Filed 7/12/21 R.I. v. Superior Court CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
R.I., B309756
Petitioner; Los Angeles County
v. Super. Ct. No.
18CCJP03928
SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT CHILDREN
AND FAMILY SERVICES et.
al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS IN MANDATE; petition for
extraordinary writ. Martha A. Matthews, Judge. Petition denied.
Los Angeles Dependency Lawyers; Law Office of Thomas
Hayes, Dominika Campbell and Charlie Chin for Petitioner.
Law Office of Amir Pichvai and Amir Pichvai for Real Party
in Interest Los Angeles County Department of Children and
Family Services.
Children’s Law Center, CLCLA2 and Stacey Hendrix for
Real Parties in Interest R.I., Jr., I.I., and B.I.
No appearance for Respondent.
INTRODUCTION
In his petition for extraordinary writ, petitioner R.I.
(father) argues the juvenile court erred by: (1) denying his
request for a continuance of the twelve-month status review
hearing concerning his three sons, R.I., Jr., I.I. and B.I., to hold a
hearing under People v. Marsden (1970) 2 Cal.3d 118 (Marsden);
and (2) terminating his reunification services and setting a
permanency planning hearing for each of his children under
Welfare and Institutions Code1 section 366.26. As discussed
below, we disagree with his contentions and deny the petition.
BACKGROUND
Father and A.N. (mother)2 have three children together:
R.I., Jr. (R.I.), I.I., and B.I. When this case was initiated in May
2018, R.I. was six years old, I.I. was five years old, and B.I. was
two months old.
In May 2018, the Department of Children and Family
Services (Department) received a referral alleging the children
were being neglected by their parents. The reporting party stated
she had heard from her neighbors that the family was homeless
and sleeping in their car. They had parked the car in front of her
apartment building for the last 10 months to one year. She
related “‘the family spends all day parked in the parking lot of
her building[,]’” both parents “‘drink and smoke marijuana daily
while caring for the children[,]’” and the “‘parents do not tend to
the children.’”
1 All undesignated statutory references are to the Welfare
and Institutions Code.
2 Mother is not a party to the petition.
2
In August or September 2018, father was arrested and
charged with stealing a vehicle. Father denied the allegations
leading to his arrest.
In September 2018, the juvenile court sustained an
amended petition filed under section 300, subdivision (b)(1) by
the Department on the children’s behalf, and as to which the
parents had pled no contest. In so doing, the juvenile court found
true the Department’s allegations that the children were at risk
of harm due to the parents’ marijuana use, “which renders [them]
incapable of providing the children with regular care and
supervision[,]” and their “failure . . . to seek out appropriate
medical and educational related services for the children[.]” The
children were released to their parents under Department
supervision. Father’s court-ordered case plan required him to
participate in weekly drug testing when released from custody,
parenting classes, family preservation services, and individual
counseling.
During the first six-month review period, father did not
participate in court-ordered services while in custody, as
educational programs were not available to him. He was released
from custody on bond on December 25, 2018, and informed the
Department of his release on January 9, 2019. A little over a
week later, a Department social worker gave father a copy of his
court-ordered case plan, reviewed the plan with him, and
provided him with referrals for all required services. He was
given another copy of his case plan and further referrals on
February 7, 2019. On February 15, 2019, he enrolled in a
substance abuse treatment program. Four days later, however,
his bond was revoked and father was reincarcerated.
3
At the six-month review hearing held under section 364 in
March 2019, the juvenile court found continued jurisdiction was
necessary and the parents’ case plans remained necessary and
appropriate. It therefore ordered the Department to provide
further family maintenance services.
In June 2019, the Department filed a supplemental petition
under section 387 on behalf of all three children, alleging their
prior placement was ineffective for their protection. Specifically,
the petition alleged the children were at risk of serious physical
harm due to: (1) mother’s failure to comply with her case plan
and failure to ensure they received necessary medical, mental
health, and Regional Center services; and (2) father’s failure to
comply with his case plan.
At the adjudication hearing on the supplemental petition
held on July 16, 2019, the petition was amended by interlineation
and, among other revisions, the allegations pertaining to father
were stricken. The parents pled no contest to the amended
petition, which the juvenile court sustained. The juvenile court
removed all three children from father, who was granted
reunification services. While the juvenile court removed R.I. and
I.I. from mother, B.I. was returned to her care under Department
supervision. Father’s court-ordered case plan required him to
participate in weekly drug testing upon his release from custody,
a parenting class for special needs children, and individual
counseling. Father was also granted monitored visitation, which
was to be initiated when he was released from custody.
