held a Marsden hearing on Nikki’s request for new counsel.
“In a criminal case, when a defendant requests substitute appointed counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current appointed counsel is not adequately representing him. [Citation.] Juvenile courts, relying on the Marsden model, have permitted the parents, who have a statutory and a due process right to competent counsel, to air their complaints about appointed counsel and request new counsel be appointed. [Citations.]” (In re V.V. (2010) 188 Cal.App.4th 392, 398.) The request for a Marsden hearing must, however, be timely. “The court was not required to stop the nearly completed proceeding in its tracks in order to allow another attorney to completely familiarize himself with the case.” (People v. Whitt (1990) 51 Cal.3d 620, 659; see In re M.P. (2013) 217 Cal.App.4th 441, 460 [state has interest in resolving child’s status without delay].)
In this case, Nikki waited until the trial was over and the court had begun to issue its ruling before raising any complaint about her counsel. She had, according to the record, entertained these doubts before the trial started, but chose to wait until it was completed to voice them. She gambled that the hearing would turn out favorably, and when it became plain that it would not – either at the hearing itself or after discussing it with counsel during lunch – she resorted to impugning her attorney. This is simply grasping at straws in an effort to delay the inevitable.
We believe the court’s refusal of a hearing was proper. But even if the court should have held a Marsden hearing and even if the court should have provided Nikki with new counsel as a result, that would not end the inquiry. Nikki would have to show that these purported errors prejudiced her. In other words, the question would be whether the outcome would have been more favorable to Nikki if she had had new counsel? (See In re M.P., supra, 217 Cal.App.4th at p. 460 [even if Marsden hearing held, more favorable outcome not reasonably probable]; In re Z.N. (2009) 181 Cal.App.4th 282, 296 [outcome not more favorable if Marsden hearing held]; People v. Washington (1994) 27 Cal.App.4th 940, 944 [no showing that motion would have been granted or more favorable result would have been achieved if motion granted].)
The answer is clearly no. The trial was over, and the court had begun to rule. All a new attorney could have done was to sit quietly while the court issued its decision. As the court stated in People v. Smith (1993) 6 Cal.4th 684, 695, “Whenever the motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future.” There was no “future” for Nikki, except to appeal, and she has different counsel on appeal. With her rights terminated, she is effectively out of the case going forward. The appointment of new counsel could have made no difference in the outcome of the hearing.


DISPOSITION
The order terminating Nikki D.’s parental rights is affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.