In re Z.N.

181 Cal.App.4th 282

104 Cal.Rptr.3d 247

In re Z.N. et al., Persons Coming Under the Juvenile Court Law SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.J., Defendant and Appellant.

No. A124843.

Court of Appeals of California, First District, Division Two.

December 29, 2009.

Justine S. Juson, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis J. Herrera, City Attorney, and Kimiko Burton, Deputy City Attorney, for Plaintiff and Respondent.

No appearance for Minors.

OPINION

LAMBDEN, J.

S.J. (mother) appeals from orders terminating her parental rights over seven-year-old twins Z.N. and Za.N., and selecting adoption as their permanent plan after a hearing under Welfare and Institutions Code section 366.26.¹ She does not challenge the merits of the rulings but claims reversible error in (1) denials of motions, late in the hearing, to relieve and substitute counsel, and (2) failure to comply with notice mandates of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We affirm the orders.

BACKGROUND

Mother has five children: the twins (born in Apr. 2002), their half siblings L. and Dexter M. (born in 1995 and 1992), and another half sibling, Benjamin J. (born in 1994). All but Benjamin were in mother's custody when removed and detained in November 2006 on information that she was incarcerated and, during months of being homeless before then, had left them in the care of others.

The San Francisco Human Services Agency (HSA) filed an original petition that same month, and the twins were eventually declared wards (§ 300, subds. (b) [failure to protect], (g) [no provision for support] & (j) [abuse of sibling]) on amended allegations regarding mother that she was on felony probation for grand theft and was convicted of battery on a police officer; she was under investigation for welfare fraud in receiving aid in more than one county for Benjamin; she had a history of domestic violence, with incidents witnessed by the children; her transience left her unable to meet the children's medical, dental, educational and emotional needs; she was currently incarcerated for a probation violation, her second incarceration since an arrest on a warrant in November 2006 for noncompliance with community service; half siblings Dexter and L. and Benjamin were subjects of pending dependency petitions; mother had refused to reveal the location of Benjamin so that a health and safety evaluation could be done; mother continued to conceal the whereabouts of Benjamin, who had not been seen since he was six months old; and mother had given conflicting accounts of his whereabouts, telling family members that he lived with his father, telling HSA that he was voluntarily placed with a paternal aunt, and saying he had been with an unidentified family since he was very young.

The twins entered foster care immediately, in November 2006, with a family that mother chose. They remained together in the same home throughout these proceedings, bonded quickly and made great progress, transforming from children with emotional problems to children who thrived physically, emotionally and socially, and excelled academically. By the time of the proceedings we review here, nearly two and a half years later, the foster parents were committed to adopting and were completing a home study.

Mother's progress was dismal throughout the reunification period. She signed an initial services plan in December 2006, while jailed three months for an underlying grand theft, and was granted reunification services at disposition in June 2007. Mother was represented by counsel throughout but did not personally attend a hearing until September 2008 (nearly two years into the case), electing not to attend early hearings because she knew she was being criminally investigated for welfare fraud related to Benjamin, whose whereabouts she continued not to reveal.

Mother was also incarcerated for most of that time. The record is confusing, but it appears that in March 2007, just a month after her time in San Mateo and San Francisco County jails for the grand theft, she was jailed in San Francisco for child concealment. In the criminal matter, she ultimately pled guilty to welfare and food stamp fraud (§ 10980, subd. (c)(2)), for collecting on the absent Benjamin in two counties, and perjury and child concealment (Pen. Code, §§ 118, 278.5), in return for a two-year prison sentence. She was jailed in San Francisco until February 2008, when she was transferred to state prison and served out a further six months until released in mid-August 2008. She had a period of weekly visits with the twins in the brief interval between jailings, then twice-monthly visits part of the time while in jail the second time. She declined to have visits while in prison, but sent them some letters.

