Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, Super. Ct. No. CK12896, Hon. Albert J. Garcia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendants and Appellants.
Raymond G. Fortner, Jr. County Counsel, James M. Owens, Assistant County Counsel, Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
Appellants, D.D., Alize M., and Carlos V., appeal from an order of the juvenile court at a Welfare and Institutions Code section 366.26, subd. (n) hearing denying Stella A,. their previous caretaker, status as a prospective adoptive parent, and their subsequent removal from her home. We find no error and affirm the orders of the trial court.
All undesignated statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF FACTS/PROCEDURAL HISTORY
D., Alize and their half-siblings, Raymond A., Janet A., Michael A. and Alexis A. initially came to the attention of the DCFS when Olga O., the paternal grandmother of the half-siblings, filed for legal guardianship, and a Los Angeles County Probate Court investigator was prohibited from making a home assessment. On November 17, 2004, the probate investigator recommended that legal guardianship be denied and requested a home assessment to ensure the safety of the grandchildren. After conducting interviews with the children on November 30, 2004, the social worker did not find the children were at immediate risk and left the children in the home.
The mother and the half-siblings are not parties to this appeal.
However, on January 10, 2005, a social worker received a child abuse report regarding the mother. Mother reported she could not take care of her children right now, and she did not have a place to live. She requested a meeting with the social worker on January 12, 2005 but failed to appear at the scheduled time. She called and stated she could not drive and did not have a car.
Mother left the children with their maternal grandmother who had a criminal history. On January 18, 2005, all of the children were taken into protective custody. On January 21, 2005, a dependency petition was filed pursuant to section 300, subdivisions (a) and (b). The petition was filed on behalf of D., Alize and their half-siblings, alleging that their mother was a user of illicit drugs which impaired her ability to care for the children and resulted in her leaving the children in the care of different relatives. The petition also alleged that D. and Alize’s stepfather, Raymond A. had previously exposed the children to violent confrontations with the mother, which endangered the children’s well-being.
D. was found living with the maternal grandfather, Manual D. and step-maternal grandmother, Debra D., and it was revealed that Manual had an extensive criminal history, which included a domestic violence conviction against Debra D. Alize was living with the maternal grandmother, who had an extensive drug-related criminal history and recently tested positive for amphetamines and methamphetamine. The other half-siblings were found living with their paternal grandmother and paternal aunt.
At the January 21, 2005 detention hearing, the juvenile court found that prima facie evidence supported the petition and ordered the children detained from the parents. The court ordered the Department of Children and Family Services (DCFS) “to make reasonable efforts to place all six siblings together in the same foster placement.” DCFS was given discretion to place the children with any appropriate relative with the exception of the parents. Raymond A’s children, Janet, Michael and Alexis were placed together in a confidential foster home and D. and Alize were placed together in a different foster home because DCFS had not yet identified an appropriate relative.
DCFS filed a February 17, 2005, Jurisdiction\Disposition Report.Mother told the social worker that she was “extremely afraid” of father so the DCFS agreed her whereabouts would be kept confidential. Mother stated she wanted to obtain a restraining order against father due to severe beatings in the past. Mother also indicated she had been a Welfare and Institutions Code section 602 ward of the court beginning in 1992 as a result of possible gang involvement and suspected drug and alcohol abuse.
D.’s maternal step-grandmother, Debra D., submitted ten character letters from friends and co-workers recommending the court place D. with Debra. On February 17, 2005, the court ordered DCFS “to make every effort to place [D.D.] in the home of her maternal grandfather and step-grandmother including looking into the appropriateness of applying for a waiver for the criminal record of grandfather Manual [D.]” DCFS was to report to the court on February 25, 2005 whether a waiver was appropriate and alternative recommendations.
At the time of the February 25, 2005 interim report, the children remained in their original foster placements. The social worker interviewed Manual D. and Debra D. and reported on an alleged incident of domestic violence between the grandparents. The grandparents claimed that the couple had been arguing when the grandfather accidentally struck the step-grandmother with a telephone. The arrest reports indicate that the grandparents will minimize the incident. It appeared the grandfather threw the grandmother to the ground and dragged her by her hair out the front door. The grandfather completed a 52-week anger management course but the social worker believed he showed little insight into his conduct and could violently act out again and therefore recommended against placement in that home.
Debra is also referred to as “Deborah” throughout the record.
On February 25, 2005, the juvenile court held a jurisdiction/disposition hearing. Mother and father waived their rights to a hearing and entered pleas of no contest to an amended petition. The court sustained the dependency petition as amended, and declared the children dependents of the court. The parents received reunification services. The maternal grandparents were ordered to have visitation. DCFS was ordered to continue to apply for a criminal waiver for D.’s maternal grandfather.