On July 23, 2019, father was sentenced to 16 years in state
prison for second degree robbery. His anticipated release is
sometime in 2031, which is when he will be eligible for parole.
Father was originally housed in North Kern County State Prison
4
located in Delano. Sometime between October 2019 and January
2020, he was transferred to California State Prison, Sacramento
located in Represa.
In October 2019, the Department filed a second
supplemental petition under section 387 solely on B.I.’s behalf.
The petition alleged B.I.’s previous disposition was ineffective for
his protection, as mother continued to abuse marijuana, which
“render[ed] [her] incapable of providing [him] with regular care
and supervision[,]” and failed to submit to drug testing or enroll
in a substance abuse treatment program as required by her
court-ordered case plan. The petition further alleged that a week
before it was filed, mother left B.I. with his maternal
grandmother at her home without making proper arrangements
for his care and supervision, and had yet to resume caring for
him.
The second supplemental petition was adjudicated in
January 2020. There, the juvenile court sustained the second
supplemental petition as pled, removed B.I. from both parents,
and ordered the Department to provide reunification services to
both parents.
On the same date it addressed the second supplemental
petition, the juvenile court also held the six-month review
hearing pertaining to R.I. and I.I., as required under section
366.21, subdivision (e). It found continued jurisdiction was
necessary, and that the parents had not made substantial
progress in addressing the circumstances necessitating their two
oldest children’s placement in foster care. It granted the parents
reunification services for an additional six months.
On September 21, 2020, the juvenile court held the twelve-
month review hearing for R.I. and I.I. as required under section
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366.21, subdivision (f), and the six-month review hearing for B.I.,
as required under section 366.21, subdivision (e).3 At the
beginning of the hearing, however, the court acknowledged the
Department filed its status review report late. Father’s counsel
requested a continuance of 30-45 days in order to review the
report with father and proceed accordingly. The juvenile court
granted the request and continued the hearing to November 3,
2020.
At the November 3, 2020 twelve-month review hearing for
all three children under section 366.21, subdivision (f), father’s
counsel asked for another continuance, as the notice of hearing
was sent to an incorrect address for father. Given the
Department’s recommendation to terminate father’s reunification
services as to all three children, the court granted the request for
a continuance and reset the hearing for December 18, 2020.
On December 18, 2020, the Department submitted a last
minute information (LMI) to the court after father did not call in
to the hearing by phone despite arrangements having been made
to do so. In the LMI, the Department social worker noted she
spoke to a counselor at father’s correctional facility, who had
frequent contact with him. The counselor related that when he
spoke to father about the December 18, 2020 hearing on
December 3, 2020, “father stated that he did not want to
participate unless he was able to hire his own private attorney
prior to the hearing taking place. He stated that he had a bad
experience with his [c]ourt appointed attorney, and did not feel
3 The review hearings were initially set for July 20, 2020. In
May 2020, however, the juvenile court continued the hearings to
September 21, 2020 due to concerns over the COVID-19
pandemic and the state of emergency declared by the Governor.
6
comfortable proceeding with the attorney that had been assigned
to him.” The counselor reported that when he followed up with
father about a week later, “father stated that he had not made
any progress with hiring his own attorney, and still did not plan
to participate in the hearing if he was not able to do so in time.”
Shortly thereafter, the counselor “confirmed father had refused to
call in to participate in the hearing[.]”
Subsequently, at the December 18, 2020 hearing, father’s
counsel requested a third continuance on the grounds that: (1)
father did not sign a written waiver of appearance for the
hearing; and (2) the information in the LMI “might warrant a
Marsden hearing,” which required father to be present. The
juvenile court denied the request and proceeded with the review
hearing. Ultimately, after hearing argument, the court
terminated family reunification services for both parents and set
a permanency planning hearing under section 366.26 for all three
children.
DISCUSSION
I. Denial of Request for Continuance to Conduct
Marsden Hearing
Pursuant to section 352, subdivision (a), the juvenile court
“may continue any hearing . . . beyond the time limit within
which the hearing is otherwise required to be held[.]”
“Continuances shall be granted only upon a showing of good
cause,” and if it would not be “contrary to the interest of the
minor.” (§ 352, subd. (a)(1) & (2).) “We review the denial of a
continuance for abuse of discretion. [Citation.]” (In re Giovanni F.
(2010) 184 Cal.App.4th 594, 605.)
7
Father argues the juvenile court abused its discretion by
denying his counsel’s request to continue the December 18, 2020
hearing to hold a Marsden hearing, as both requirements of
section 352, subdivision (a) were met in this case. Specifically, he
contends: (1) his entitlement to a Marsden hearing constituted
good cause for a continuance; and (2) granting a continuance
would not have been contrary to the children’s interest because
“the path to permanency desired for the children by the
Department was only in the beginning stages, as a search was
still to be initiated to find an adoptive home.”