Meanwhile, mother's reunification services were terminated in June 2008, over 18 months after removal, for lack of substantial progress. We do not have full records for the half siblings, but by the start of the twins' section 366.26 hearing in March 2009, Dexter (age 17) was in long-term foster care, and L. (age 13) was with her father, her case having been dismissed. The whereabouts of Benjamin (age 14) were never ascertained. The twins' presumed father (who has not appealed here) was not a part of the twins' lives when the case began and had not been in contact with them, or HSA, since January 2008.

Within a week of her parole release from state prison in August 2008, mother took up residence at a Walden House facility on Treasure Island, participating in a 15-month program—Female Offender Treatment and Employment Program (FOTEP)—designed to ready her for employment and independence. She was nearly seven months through that program by the time of the section 366.26 hearing, had successfully completed various classes, was working at an internship at the San Francisco County Jail, and felt she was in compliance with parole. She did not have permanent housing but had applied for it, and her housing would allow children. Her release from FOTEP was set for September 2009, six months off.

The court had suspended mother's visits with the twins upon terminating services and setting a section 366.26 hearing, and HSA thereafter consistently recommended terminating parental rights and choosing adoption as the permanent plan.

In early January 2009, mother's counsel filed a modification petition (§ 388) to reinstate visits and reunification services based on mother's progress in FOTEP and earlier history of positive visits with the twins while jailed in San Francisco. HSA filed opposition, and the matter was heard on March 13, 2009, the first day of the section 366.26 hearing. Mother's counsel presented the petition first, calling social worker Tomy Joseph, FOTEP case manager Avonelle Hanley-Mills, and mother as witnesses. Counsel's effort to present the director of a prerelease program was met with a successful objection that the witness was not timely designated. The court denied modification, citing lack of evidence that it was in the children's best interest.

Moving on to the section 366.26 matters, the court excluded the views of half sibling Dexter for lack of standing (see § 388, subd. (b)). His counsel related that Dexter did not want to come to court, and mother's counsel related that she had chosen not to force his appearance by subpoena, thinking that his counsel could relate his views. Counsel sought a continuance, and the court granted it after HSA had briefly recalled Tomy Joseph to the stand.

At the start of the continued hearing, on April 27, 2009, mother's counsel raised a "McKenzie motion" to be relieved as counsel (People v. McKenzie (1983) 34 Cal.3d 616 [194 Cal.Rptr. 462, 668 P.2d 769]), while mother raised a "Marsden motion" to change counsel (People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44]). The court cleared the courtroom and heard each movant relate, in essence, that their relationship had deteriorated to the point that they could no longer communicate effectively. The court denied both motions, citing in part the lateness of the request and the children's need for resolution. Mother left the courtroom for the rest of the hearing. Her counsel cross-examined the caseworker and, there being no further witnesses or evidence, urged long-term foster care based on a claimed sibling-relationship exception (§ 366.26, subd. (c)(1)(B)(v)). The court terminated the rights of both parents and selected adoption as the plan.

The absence of challenge to the merits of the section 388 or 366.26 rulings on this appeal leaves no need to detail the evidence, but we note that mother insisted on a story of Benjamin's absence that differed from prior explanations she had given to family (who had not seen Benjamin since infancy) and to officials. She now said that she had let Benjamin stay with a man in Hunter's Point named Richard Anderson, someone she had been "dating or seeing" but who she did not believe was Benjamin's biological father. Benjamin had now lived with Anderson since 1995, and mother had not seen them since late 1998 or early 1999. She had no idea where he was or whether he was safe or alive.

DISCUSSION

I. "Marsden"/"McKenzie" ruling

Mother contends that denial of her Marsden/McKenzie motions was an abuse of discretion that denied her due process and rose to "structural error" in the circumstances, such that reversal is required without any need to establish prejudice. We note that she defines a "McKenzie motion" as one "by appellant or his counsel to request the removal of counsel[] (People v. McKenzie[, supra,] 34 Cal.3d [at p.] 631)," yet she does not offer any analysis distinct from Marsden review. Since review of a "McKenzie motion" ruling is similar (e.g., People v. McDade (1991) 230 Cal.App.3d 118, 125-126 [280 Cal.Rptr. 912] [reviewing for abuse of discretion]), we proceed with Marsden review...