Because the parents are not parties to this appeal, this opinion will not discuss their efforts toward reunification.
On April 21, 2005, the court ordered Debra D. to have unmonitored visits with D. and that the child be placed in her home as soon as a criminal waiver was approved. The criminal waiver procedure had not yet been completed by DCFS. D.’s remained placed with Alize in a separate foster home apart from the rest of the siblings. Mother also requested D. be placed with her grandparents. DCFS later denied the recommended criminal waiver for Manual.
In August of 2005, the children each remained in their separate foster placements. Mother had not been compliant with her service plan. The half-siblings were not recommended for adoption because paternal relatives were willing to care for the children and their biological father was complying with court orders. However, DCFS recommended D. and Alize be placed in a fost-adopt home. A pre-placement conference was held regarding prospective adoptive parents for D. and Alize and the placement resource was willing to adopt the children.
Debra and Manual D. had been persistent in their efforts to have D. placed with them. However the criminal waiver had been denied for Manual and he was attempting to have the criminal waiver overturned. The court ordered DCFS to make all reasonable attempts to place D. and Alize with family or extended family.
By September of 2005, the maternal grandparents had not been able to obtain the required criminal waiver. The court ordered DCFS to evaluate a maternal aunt, Estella T. for placement of D. and Alize. A report evaluating this placement was ordered on October 25, 2005. By October 2005, additional maternal relatives, great aunt and uncle, Sylvia and Fernando D. requested D. and Alize be placed in their home. That placement resource was also being evaluated.
On November 10, 2005, D. and Alize were placed with Sylvia and Fernando D. DCFS recommended parental rights be terminated and the Court calendar the case for a progress hearing regarding adoption.
On October 27, 2005, mother had another child, Carlos V. DCFS recommended detaining Carlos. The court ordered DCFS to make all efforts to place Carlos with his siblings. Carlos was detained and initially placed in shelter care and then in a non-relative foster home. Sylvia and Fernando D. could not care for Carlos in addition to D. and Alize. The maternal aunt Estelle T.’s daughter, Stella A., indicated she could care for Carlos and her home was being evaluated for placement.
A December 20, 2005 update indicated Carlos’ father was convicted of robbery and will be sentenced to 44 years in prison. As of January 6, 2006, Stella A. was awaiting approval for Carlos to be placed in her home. However the home inspection had been temporarily delayed.
The man indicated to be Carlos’s father, Carlos V. Sr., was later found not to be the biological father of Carlos.
Mother was incarcerated on January 14, 2006. DCFS recommended no reunification services be given to Carlos’s parents. Carlos Sr. waived his rights to a jurisdictional trial. On January 25, 2006, the court proceeded against mother and sustained the petition as to Carlos, declared him a dependent of the court and denied mother family reunification services. Stella expressed a willingness to adopt Carlos and an adoptive home study was initiated for her. An updated report filed on January 25, 2006 indicated that Carlos had been placed with Stella A.
A status review report dated February 27, 2006 indicated D. and Alize remained with Sylvia and Fernando D, while Carlos remained with Stella A. The half-siblings remained in placement, but visitation between the children had not been accomplished. None of the children had ever seen Carlos. DCFS recommended the siblings have bi-monthly visits, and the relatives be contacted by the social worker to resolve the noted hostility that resulted from mother.
On March 17, 2006, pursuant to a request from minor’s counsel, the court ordered DCFS re-evaluate maternal step-grandmother Debra D. because she had separated from Manual D. and was obtaining a divorce. The maternal grandfather was the reason why a criminal waiver was not obtained earlier.
A section 366.26 report for D. and Alize was filed on March 17, 2006. As of March 2, 2006, the DCFS placement and recruitment unit contacted the social worker and disclosed a possible match of new prospective adoptive parents for D. and Alize. D. and Alize remained in the home of their great-aunt and uncle, Sylvia and Fernando D, who were no longer willing to adopt them because they did not want to sever family ties with the grandparents. Additionally, the step-grandmother, Debra D., was only willing to adopt D., and DCFS was reluctant to separate the children who had a sibling relationship. Sibling visitation for all of the children was to resume by April 1, 2006.
The court ordered DCFS to complete the home study that was initiated for a Sylvia and Fernando D. and to reassess step-grandmother Debra D. as a prospective adoptive parent. On April 5, 2006, DCFS reported it could not complete the adoption home study for Sylvia and Fernando D. because the great aunt and uncle had not returned her telephone calls. DCFS reported that home studies of other non-relative prospective adoptive parents had been completed. DCFS reported it could not confirm that Debra D. had moved out of her prior residence and because of her ongoing divorce did not recommend her as a prospective adoptive parent.
