Filed 2/17/15 T.W. v. Superior Court CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO



T.W.,

         Petitioner,                                                     E061926

v.                                                                       (Super.Ct.No. J246857)

THE SUPERIOR COURT OF                                                    OPINION
SAN BERNARDINO COUNTY,

         Respondent;

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; Petition for extraordinary writ. Lynn M. Poncin

and Christopher B. Marshall, Judges. Petition denied.

         Law Offices of Vincent W. Davis & Associates and Vincent W. Davis for

Petitioner.

         No appearance for Respondent.




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       Jean-Rene Basle, County Counsel, and Adam E. Ebright, Deputy County Counsel,

for Real Party in Interest.

       Petitioner T.W. (mother) filed a petition for extraordinary writ pursuant to

California Rules of Court, rule 8.452, challenging the juvenile court’s order setting a

Welfare and Institutions Code1 section 366.26 hearing. She contends that the court

abused its discretion in denying her request for substitution of attorneys under People v.

Marsden (1970) 2 Cal.3d 118 (Marsden). On December 22, 2014, on the court’s own

motion, we stayed the Welfare and Institutions Code section 366.26 hearing pending

further order. We hereby lift the stay. Furthermore, we deny mother’s writ petition.

                   FACTUAL AND PROCEDURAL BACKGROUND

       On November 16, 2012, the San Bernardino County Children and Family Services

(CFS) filed a section 300 petition on behalf of mother’s son, Z.W. (the child). The

petition alleged that the child came with the provisions of section 300, subdivisions (b)

(failure to protect) and (g) (no provision for support). The petition included the

allegations that mother had failed to protect her children2 from exposure to domestic

violence, that mother had substance abuse issues and a criminal history, and that mother

had an unstable, unsafe lifestyle. The petition was later amended to include an allegation



       1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise noted.

       2 We note that the petition allegations allege that mother failed to protect her
children. However, only one of mother’s children, the child, is the subject of the current
writ.


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under section 300, subdivision (j) (abuse of sibling), due to burn injuries that mother’s

child, J.V., sustained while in her care.

       The court held a detention hearing on November 19, 2012, and detained the child

in foster care.

       Jurisdiction/Disposition

       The social worker filed a jurisdiction/disposition report on December 7, 2012,

recommending that the court sustain the petition, and that mother be provided with

reunification services. However, on December 19, 2012, the court continued the hearing

to allow more time to complete notice. The matter was further continued on January 9,

2013 and January 17, 2013.

       On January 18, 2013, mother filed several documents with the court, in propria

persona, including a document entitled “objections and corrections to the social worker

report of Eleanor Garces.” Another document, that was received by the court on January

22, 2013, was entitled “cease and desist letter.” This letter was apparently written to

inform her counsel that she was not pleased with her representation at the hearing on

January 17, 2013. Mother complained that no one “spoke up for me our children [sic],”

and she asked her counsel to “cease and desist all road blocks that would intercept [her]

right as a United States Citizen that would trump [her] ability to excerpt [sic] [her]

freedom of speech and prove [her] innocence.” She further asked her counsel to “cease

and desist any silence that would thwart [her] case.”

       On January 22, 2013, the court held a further pretrial settlement conference, at

which mother requested a Marsden hearing. The court excused all parties from the


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courtroom, except mother and her counsel. The court began the hearing by asking

mother what her counsel had done, or not done correctly. Mother did not answer the

question directly, but expressed that her counsel could “only go so far in her position as

being a public defender” and that she felt she needed to get “a paid lawyer.” Mother

added that she really needed help, that she really wanted her children back, and that the

court and her counsel should recognize “[t]he way [her] kids was [sic] disposed from

[her] house . . . and the remarks that were said to [her] while they were being removed.”

Mother went on to talk about one of her sons, as well as how stressed she had been since

her children were taken away. Mother addressed her counsel and said she felt like she

should “fight a little harder for [her].” Mother then said she thought she should hire a

lawyer. The court told mother that her counsel was well versed in juvenile law and could

help her. Mother’s counsel interjected that she and mother were having problems

communicating. Mother said she had been in contact with another attorney, for a

consultation. The court concluded there was no evidence of an irreconcilable conflict,

but said there was a communication issue. Mother’s counsel asked the court to grant the

motion, since mother had filed the cease and desist letter, was seeking advice from other

attorneys, and was not accepting her advice. The court stated the letter just reflected that

mother wanted to spend more time talking with counsel about the welfare of her children

and her parental rights. Mother agreed, stating, “That’s it. That’s all I want.” Mother

added that she was not upset, but scared and confused. The court found that there were

no irreconcilable differences, told counsel that she and mother needed to communicate

better, and denied the motion.