As discussed below, we conclude father did not establish
good cause for a continuance as required under section 352
because, on the record in this case, the juvenile court was not
required to conduct a Marsden hearing. Consequently, we
conclude the court did not abuse its discretion by declining to
grant a continuance.
“The legal principles governing a Marsden motion are well
settled. ‘“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.] . . . .”
[Citations.]’ [Citations.]” (People v. Lara (2001) 86 Cal.App.4th
139, 150.) A Marsden hearing is only required, however, “when
[the] defendant requests substitution of appointed counsel[,]” and
“‘when the defendant asserts directly or by implication that his
counsel’s performance has been so inadequate as to deny him his
constitutional right to effective counsel.’ [Citations.]” (Id. at pp.
150-151.) These principles have been applied in juvenile
dependency proceedings. (See In re V.V. (2010) 188 Cal.App.4th
8
392, 398; see also In re James S. (1991) 227 Cal.App.3d 930, 935,
fn. 13; In re Z.N. (2009) 181 Cal.App.4th 282, 289.)
Father contends the juvenile court was required to conduct
a Marsden hearing based on the information in the Department’s
December 18, 2020 LMI. As noted above, the LMI stated that on
December 3, 2020, father told a counselor at his correctional
facility “that he did not want to participate [in the December 18,
2020 hearing] unless he was able to hire his own private attorney
prior to the hearing taking place[,]” as “he had a bad experience
with his [c]ourt appointed attorney, and did not feel comfortable
proceeding with the attorney that had been assigned to him.” A
week later, father informed his counselor that “he had not made
any progress with hiring his own attorney, and still did not plan
to participate in the hearing if he was not able to do so in time.”
Father’s remarks to the counselor at his correctional
facility were insufficient to trigger the juvenile court’s duty to
hold a Marsden hearing. While father vaguely referred to having
a “bad experience” with his court-appointed attorney, he did not
provide, and the record does not otherwise contain, any
information suggesting his discomfort with his attorney stemmed
from concerns about the adequacy or effectiveness of his
appointed counsel’s representation. Nor did father express any
desire for the juvenile court to appoint new counsel to represent
him. Instead, his comments to his counselor unequivocally
demonstrated he desired to retain private counsel. Under these
circumstances, we conclude father did not establish entitlement
to a Marsden hearing. (See People v. Lara, supra, 86 Cal.App.4th
at pp. 150-151.) Accordingly, father failed to demonstrate good
cause for a continuance under section 352, and the trial court did
not abuse its discretion by denying his request to continue the
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December 18, 2020 hearing to hold a Marsden hearing.4 (See In re
Giovanni F., supra, 184 Cal.App.4th at p. 604 [discerning “no
error” where father’s “request [for a continuance to hold a
Marsden hearing] was based on [his] attempt to retain a new
attorney, not on an assertion that his appointed counsel’s
performance was inadequate. [Citation.]”].) Father did not need a
Marsden hearing to hire private counsel. He was always free to
do so.
II. Provision of Reasonable Reunification Services
Father contends the juvenile court erred by terminating his
reunification services and setting a permanency planning hearing
under section 366.26. Specifically, he argues the record lacks
substantial evidence to support the court’s finding that the
Department offered and/or provided him reasonable reunification
services while he was incarcerated. In support, father asserts the
Department did not make reasonable efforts to contact him
throughout the reunification period.
When a parent has been granted reunification services,
“[t]he [D]epartment must make a ‘“‘good faith effort’”’ to provide
reasonable services responsive to the unique needs of each
family. [Citations.]” (Mark N. v. Superior Court (1998) 60
4 Because we conclude the juvenile court did not abuse its
discretion by denying the request for a continuance based on
father’s failure to show good cause as required under section 352,
subdivision (a)(2), we need not consider his arguments regarding
whether a continuance would have been against the children’s
interest under section 352, subdivision (a)(1), or whether the
juvenile court’s denial of the request was harmless.
10
Cal.App.4th 996, 1010 (Mark N.).) “The effort must be made to
provide reasonable reunification services in spite of difficulties in
doing so or the prospects of success. [Citations.]” (Id. at p. 1011.)