On April 25, 2006, the court once again ordered DCFS have Debra D. re-evaluated as a prospective adoptive parent for both D. and Alize in that she had completed her divorce paperwork and “minor’s counsel very much would like to see these minors adopted by relatives.” DCFS reported that Debra D. was now willing to adopt both D. and Alize. However the DCFS continued to recommend against Debra as a prospective adoptive parent.
In May 2005, the court issued various orders to DCFS to expedite the adoption evaluation process for D., Alize and Carlos. Stella A, who was in the process of adopting Carlos, was identified to the court as a relative who was interested in adoption of D. and Alize. DCFS reported that it would work diligently to approve this home study and proceed with the adoption. Debra D. was no longer considered appropriate for placement of the children because of her desire to reconcile with Manual D.
A July 14, 2006 Progress Report informed the court that on May 11, 2006, D. and Alize were released from their prospective adoptive family match. On July 14, 2006, the court again ordered DCFS to immediately comply with completing the home study for Stella A. On July 17, 2006, D. and Alize were placed in Stella’s home, and she expressed willingness to adopt them together with Carlos.
On July 26, 2006, the court held a section 366.26 hearing regarding the half-siblings, and parental relatives were appointed as their legal guardians. The court retained jurisdiction of these children. On the same date the court ordered Carlos into a plan of permanent placement with Stella A., with the specific goal of adoption. DCFS planned that Stella A. would adopt all three children and facilitate visitation with the other siblings on a consistent monthly basis to maintain those sibling bonds. DCFS recommended that sibling visitation be mandatory. The court ordered that DCFS immediately approve the home study and report any impediments to adoption. The court also ordered play therapy for D. and Alize to address their case issues as well as the recent move to Stella’s home.
On October 24, 2006, the social worker filed both a status review report and a “Last-Minute Information for the Court” report. The Status Review Report indicated Stella’s home study had been approved in late August. Stella A. appeared to do her best with the children, but was frustrated by the visits with Debra because they were time consuming and they caused D. to act out. Stella A. told the social worker D. would act out against her siblings, especially Alize, by hitting them. D. and Alize were receiving counseling services. The social worker opined that Stella’s home remained appropriate for the children.
The Last Minute Report advised that the children, D., Alize and Carlos were detained from Stella A. and placed in foster care due to the allegations of physical and emotional abuse. On October 23, 2006, the director of the preschool D. and Alize attended, reported that Alize came to school that day with a bruise on her left eye and reported that Stella A. had hit her on the face with her hand. The Director also reported that D. said that Stella spanked them on Friday after they got in trouble for playing in the sand. The report also contained information that Stella A. had remarked in the presence of the girls that before she had custody of the girls, she had a life, and that for “crystal meth babies,” the girls were very smart, and they were “too much” for her.
At the hearing on October 24, 2006, Stella A. was present in court with an attorney and a witness. Minor’s counsel stated her intention to file a petition for adoptive parent (“PAP”) designation for Stella. The court set a contested hearing on the request for PAP designation. The court ordered DCFS to look into placing the children with great maternal aunt, Estella T., or in the alternative to return the children to Stella’s home if appropriate and Stella was ordered to have reasonable monitored visitation.
The court granted Stella monitored visitation with the children, ordered DCFS to look into placing the children with great maternal Aunt Estella T., Stella’s mother, and in the alternative gave DCFS discretion to return the children to Stella. The court set a contested hearing on Stella’s request for adoptive parent designation. Stella was ordered to have reasonable monitored visitation. D. and Alize were placed together in a foster home and Carlos was placed separately. Sibling visitation was ordered.
On October 26, 2006, a detention report was filed on behalf of D., Alize and Carlos. The social worker reported she had met with the director of D. and Alize’s pre school regarding the allegation Alize went to preschool with a bruise she stated was caused by Stella hitting her. D. was not sure if she saw Stella hit Alize, however, D. reported that she and Alize slept on the floor in Stella’s room. D. claimed Stella hit the girls with belts as a form of discipline. The day care staff noted that D. and Alize fight a lot. Stella denied any abuse in her home.
On October 26, 2006, a section 387 petition filed by DCFS was dismissed without prejudice as a general suitable placement order had previously been made. The court continued sibling visits and visits with Stella A. The court authorized DCFS to return the children to Stella A. prior to the next court hearing.
On October 27, 2006, minor’s counsel filed a written request for Stella A. to be designated a prospective adoptive parent for all three children. The November 9, 2006 hearing was then continued to January 2, 2007 per minor’s attorney’s request.
