(Super. Ct. Nos. J31069, J31070)
The opinion of the court was delivered by: Murray , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
C. E., mother of minors Veronica E. and Alexander E., appeals from the dispositional orders of the juvenile court adjudging the minors dependents and denying her reunification services. (Welf. & Inst. Code, §§ 360, subd. (d), 361.5, subd. (b), 395.)*fn1 Mother contends that the juvenile court erroneously denied her three Marsden*fn2 motions and that she received ineffective assistance of counsel. Mother, who has a long history of alcoholism, also contends that substantial evidence does not support the juvenile court's denial of services under the bypass provisions in section 361.5, subdivision (b)(13). We affirm.*fn3
FACTUAL AND PROCEDURAL BACKGROUND
On March 8, 2004, the Butte County Department of Employment and Social Services (the Department) detained the minors, then ages three and five, because of mother's psychological issues and alcohol abuse. There had also been domestic violence in the home. According to a police report, on February 28, 2004, officers responded to a call regarding an overdose. When they reached the home, mother refused medical attention but admitted she had been drinking and told the officers that she wanted to kill herself. An officer placed her on a "section 5150 hold" and she was admitted to the Butte County Psychiatric Health Facility for a 72-hour evaluation.
On April 12, 2004, the juvenile court sustained section 300 petitions on behalf of the minors and adjudged the minors dependent children. Reunification services, including substance abuse treatment, were provided. Mother maintained sobriety for six months and the minors were returned to her care in December 2004 with family maintenance services. Dependency was terminated on May 23, 2005, after mother had maintained another six months of sobriety.
According to the jurisdiction and disposition reports, on September 12, 2005, mother drank alcohol and took prescription drugs in an attempted suicide. The police were contacted. She was released from the Butte County Jail the following morning.
On September 13, 2005, the police responded to a Chico fire station because fire personnel had been contacted by a woman who requested help. According to the police report, when the responding officer arrived, mother looked at him, grabbed her daughter, and attempted to run away. After the officer stopped mother, she told the officer she had just picked the minors up from school and driven to the fire station to ask for help, although she did not specify the nature of the help she sought. Mother displayed objective symptoms of intoxication. A breathalyzer test later revealed that her blood-alcohol level was 0.24/0.23 percent. She was arrested for public intoxication and violation of her probation.
On December 7, 2005, mother was arrested and incarcerated for public intoxication and violation of probation. According to the police report, officers responded to the home after father requested a welfare check, stating that he had just talked to mother on the phone, that she sounded intoxicated, and that the minors were with her. An officer reported that mother had red, watery eyes, slurred speech, was unsteady on her feet, and smelled of alcohol. She claimed she was not intoxicated and that she only had one beer earlier in the day. She displayed mood swings ranging from calm to crying, screaming and yelling. She was arrested for public intoxication. The minors were left in father's care.
On December 8, 2005, the minors were detained again and new section 300 petitions were filed. The petitions included allegations regarding the December 7, 2005 incident, in which mother had attempted suicide with alcohol and pills, as well as an allegation that mother had been driving while under the influence with the minors in the car. On February 8, 2006, the juvenile court adjudged the minors dependent children and placed the minors with the father with family maintenance services. Dependency was terminated on September 20, 2007, with primary custody to mother (although mother and father were living together).
On November 18, 2007, there was a report that mother was under the influence when she brought Veronica to Enloe Hospital for an abdominal injury reportedly sustained after Veronica fell out of a tree. According to the police report, a hospital staff person observed mother arrive in a vehicle. The police were called. Mother told the officer she had driven Veronica to the hospital. Mother displayed objective symptoms of intoxication. She admitted drinking, but not to excess. After field sobriety testing, the officer arrested mother for driving under the influence. According to the jurisdiction and detention reports, mother's blood-alcohol level was 0.27 percent. Nondetained petitions were planned, but the investigating social worker, Pamela Richards, went on an extended vacation. The petitions were not completed, and the Department took no action with respect to this incident.
On January 10, 2008, police responded to the home on mother's report of domestic violence against her by father. According to the police report, the officers observed that mother had slurred speech, red, watery eyes, and appeared somewhat disoriented. Father told the officers that mother had been drinking for several days and was intoxicated that evening. He explained that mother had been the aggressor. The minors were present. Father was not arrested.