In general, “[s]ervices will be found reasonable if the Department
has ‘identified the problems leading to the loss of custody, offered
services designed to remedy those problems, maintained
reasonable contact with the parents during the course of the
service plan, and made reasonable efforts to assist the parents in
areas where compliance proved difficult . . . .’ [Citation.]” (In re
Alvin R. (2003) 108 Cal.App.4th 962, 972-973.) Where a parent is
incarcerated during the reunification period, “the [D]epartment
should, at a minimum, . . . contact[ ] the relevant institutions to
determine whether there [is] any way to make services available
to the [parent]. [Citations.]” (Mark N., supra, 60 Cal.App.4th at p.
1013.)
“The [juvenile] court’s finding reasonable reunification
services had been offered or provided to the [parent] is subject to
review for substantial evidence. [Citations.] We must view the
evidence in the light most favorable to the [D]epartment and
indulge in all legitimate and reasonable inferences to uphold the
order. [Citation.]” (Mark N., supra, 60 Cal.App.4th at p. 1010.)
Under this standard, “[w]hen two or more inferences can
reasonably be deduced from the facts, we are without power to
substitute our own deductions for those of the trial court.” (In re
Cheryl E. (1984) 161 Cal.App.3d 587, 598.)
Father contends the Department’s “sparse contact” with
him and his place of incarceration “f[ell] short of a good faith
effort” to maintain reasonable contact with him during the
reunification period. In considering his argument, we are mindful
that “[i]n almost all cases it will be true that more services could
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have been provided more frequently and that the services
provided were imperfect. The standard is not whether the
services provided were the best that might be provided in an
ideal world, but whether the services were reasonable under the
circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)
As set forth below, the record reflects that under the
circumstances in this case, the juvenile court could properly find
the Department made reasonable efforts to provide father
reunification services. Consequently, the challenged finding is
supported by substantial evidence.
Father was incarcerated during the entire reunification
period, which began on July 16, 2019. Initially, he was housed at
North County Correctional Facility in Saugus. On July 23, 2019,
however, father was sentenced to 16 years in state prison. So far
as we can tell, for all but one week of the reunification period,
father was housed in state prison facilities located outside of Los
Angeles County. As noted above, between July and October 2019,
he was housed at North Kern County State Prison. Sometime
between October 2019 and January 2020, he was transferred to
California State Prison, Sacramento.
The Department social worker assigned to this case
contacted father by letter on September 26 and October 25, 2019.
The record does not reflect father responded to either of these
letters. Subsequently, on December 17 and December 23, 2019,
the social worker contacted the Education Based Incentives
program to gather information regarding whether father was
participating in services while he was incarcerated. The social
worker, however, did not receive any responses to her inquiries.
On February 2, 2020 and May 6, 2020, the social worker
again contacted father by letter at his place of incarceration.
12
Once more, the record does not indicate father responded to
either letter. Then, on June 18, June 24, and June 30, 2020, the
social worker contacted the Education Based Incentives program
to ascertain whether father was participating in services while
incarcerated. Once more, the social worker did not receive any
responses to her inquiries.
In August 2020, the children’s maternal grandmother
informed the Department that father had been having positive
phone visits with the children on the weekends for the last four to
five months. Toward the end of July 2020, however, she reported
she began “having issues with father speaking negatively
about . . . her and mother to the children[,]” and told him to stop
calling “if he could not stop bad mouthing them.” In response, the
Department stated it would “attempt to set up calls between
father” and the children through his older sons’ foster mother to
facilitate further phone visits.
On December 2, 2020, the social worker scheduled a phone
interview to speak with father to discuss his progress in
participating in services while incarcerated. Father, however,
refused to take the phone call. Shortly thereafter, the social
worker contacted father’s counselor at the correctional facility to
inquire about his progress in services. The counselor responded
that he was unable to disclose the information requested, as he
did not have father’s consent to do so. Moreover, on several other
occasions in December 2020, the social worker contacted the staff
at father’s correctional facility to ensure they had the
arrangements in place for father to appear telephonically at the
December 18, 2020 hearing, and to confirm whether he intended
to participate.
13
On this record, and considering the circumstances
presented in this case, we conclude the juvenile court could
reasonably find the Department made reasonable efforts to
contact father and his place of incarceration to ascertain whether
services were available to him. The juvenile court could also
properly find the Department offered reasonable reunification
services by taking steps to facilitate phone visits through the
older children’s foster mother after their maternal grandmother
no longer wanted to monitor the visits, and by ensuring father
could appear telephonically at the December 18, 2020 hearing.
Accordingly, the record contains substantial evidence to support
the court’s finding that the Department offered reasonable
reunification services to father and made reasonable efforts to
maintain contact with him during the reunification period.
14
DISPOSITION
The petition for extraordinary writ is denied. The
temporary stay of the section 366.26 hearing is vacated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
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