A November 15, 2006 Interim Report was prepared for the court. As of November 15, 2006, the children remained in different foster placements. Estella T., the children’s maternal great-aunt [Stella’s mother], was being assessed for placement of the children. The report indicated that the children were not placed back with Stella A. because of allegations of physical and emotional abuse by Stella. DCFS had arranged weekly sibling visits and visits with Stella, and the visits were reportedly going well. DCFS recommended that the court continue the hearing for further progress on children’s placement with Estella T.
On November 17, 2006, DCFS had assessed and approved Estella’s home, and the children were placed with her shortly thereafter.
An updated report dated November 22, 2006, indicated that shortly after the children were removed from Stella A., her sister Veronica A., came forward with an explanation of how Alize suffered a bruise to her eye. She reported that on October 22, 2006, Alize was at her home and she heard a thump and saw Alize between two doors, holding both. Veronica asked Alize if she had hurt herself and Alize answered “yes.” Veronica recalled Alize’s eye being watery, but did not notice anything for the remainder of the day that would indicate an injury to Alize’s eye. Veronica believes that the doorknob may have hit Alize in the eye causing the bruise.
DCFS interviewed the director of the pre school, Ms. N., on November 6, 2006 in regards to Stella’s statements that the girls had severe behavioral problems and that D. had attempted to choke another child at the pre-school and likely caused the bruise to Alize’s eye. Ms. N. denied the allegations Stella made against the girls, but remembered an incident when the girls came to the pre-school angry and pushed their teachers.
DCFS interviewed Ms. Sanchez, who received the children into the pre-school and watched them until they went to their respective classrooms. She reported that the girls routinely came into the pre-school upset and unhappy. She noticed that D. would take toys and hit Alize with soft slaps. Ms. Sanchez also recalled the incident when D. had pushed her after a usual morning coming in upset.
Ms. J., D.’s teacher at the pre-school, indicated that D. had a difficult time adjusting to the new pre-school, which Ms. J. observed as normal. Ms. J. also reported that D.’s behavior and listening skills had improved. Ms. Ji., Alize’s teacher’s aid said that on Mondays, Alize would usually come to the pre-school upset and stubborn. Ms. Ji. recalled numerous times when Stella would make a scene if Alize was caught playing in the sand.
Ms. Boucher, the girls therapist reported, “We’ve never seen the girls fighting or acting out like Stella reported, they’re fine.” Ms. Boucher said she was concerned about Stella’s inappropriate expectation of the girls, especially D., and indicated that Stella treated D. as if she were a thirteen year old girl.
Ms. C., the girl’s previous foster mother, indicated that the girls were very sweet loving and had normal sibling conflicts. She denied ever seeing the girls rough or aggressive with one another. Ms. C. also reported that the girls were excited to see Stella and talk to her over the phone.
Stella was re-interviewed on December 19, 2006 and denied causing Alize’s bruise, spanking the children with a belt, calling them names or saying negative things about them to Ms. N. in their presence. Stella also denied that her daughter Roxy had waxed D.’s back. Stella said that she only disciplined girls by giving them time-outs. The report noted that Stella had previously, and during this interview, admitted spanking D. on at least two occasions.
Based on the above, DCFS believed the children were at risk of further abuse if they remained with Stella and that their removal from Stella’s home was in their best interest. DCFS noted that it was waiting for the court’s ruling on the allegations against Stella A. before it decided to rescind Stella’s previously approved home-study. DCFS recommended that the court deny Stella prospective adoptive parent status as to the children.
On January 2, 2007, a section 366.26, subd. (n)(4) hearing, was held to decide whether Stella A. qualified as a prospective adoptive parent for D., Alize and Carlos, and on Stella’s petition to return the children to her care. The court admitted into evidence DCFS reports dated October 26, 2007, November 22, 2006, December 13, 2006, and January 2, 2007 and colored photographs depicting Alize’s bruise to the eye. Minor’s counsel made a standing objection to hearsay and had previously provided a witness list to the parties and the court.
Testimony was taken from several witnesses. Ms. S.N. testified that D. and Alize started at her preschool in July 2006. The girls spent approximately eight hours a day at the preschool and were transported there by Stella. October 23, 2006, Alize was observed to have a bruise to her eye, and when asked what happened, said that mother, referring to Stella, hit her eye with a closed fist. Ms. N. believed that Alize was articulate and believable because her answer remained the same when she was asked the same questions at different times of the day by her teacher, Mr. Sanderson, Ms. Flores and the police officer. Ms. N. said that she did not believe that Alize was developmentally delayed. Ms. N. testified that she relayed to DCFS Stella’s negative remarks about the girls and that Stella’s daughter had waxed D.’s back, but she did not think a hot wax was used. She felt the waxing experience was innocent and caused her no concern. Ms. N. acknowledged that Stella had complained about her to her superior, but said that it did not upset her or make her dislike Stella A. Prior to seeing the bruise, she believed Stella provided good care to the girls.