On November 30, 2008, officers responded to a report of attempted suicide. According to the police report, father told the officers that mother had been sober for the "last couple years," but had been drinking for the last two days. According to the disposition report, mother took a handful of pills, along with vodka, in front of the minors. She stated she wanted to kill herself and told the minors that she wanted her body cremated. Mother was transported to the hospital and the police requested an evaluation pursuant to section 5150.
On September 20, 2009, emergency medical technicians responding to a report of an "ill female" went to the hotel where mother, father and the minors lived. According to the police report, mother was thereafter transported to the hospital. The police were dispatched to the hospital when one of the emergency medical technicians reported that mother had been physically assaulted and injured by father. When the officer spoke with mother at the hospital, he noticed a strong odor of alcohol. Mother admitted that she was an alcoholic and was under the influence at the time of the incident. Mother confirmed to the officer that there had been ongoing incidents of domestic violence between her and father, including some earlier that week.
According to the police report, mother told the officer that the most recent incident actually happened on September 18, 2009. She said she noticed $50 missing from her purse, got angry and kicked at father's knee. He deflected the kick and hit her in the eye, causing her to fall between the beds in their hotel room. She claimed to have been unconscious for 15 to 30 minutes. She delayed reporting the incident because she was afraid that father would punish her, but she would not elaborate.
The officer then spoke with father, who denied the allegations. He said mother began yelling at him and he did not know why. She kicked him in the groin, and when she tried to kick him again, he defended himself by pushing her, and she fell to the floor. Later that evening they had another altercation during which mother "popped" him in the face. Father told the officer that mother "drinks a lot." Based on the statements and the injuries the officer observed, the officer determined father was the primary aggressor and arrested him.*fn4
On September 21, 2009, mother failed to pick up the minors, then ages nine and 11, from school. The minors waited for over an hour and, after the school was unable to contact the parents, they walked to a friend's house. When mother eventually arrived at the school, she was extremely intoxicated. She was not driving. She said that she was late picking the minors up because father had beaten her up and was in jail.
When the minors did not arrive at school the next day (September 22, 2009), the school called the Department. Social worker Pamela Richards then went to the Regal Inn, where mother was living, to check on the minors. When she arrived, mother was asleep. The minors reported that mother had been awake earlier and they were asked to wake her. Mother then came to the door and explained that father had beaten her and she was dizzy and having vision problems. At some point, the motel manager, Tommy Davis, came by and reminded mother to let him know when father was going to be released from jail so he could go pick him up. Richards had been talking to mother about domestic violence and the risk to the minors. Although Richards attempted to convince her otherwise, mother said she was not going to press charges and was going to allow father to return to the motel. She stated that she did not have a driver's license and father provided the minors' transportation to school.
Mother also admitted that she had been drinking vodka earlier that morning (before Richards' contact with mother at 10:00 a.m.) and had not taken her prescribed medication, Adderral and an antidepressant. Richards noted mother repeatedly did not finish her sentences, swayed slightly while walking, and dropped a water bottle on the floor when trying to set it on the nightstand.
When Richards told mother she was going to call her supervisor to see what the Department could do for mother, mother became agitated. Mother began rushing around the room and throwing things (but not at anybody). She repeatedly yelled at Richards that she was going to kill Richards and would kill anyone who tried to take her children. At one point, she yelled this directly into Richards' face from a position approximately four inches away. Mother repeated her threat approximately 20 times. The minors were present. Veronica moved about the room to avoid being hit by the items mother threw. Alexander got under the covers on one of the beds and hid his head. Richards left the room and called the police.
When officers arrived, they noted that mother displayed objective signs of alcohol intoxication. They asked mother to take a breathalyzer test to determine her alcohol level, but she refused. She denied being intoxicated. Her behavior began to escalate; she yelled profanities and refused to cooperate with the officers. Mother repeatedly yelled "fuck you" at the officers. She yelled other things at the officers including "[Y]ou hurt me. How can you hurt me. You're not my husband but he hurt me . . . and now you are." The officers had not done anything. Mother also accused the officers of wanting to take the minors away from her.
