In re Adam V.

Filed 10/20/06 In re Adam V. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

Manuel V., father of the minor, appeals, in propria persona, from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)^[1] Appellant seeks an opportunity to reunify with the minor contending that he complied with all the plan requirements except for those he was financially unable to complete. Appellant also argues the court erred in failing to grant his request for new counsel and that the San Joaquin County Human Services Agency (HSA) failed to consider his relatives for placement. We shall affirm.

FACTUAL BACKGROUND

HSA removed the newborn minor from parental custody in November 2003 due to appellant’s domestic violence and history of substance abuse and because both the minor and the mother tested positive for methamphetamine and phencyclidine (PCP) when the minor was born. Appellant, who had recently been released from custody on domestic violence charges, continued to live with the mother although it meant that the minor’s siblings were unable to return home.

The disposition report stated that no relatives had come forward to be assessed for placement. Appellant’s case plan included parenting classes, visitation, substance abuse treatment and participation in Drug Court, testing, attendance at a 12-step program and domestic violence counseling. Appellant was currently visiting and testing, however, due to financial issues, he was unable to enroll in the substance abuse program. At the dispositional hearing in March 2004, the court returned the minor to the mother under HSA supervision.

According to a status review report in May 2004, appellant had moved out of the home in April but neither he nor his relatives had visited the minor since. Prior to April 2004, appellant had been close to finishing several of the reunification plan objectives but had not contacted the social worker since moving out.

A second status review report six months later stated appellant had not had contact with the minor since March 2004, and none of his relatives had come forward to be assessed for placement or to visit. By the review hearing in February 2005, appellant was located in custody.

A few days after the review hearing, the minor was again removed from the mother’s custody on a supplemental petition due to her ongoing PCP abuse. Shortly thereafter the court suspended appellant’s visits. Service logs attached to the jurisdiction report for the supplemental petition stated that appellant was in custody and wanted to visit with the minor and have his sister considered for placement. The service log indicated appellant had provided inadequate information for such a placement to occur. The service log further indicated that appellant had disclosed health issues and that the minor was unable to meaningfully participate in visits at the jail. The court sustained the supplemental petition.

The disposition report of May 2005 stated that appellant had recently been released from jail and was again involved in the case. Appellant was briefly in a residential treatment program but left after refusing a drug test. He was expected to enter another program shortly. The report recommended termination of services. At the hearing in July 2005, the court adopted the recommendation and set a section 366.26 hearing to select a permanent plan for the minor.

Appellant filed a petition for modification (§ 388) seeking custody of the minor and alleging he had completed the case plan. Appellant provided evidence he had completed the anger management program, was in phase II of his substance abuse treatment program, was attending Alcoholics Anonymous and had housing since he was sharing the mother’s residence. A letter from the substance abuse program stated appellant was struggling to complete the program while also working but was showing progress. The court denied the section 388 petition for modification, citing appellant’s failure to complete the drug treatment program.

The November 2005 assessment for the section 366.26 hearing stated appellant was no longer living with the mother. The report concluded the minor was adoptable and indicated an adoptive home would soon be found. The report further stated that, while appellant had completed part of his service plan, over the last 30 years he had been in and out of jail and state prison and could not provide stability for the minor.

At the section 366.26 hearing in January 2006, appellant told the court he wanted a new attorney. The court held a Marsden hearing.^[2] Appellant’s primary complaint was that his attorney was too busy to give the time that appellant felt was necessary to the case and to aggressively represent him. Counsel responded that he had not heard from appellant recently and then had to be out of town, but had filed the petition for modification and was ready to proceed with the section 366.26 hearing. The court denied the Marsden motion finding appellant was adequately represented.

When the hearing resumed, appellant testified he had visited the minor weekly for the last 12 months, although visits had recently been changed to monthly and he had been denied some visits. He testified he had a close relationship with the minor and the minor remembered things from their early relationship. Appellant was candid about his prior incarcerations and told the court he could not change his past but that he had changed and wanted an opportunity to raise his child. The court found the minor was likely to be adopted, and there would be no detriment to the minor in terminating parental rights.

DISCUSSION

I

Appellant contends the juvenile court erred in denying his Marsden motion.

In a criminal case, when a defendant requests substitute counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current counsel is not adequately representing him. (Marsden, supra, 2 Cal.3d at pp. 123-124.) The court need not grant the request for substitution of counsel absent a showing that denial would substantially impair the defendant’s right to the assistance of counsel. (Id. at p. 123; People v. Turner (1992) 7 Cal.App.4th 913, 917.)

In a dependency proceeding, the parents have a statutory and a due process right to competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150, 1153, fn. 6.) When counsel is appointed, the parents must have some mechanism for challenging the representation when they perceive inadequacy or the right to counsel is meaningless. Thus, juvenile courts, relying on the Marsden model, have permitted the parents to air their complaints about current counsel and request appointment of new counsel. An exhaustive Marsden hearing is not required in a dependency action. It is only necessary that the juvenile court “make some inquiry into the nature of the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.)

Here the juvenile court did make the required inquiry; however, appellant’s expressed dissatisfaction with counsel did not identify any ineffective assistance of counsel or signal a complete breakdown in communication. Appellant was certainly unhappy that counsel did not have more time for him, but counsel had brought an appropriate motion, argued for the minor’s return and was prepared to go forward with the contested section 366.26 hearing. The court did not err in denying appellant’s Marsden motion.

II

Appellant argues the court erred in failing to return the minor to him.

Construing the challenge to either the orders made at the dispositional hearing on the supplemental petition in July 2005, or the denial of his petition for modification in October 2005, the issue was forfeited by appellant’s failure to bring a timely petition for writ review or file a timely notice of appeal. (§ 366.26, subd. (l); In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.) As to the section 366.26 hearing, return of the minor is not at issue, only the selection of a permanent plan. (§ 366.26; In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)

III

Appellant argues the HSA did not consider his relatives for placement of the minor.

“In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a), italics added.)

Although appellant requested placement with his sister, at no time during the course of the dependency did any paternal relative request placement or even visitation. Thus, the social worker never had enough information about any paternal relative to consider factors such as the nature and duration of the relationship between the minor and the relative and the relative’s ability to provide a safe, secure home for the minor. (§ 361.3, subd. (a)(1)-(8).) Without a request upon which the social worker could act, relative placement was impossible. No error appears.

DISPOSITION

The orders of the juvenile court are affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P. J.

RAYE , J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] Undesignated statutory references are to the Welfare and Institutions Code.

^[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).