Mr. John Sanderson was the first social worker to arrive at the preschool. He testified that he received a Bachelor’s Degree in Sociology and had been a social worker for more than seventeen years. Mr. Sanderson said that he had often interviewed two-year old children about abuse and based on his experience, believed that at least half of them could articulate themselves truthfully. Mr. Sanderson said that Alize told him something along the lines that “mommy Stella had hit me.” Mr. Sanderson testified that based on the injuries to Alize and her consistent reports that Stella hit her, he initiated a report to the local police. Mr. Sanderson said that he already believed that the children would be at risk if they remained with Stella, but waited for the case worker, Ms. Flores, to arrive to collaborate on whether to detain the children.
After the police officer and Ms. Flores arrived, his belief that the children should be detained was reinforced based on Alize’s consistent statements, and a decision was made to detain the children. Mr. Sanderson said that the police officer did not state her later expressed belief that she was unsure who caused the injury to Alize.
Mr. Sanderson’s initial information was via a series of e-mails that he attached to the detention report. The e-mails talked about the waxing incident and other information, such as Stella’s negative comments about the girls. The e-mail information indicated to him that they may have been abused in the home prior to Alize’s eye injury.
Ms. Tasha Boucher, the girl’s individual therapist, who had conducted two family sessions together with Stella A., testified that she did not believe that Stella was being emotionally abusive to either girl.
Ms. Maryann Sanchez, a pre-school staff member who was responsible for welcoming the girls into the preschool, stated that she had observed the girls fight daily and Alize threw daily tantrums and would throw herself back when she knew someone would catch her. The school staff would try to stop Alize from bumping into furniture and hitting her head during tantrums. Ms. Sanchez said that she did not notice a bruise to Alize’s eye when Alize arrived at preschool on October 23, 2006.
Ms. Alma Flores, a social worker, testified that she was assigned as the servicing social worker on September 26, 2006. She completed and approved the home-study on Stella’s residence. Ms. Flores states that she became concerned about the children after her first meeting with Stella, which was when Ms. Flores was monitoring a visit between D. and Debra at which Stella was also present. Ms. Flores testified that Stella was very upset that the visits with Debra had to take place and took her anger out on D. Ms. Flores said that she explained to Stella that those visits were court-ordered. The decision to remove the children from Stella was based on the statement made by Alize and the bruise on her eye. She did not learn about the possibility that Alize hit her eye on a doorknob until after the children were removed.
After the children were removed from Stella, Ms. Flores was present at all but one of the visits between Stella, D., Alize and Carlos. All of the children were “very excited to see Stella” at the visits.
D. testified that Stella had never hit her, nor had she witnessed Stella hit Alize or Carlos. D. said that she wanted to live with Stella.
Stella testified that she had never hit the children, but used time-outs as a form of discipline. Stella testified that she did not notice any injury to Alize’s eye because it was still dark when she dropped the girls off at preschool. She believed that it could have been caused one of Alize’s tantrums a night before. She first assumed that something happened to Alize at preschool, and then Veronica volunteered the information about Alize at the door the day before. Stella spoke to the detectives and told them all that she was aware of; which was nothing. Nobody else questioned her. Stella described Alize’s vocabulary as limited and offered only a few words that Alize would frequently use.
Stella testified that she believed that Alize said Stella caused the injury to here eye was because that answer was planted by Ms. N. and Mr. Sanderson in retaliation for complaints Stella had made about Ms. N. and Ms. Flores to their respective supervisors. Stella said that she complained when Ms. N. would tell the girls what Stella should not be doing. She also complained that the restroom smelled like urine and that cats used the sand box as kitty litter. Stella and Ms. N. did not have a good relationship and had not spoken in two months due to Stella’s complaints. Stella also noted that she had complained to DCFS on several occasions about having a difficult time conforming to the children’s schedules. Stella wanted the children returned to her and was willing to obey any order the court might impose.
At the close of the evidence, DCFS’s counsel argued that the court should deny Stella prospective adoptive parent status as to the children and that it was not in their best interest to be returned to Stella. Stella’s attorney and the children’s attorney both argued that the court should designate Stella as a prospective adoptive parent to D., Alize and Carlos, although the attorneys acknowledge that D. and Alize had not lived in Stella’s home the requisite six months. The attorneys also argued for the children’s return to Stella. Minor’s counsel pointed out that the bruise on Alize was not noticed for the first two hours she was at school and was difficult to see. He opined that if the bruise was actually caused by a punch to the eye, the bruise would have appeared different.