According to the police report, mother was ultimately placed under arrest for public intoxication. The minors were detained. In the arrest report, the reporting officer noted that mother was unsteady on her feet, had red, watery eyes, a blank stare, thick and rambling speech, and was argumentative and hostile. Mother was released from jail on September 23, 2009 and transported to the hospital to be treated for acute alcohol withdrawal. There is no evidence mother was treated for any alleged injuries arising out of the domestic violence incident.
On September 24, 2009, section 300 petitions were again filed on behalf of the minors. The petitions contained allegations under section 300, subdivisions (b) and (c).
As to both minors, the petitions alleged that the minors were at risk for physical harm under section 300, subdivision (b), for the following reasons:
"b-1. On September 20, the child's father was arrested for 273.5 (A) PC for assaulting the child's mother in the presence of the child.
"b-2. On September 21, 2009, the child's mother was found to be intoxicated by school personnel after coming to pick up her children over one hour late.
"b-3. On September 22, 2009, the child's mother was arrested for 647 (f) PC, for public intoxication after refusing to cooperate with a field sobriety test and yelling profanities in public.
"b-4. Prior to the arrest cited above in b-3, the child's mother in the presence of the child repeatedly threatened to kill the social worker.
"b-5. The child's mother admitted on September 22, 2009 to having consumed Vodka before 10 a.m. that day, had difficulty completing a sentence and swayed when walking.
"b-6. The child's mother stated that the child's father would return to the family residence upon release from jail as he was needed for transportation.
"b-7. The child's parents have a long history of domestic violence as evidenced by the prior Juvenile Court Dependencies of the child and more recently by contact with Chico Police Department on January 10, and November 30, 2008 in response to domestic violence.
"b-8. In July 2009, the child's mother was treated for detoxification due to alcoholism for ten days at Oroville Hospital.
"b-9. On September 22, 2009, when discharged from the Butte County Jail, the child's mother was transported to Oroville Hospital."
As to Alexander, the petition also alleged under section 300, subdivision (b), that "The child describes feeling very depressed when he observes his mother becoming upset, swearing and throwing things in his presence."
Under section 300, subdivision (c), the petitions alleged that the minors were suffering, or at substantial risk of suffering, serious emotional damage as a result of the subdivision (b) allegations and from having witnessed the incidents of domestic violence.
The juvenile court appointed counsel for the parents at the September 25, 2009 detention hearing and continued the matter to October 1, 2009 for a contested detention hearing. At the October 1, 2009 hearing, the juvenile court granted parents' request to have their court-appointed attorneys relieved and to allow them to represent themselves. The matter was continued for an additional week to allow parents time to prepare.
On October 7, 2009, the juvenile court conducted a contested detention hearing. Mother and father objected to the detention report, asserting that the report contained errors and hearsay and that they had not been provided discovery. The court overruled their objections. When asked if they had evidence to present, mother read a statement to the court in which she requested that the court return the minors to them immediately because neither parent had been charged with a crime and because the detention of the minors was without a warrant and illegal. She further asserted there was no evidence that the minors had been neglected or harmed physically or emotionally. She claimed to have been arrested "unlawfully and with maltreatment." The parents presented no evidence. Their request for a continuance was denied and the court ordered the minors detained. County counsel indicated that the Department would provide services to both parents pending the disposition hearing.
At the initial jurisdiction hearing on November 19, 2009, parents requested that the court appoint attorney Dale Rasmussen to represent them. The juvenile court informed parents they could not choose the attorney that would be appointed for them, but noted that Rasmussen was next on the list and appointed him to represent mother. Attorney Christine Zebley was appointed to represent father. The hearing was continued.
The contested jurisdiction hearing went forward on December 1, 2009. Rasmussen orally demurred to the subdivision (c) allegations on the ground that the petitions did not set forth expert opinion supporting the allegation that there was a substantial risk of serious emotional damage to the minors. Zebley joined in the oral demurrer, similarly arguing that the facts alleged in the petitions were insufficient to establish a substantial risk of serious emotional damage to the minors. The juvenile court overruled the demurrers and proceeded with hearing testimony from Pamela Richards, the social worker who had prepared the detention and disposition reports. Thereafter, the court continued the hearing to December 8, 2009 for the second day of the contested hearing.
