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Name: In re V.V.
Case #: C063602
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/08/2010

The Marsden procedure did not apply to retained counsel, but the error was harmless where the court would have permitted a substitution if counsel had been ready to proceed. Appellant father was represented in the dependency court by retained counsel. On the day of the contested 366.26 hearing, appellant told the court he had problems with his attorney, Cox, and planned to retain a different counsel, Phillips. He executed a substitution of attorney and asked for a continuance. The court held a Marsden hearing, which it denied. It continued the case four days. Cox continued to represent appellant for the remainder of the proceedings. On appeal, the father claimed the court erred in applying Marsden to retained counsel and in refusing to grant a continuance. The appellate court agreed that it was error to apply the Marsden procedure to retained counsel. However, the error was harmless because the juvenile court also addressed the father’s request to discharge Cox and retain Phillips. It would have allowed the father to do so if Phillips had been ready to proceed. The appropriate question is whether the juvenile court erred in refusing a continuance. Here, it was not an abuse of discretion to deny the request because Phillips was not a dependency attorney, and would need a lengthy amount of time to be able to prepare to represent the father, which would have substantially delayed the hearing.