Stella’s attorney pointed out that Stella qualified as a PAP to Carlos and the Legislature didn’t envision a set of facts as the ones in this case when enacting the prospective adoptive parent status statute.
The court denied Stella prospective adoptive parent status as to D. and Alize because they had not lived with Stella for the requisite statutory six months and the court felt that the six-month period of residence was mandatory and absolute. The court also denied Stella prospective adoptive parent status to Carlos, finding that Stella did not properly supervise the children evidenced by the undisputed fact that the injury to Alize’s eye happened under Stella’s care and that D.’s back was also waxed while under Stella’s care. The court noted that none of the parties raised the issue of proper supervision.
On January 4, 2007, the minors’ attorney filed a Notice of Appeal challenging the court’s January 2, 2007 orders.
CONTENTIONS ON APPEAL
Appellant’s contentions on appeal are as follows: 1) the trial court erred in denying Stella A. prospective adoptive parent status per Welfare and Institutions Code section 366.26, subdivision (n); 2) Stella was entitled to prospective adoptive parent status as to Carlos and the best interests of the girls should have been considered in light of that conclusion; 3) Stella should have been considered a de facto parent and have the rights and privileges of that status; 4) if writ review was required, this appeal should be considered as a petition for writ of mandate; 5) if review is not available, then appellant’s trial counsel should be found to have rendered ineffective assistance of counsel by not filing a writ petition.
Respondent’s contentions on appeal are as follows: 1) this Court is without jurisdiction to hear this appeal because of the failure to file a petition for extraordinary writ review within the time specified by the Rules of Court; 2) the court properly denied Stella prospective adoptive parent status as to the children; 3) the issue of de facto parent status was never raised or discussed below and is therefore waived.
DISCUSSION
Jurisdiction To Hear Appeal
Section 366.26, subdivision (n)(1) provides for the designation of a current caretaker as a “prospective adoptive parent.” Like an order setting a section 366.26 hearing, a timely writ petition is the exclusive way to perfect the right to appellate court review of an order designating a dependent child’s caretaker as a prospective adoptive parent. Section 366.26, subdivision (n)(5) provides that “except as provided in subdivision (b) of Section 366.28, an order by the court issued after a hearing pursuant to this subdivision shall not be appealable.” Section 366.28 states in relevant part:
“(b)(2) Failure to file a petition for extraordinary writ review within the period specified by rule of court, to substantively address the specific placement order that is challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.”
Rather than filing a petition for extraordinary writ, the children filed an appeal from the court’s January 2, 2007 order denying Stella prospective adoptive parent status at the section 366.26, subdivision (n) hearing. Acknowledging this difficulty, appellants ask that their opening brief be treated as a Petition for Writ of Mandate or in the alternative that appellant’s trial counsel should be found to have rendered ineffective assistance of counsel by not filing a writ petition.
We recognize that, if all the conditions necessary for the issuance of a writ of mandate are otherwise present, an appellate court has the discretionary power to treat an unauthorized appeal as a petition for an extraordinary writ. (Olson v. Cory (1983) 35 Cal.3d 390, 401; In re Albert B. (1989) 215 Cal.App.3d 361, 372-373; and see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 88-93, pp. 147-156.) In limited circumstances, the court has exercised this discretion when (1) the notice of appeal was filed prior to the date scheduled for the 366.26 hearing, and (2) the appellant notifies this court of its request that the appeal be treated as a petition for an extraordinary writ, and (3) that notification is made sufficiently early (a) to permit this court’s adjudication of the issues raised in the appeal before the 366.26 hearing has been held, or at least (b) to stay the commencement of the 366.26 hearing until that adjudication can occur. (In re Ricky H . (1992) 10 Cal.App.4th 552, 563 -564.) The majority of such cases involve the parents of the minors and there was expressed concern with delaying the 366.26 selection and implementation hearing.
“Of the many private and public concerns which collide in a dependency proceeding, time is among the most important. [Citation.] The action ‘“must be concluded as rapidly as is consistent with fairness . . . .”’ [Citations.] The state’s interest in expedition and finality is ‘strong.’ [Citation.] The child’s interest in securing a stable, ‘normal,’ home ‘support[s] the state’s particular interest in finality.’ [Citation.]” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152, fn. omitted.; In re Anthony B. (1999) 72 Cal.App.4th 1017) The majority of recent cases which have considered this issue have emphasized the emphasis on efficiency and finality. (See e.g., In re Anthony B., at pp. 1021-1024; In re Charmice G. (1998) 66 Cal.App.4th 659, 671; In re Merrick V. (2004) 122 Cal.App.4th 235.) The case of In re Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1153, cited by appellants does not advance their argument. In Melinda K., the court allowed a mother at the first six month review hearing to challenge whether reasonable reunification services had been provided. In spite of the improper procedure, the Court of Appeal elected to treat the mother’s appeal as a petition for writ of mandate because she had no alternative method to raise her issues.