At the commencement of the second day, mother requested a Marsden hearing. The juvenile court conducted the Marsden hearing and denied mother's request to replace appointed counsel.*fn5
After the Marsden hearing, county counsel informed the court that he was withdrawing the section 300, subdivision (c) allegations and that the parties had agreed to some minor modifications of the remaining allegations. The (b)(7) allegation was modified to reflect that during the domestic violence incidents on January 10 and November 30, 2008, father alleged that mother was drinking alcohol and that mother denied father's accusations. Both Rasmussen and Zebley made clear, however, that jurisdiction, as well as the petitions, were still being contested. The juvenile court then sustained the allegations in the petitions.
A disposition report was filed on January 8, 2010. Heather Murphy, the social worker who authored the report, recommended that father receive reunification services. She recommended that mother be denied services pursuant to the bypass provisions in section 361.5, subdivision (b)(13).*fn6
On February 18, 2010, at the commencement of the contested disposition hearing, mother requested a second Marsden hearing. The juvenile court conducted the Marsden hearing and again denied mother's request to replace appointed counsel. When proceedings resumed in open court, mother misbehaved and was directed to leave the courtroom. Counsel spoke with mother during a recess and she was permitted to come back into the courtroom before testimony began.*fn7 After mother was allowed back into the courtroom, Rasmussen called social worker Heather Murphy to testify. After Murphy's testimony, the hearing was continued to March 4, 2010.
When the disposition hearing recommenced on March 4, mother filed a third request for a Marsden hearing. The juvenile court conducted the Marsden hearing and again denied mother's request to replace appointed counsel.
Rasmussen called several witnesses on behalf of mother -- a teacher, the manager of the motel where mother lived, a friend with whom mother attended Alcoholics Anonymous (AA) meetings, and father. Rasmussen obtained county counsel's agreement that mother could submit an offer of proof and mother also provided testimony. The court took judicial notice of the disposition report and the attached case plan in the first dependency case (filed May 4, 2004), and of the court files in the second dependency case.
At the conclusion of the disposition hearing, the juvenile court declared the minors dependents and ordered them to remain out of parents' custody. The court ordered reunification services for father but denied reunification services for mother pursuant to section 361.5, subdivision (b)(13), finding mother has history of extensive alcohol abuse and has both resisted court-ordered treatment within the three years prior to the instant petition and refused to comply with a program of court-ordered alcohol treatment on two prior occasions. Specifically, the court found mother had been ordered by the court in the 2004 dependency case to enter the Tri-Counties Residential Treatment Program for 90 days of inpatient treatment, which "was being fully paid for by the county, [and] she was to enter and complete the Touchstone program and attend AA four times weekly." After she completed the inpatient program, she was to drug test, stay sober and show that she had the ability to live free from alcohol dependency. Mother reported that she checked herself out of the residential program after one month to "develop her own program." Although she did not comply with the court-ordered program, the case was subsequently dismissed in May 2005. Mother relapsed in September 2005. She was ordered in the second dependency case to attend 90 AA meetings in 90 days, and thereafter to attend AA three times weekly, refrain from drug and alcohol use, test, and show her ability to live free from alcohol. Although mother failed to turn in any AA logs to the social worker and the social worker did not believe she had engaged in the family maintenance case plan, dependency was dismissed in September 2007. Mother has thereafter continued to abuse alcohol. The court noted that mother admitted relapsing in March 2009, July 2009 and September 2009. During her testimony, mother actually also admitted relapsing in June 2004 and September 2005.
The juvenile court acknowledged that the minors and mother love one another but found that reunification services for mother would not be in the best interests of the minors. The minors had repeatedly been exposed to domestic violence, they had been detained on three separate occasions, and they had been in foster care for over a year and a half with at least two different foster care providers. In light of the minors' need for stability and continuity, providing reunification services to mother was not in their best interests. Thus, the court found no exception to the bypass of services.
However, the court ordered reunification services for father. In doing so, the court indicated that continued visitation for mother would be appropriate.
I. Denial of Mother's Marsden Motions
Mother claims all three of her Marsden motions were erroneously denied. She contends that, at each of the three hearings, she had shown that her counsel was not providing adequate representation because he refused to present evidence and because he did not subpoena witnesses that would refute the jurisdictional allegations, show that mother could benefit from reunification services and establish that reunification services were in the best interests of the minors. She also claims the third Marsden motion should have been granted ...