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       A contested jurisdiction/disposition hearing was held on April 17, 2013. The court

found J.B. (father) to be the presumed father of the child.3 The court sustained the

petition, declared the child a dependent, and ordered mother and father to participate in

reunification services. The court also ordered supervised visits one time a week.

       Six-month Status Review

       The social worker filed a six-month status review report on October 7, 2013. The

social worker reported that mother’s whereabouts were currently unknown, and she had

failed to complete her case plan activities. Mother was given referrals to parenting

education and substance abuse treatment, but did not enroll in either. She did enroll in

individual counseling, but was discharged for nonparticipation. Mother had not

maintained contact with the child. She also failed to maintain regular contact with the

social worker. The social worker attempted to contact her by telephone and in writing,

but mother did not respond. Nonetheless, the social worker recommended that the court

continue her services. At the hearing on October 17, 2013, the court continued the child

as a dependent and continued mother’s services.

       12-month Status Review

       The social worker filed a 12-month status review on January 10, 2014,

recommending that mother’s services be terminated and that a section 366.26 hearing be

set. The social worker reported that mother’s whereabouts were unknown until

December 2013, when she went to the CFS office to report that she had moved. She did


       3   Father is not a party to this writ.


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not provide an address. The social worker further reported that mother had not

participated in services.

       At a 12-month review hearing on February 4, 2014, the court found that mother

had failed to participate regularly and make substantive progress in her case plan. The

court thus terminated her reunification services.

       On September 11, 2014, the court terminated father’s reunification services and

set a section 366.26 hearing.

       On September 22, 2014, mother filed a notice of intent to file a writ petition.

                                        ANALYSIS

             The Juvenile Court Properly Denied Mother’s Marsden Motion

       Mother contends that the court abused its discretion in denying her Marsden

motion for new counsel and claims that she was prejudiced by such denial. We

disagree.4

       “When a defendant seeks to discharge his appointed counsel and substitute another

attorney, and asserts inadequate representation, the trial court must permit the defendant

to explain the basis of his contention and to relate specific instances of the attorney’s

inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly

shows that the first appointed attorney is not providing adequate representation [citation]

or that defendant and counsel have become embroiled in such an irreconcilable conflict

       4  Real party in interest initially argues that mother failed to file a timely writ
petition, since the issues in her writ only concern the denial of her Marsden motion, 20
months prior. We note that this court granted mother’s request for an extension to file
her writ petition.


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that ineffective representation is likely to result.” (People v. Crandell (1988) 46 Cal.3d

833, 854 (Crandell).) “Once a defendant is afforded an opportunity to state his or her

reasons for seeking to discharge an appointed attorney, the decision whether or not to

grant a motion for substitution of counsel lies within the discretion of the trial judge. The

court does not abuse its discretion in denying a Marsden motion ‘“unless the defendant

has shown that a failure to replace counsel would substantially impair the defendant’s

right to assistance of counsel.”’” (People v. Clark (2011) 52 Cal.4th 856, 912.)

       In the instant case, the trial court did not abuse its discretion in denying mother’s

request for substitution of counsel. The court provided mother with an ample opportunity

to air her complaints. The record shows that the court began by asking her what she

believed her counsel had done, or not done correctly. Instead of pointing to any

examples of counsel’s inadequate performance, mother expressed that she really needed

help and she really wanted her children back. She also complained about how stressed

she was, how the court should recognize the way her children were taken from her, and

how she felt that her counsel should fight harder for her. Mother expressed that she was

not upset, but scared and confused. Once the court surmised that mother wanted to spend

more time talking with her counsel about the welfare of her children and her parental

rights, mother agreed and stated, “That’s it. That’s all I want.” Accordingly, the court

reasonably concluded that there was no irreconcilable conflict, such that ineffective

representation was likely to result. (Crandell, supra, 46 Cal.3d at p. 854.) The court

properly determined that substitution was not warranted.




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      Mother further claims that she was prejudiced by the court’s failure to grant her

Marsden motion. However, she merely asserts that if she had been awarded new counsel,

“there is a reasonable probability that a more favorable outcome would have been

reached.” The record shows otherwise. Mother was provided with reunification services,

but failed to comply with her case plan. Her whereabouts were unknown during much of

the dependency, and she failed to maintain contact with the social worker or the child.

The court terminated reunification services because mother had failed to participate

regularly and make substantive progress in her case plan. A substitution of attorneys

would not have resulted in a more favorable outcome in mother’s case.

                                     DISPOSITION

      The writ petition is denied.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                                          J.


We concur:


RAMIREZ
                       P. J.


McKINSTER
                          J.




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