The mother in Malinda K. was challenging whether reasonable reunification services had been provided. Her posture was unusual because the court had not made an order adverse to her interests. The juvenile court had continued reunification services for an additional six months. The mother was allowed appellate review because of a “finding which may ultimately have a significant effect on the dependency proceedings.” (Malinda K., supra,. at p. 1157.)
In 2003, the legislature declared that “delays caused by appeals from court orders designating the specific placement of a dependent child after parental rights have been terminated may cause a substantial detriment to the child.” For that reason the writ procedure should apply to “an order by the court that a dependent child is to reside in, be retained in, or be removed from a specific placement . . . .” (§366.28, subd. (b)(1); see also, Cal. Rules of Court, rule 8.452.) This is such a post-termination case and clearly illustrates the delay which can occur when you proceed via appeal rather than writ. Although the notice of appeal was promptly filed, the case did not receive the speed and efficiency of the writ process. D. and Alize were originally declared dependents of the court on February 25, 2005. The 366.26 hearing setting adoption as the permanent plan for the children was held on July 26, 2006. All three children were in Stella’s custody from July to October 23, 2006. After continuances, the hearing on Stella’s prospective adoptive parent designation was held on January 2, 2007. The notice of appeal was filed on January 4, 2007. Appellant’s opening brief was filed on June 7, 2007, the Respondent’s brief was filed on September 17, 2007 and appellant’s reply brief was promptly filed on September 19, 2007. The mere presentation of the dates in this case illustrates the problem that review by extraordinary writ was designed to avoid. Absent extremely unusual circumstances, which are not present in this case, we hold that compliance with the extraordinary writ procedure for review should have been followed in this case and that it is not appropriate to treat this appeal as a petition for writ of mandate. All of the benefits of the rapid procedure designed by the legislature which mandated the speedier writ review have been lost. This appeal will be dismissed.
Habeas Corpus
Although we dismiss the appeal, we will discuss the merits because of the contention that the failure to apply for an extraordinary writ was ineffective assistance of counsel resulting in prejudice to appellants. We agree that all parties who are represented at dependency proceedings are entitled to competent counsel. (§ 317.5, subd. (a).) “In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where ‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction. [Citation.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) Courts have approved the use of habeas corpus petitions in dependency proceedings to raise claims of ineffective assistance of counsel. (In re Paul W. (2007) 151 Cal.App.4th 37, 44-45, 53; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667 1663, In re Carrie M. (2001) 90 Cal.App.4th 530, 533-534.)
The test for showing ineffective assistance of counsel in dependency proceedings is the same used in criminal proceedings. A parent claiming ineffective assistance of counsel “‘must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent’s] interests would have resulted.’ [Citations.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98; accord, In re Athena P. (2002) 103 Cal.App.4th 617, 628.) The citation of error here would be that trial counsel filed a notice of appeal, rather than a petition for writ relief. The failure to file an extraordinary writ was clearly error for which no valid strategic reason can be given. However, we conclude that it is not reasonably probable that the result would have been more favorable to appellants or Stella, and hence deny habeas relief.
Prospective Adoptive Parent Designation
“Prospective Adoptive Parent” (PAP) is a defined term in section 366.26, subdivision (n)(1) which provides that the juvenile court may designate a current caretaker “as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process.” Whenever there is the proposed removal of a child from the custody of a caretaker who “would have met the threshold criteria to be designated as a prospective adoptive parent . . . on the date of service of the notice of proposed removal of the child may file . . . a petition for an order designating the caretaker as a prospective adoptive parent . . . .” (§ 66.26, subd. (n)(3)(B). The hearing on this petition is required to be heard as soon as possible, but in no event later than five days after the petition is filed with the court or the court sets a hearing upon its own motion. In this case, appellants and Stella requested prospective adoptive parent status and the court set the matter for hearing.
“If the court determines that the caretaker did not meet the threshold criteria to be designated as a prospective adoptive parent on the date of service of the notice of proposed removal of the child, the petition objecting to the proposed removal filed by the caretaker shall be dismissed.” (§366.26, subd. (n)(3)(B), emphasis added.)
The motion for prospective adoptive status was filed on October 26, 2006. The motion was heard on January 2, 2007, and denied by the juvenile court. The juvenile court found that Stella fit all of the minimum statutory qualifications except the minimum six-month statutory residency requirements as to Alize and D. The juvenile court held that the six-month period of residence for prospective adoptive parent status was mandatory and absolute. Appellants suggest that the trial court’s interpretations would “defeat the purpose of the law.” Appellants also contend that the “juvenile court’s failure to apply section 366.26, subdivision (n) to Stella via Carlos, then not considering the siblings because they had not lived with Stella for six months was an abuse of discretion.”
We agree with the juvenile court that although Stella did qualify as PAP as to Carlos, she did not meet the requirements for that status as to D. and Alize and the juvenile court did not err by denying Stella that designation. The PAP provisions were intended to avoid disruption of a long term placement and a six-month custody period was selected by the legislature as the minimum residency to qualify for that treatment. We think that the minimum time requirement is reasonable and are not in a position to modify the legislation. The juvenile court’s direction that you had to go the appellate court “if you want to change the law” was not accurate. We are not the proper forum to “change the law.” D. and Alize only lived with Stella for approximately three months before they were removed. They were not close to meeting the minimum statutory requirement. Without deciding whether there might be exceptions to the six-month statutory minimum residence requirement, we hold the facts of this case do not compel that result.
Appellants also contend that section 16002, subdivision (2) requires the juvenile court to consider the sibling relationship in deciding on the placement of children. We see no violation of the terms or spirit of section 16002, subdivision (2) in the decisions of the juvenile court. Throughout the entirety of this case, the juvenile court worked very hard to keep D. and Alize together in their placement. Earlier in the process efforts were also made to facilitate visitation with the half-siblings. However, according to the record, there had been no visitation between Carlos and any of his siblings prior to D. and Alize being placed with Stella A. The girls were placed with their sibling Carlos and they were removed together. After removal, the court ordered visitation between these children. The available evidence is that the court was trying to respect and support the sibling relationships. Appellant’s argument seems to suggest that designating Stella A. as PAP was essential to maintaining the sibling relationship. But that is not proven and Stella A.’s residence is not the only location where the sibling bond can be maintained.
Best Interests of the Minors
A prospective adoptive parent does get protection from the unjustified removal of a minor from a long-term caregiver. To protect against such an occurrence the legislature enacted subdivision (n) of section 366.26, to provide for a hearing to review an agency’s decision to remove a child from the home of a prospective adoptive parent. Unless there is an immediate risk of physical and emotional harm to the child, the child may not be removed from the home of the designated prospective adoptive parent unless the court finds that removal is in the child’s best interest. (§ 366.26, subds. (n)(3)(B), (n)(4); Cal. Rules of Court, rules 5.727, 5.728.) Except in an emergency situation, a hearing must be held before the child is removed from the home of a prospective adoptive parent. In an emergency situation, the agency can remove the child and hold the hearing afterward. The DCFS has the burden to prove by a preponderance of the evidence that the proposed removal is in the best interest of the child. (Cal. Rules of Court, rule 5.727(g).) The statute then provides for speedy judicial review of both emergency and nonemergency removals from a prospective adoptive parent. (§366.26, subds. (n)(3) & (4).)
Appellate proceedings do not stay childhood. A reviewing court “cannot simply unwind a juvenile case and presume that circumstances cannot have changed in the interim.” (In re S.D., (2002) 99 Cal.App.4th 1068, 1083.) A reversal of a prior order cannot possibly return the case to the circumstances that were present at the time of the prior order. (In Arturo A. (1992) 8 Cal.App.4th 229, 245.) A finding that the court would not have removed the child from the prospective adoptive home at an earlier proceeding does not dispositively establish that, at the time of a remanded hearing, the return of the child to the prospective adoptive parent is in the child’s best interest. (Cf. In re Stephanie M. (1994) 7 Cal.4th 295, 322.)
Stella A. qualified as a PAP for Carlos, but not for the girls. The court conducted a full evidentiary hearing about the events leading up to the removal of the children from Stella’s residence. The juvenile court then held it was in the best interests of the minors that they be removed from her care. The trial court, in reviewing a child’s placement after parental rights are terminated, must assess the Agency’s post-termination placement within the context of the child’s best interests. (In re Shirley K. (2006) 140 Cal.App.4th 65.)
We review a juvenile court’s custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) “Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘“if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’ [Citation.]” (In re Robert L., supra, 21 Cal.App.4th at p. 1067 .)
Applying these standards, we conclude the juvenile court did not err in removing the children from the custody of Stella. There were allegations of physical abuse and evidence that Stella was finding the role of parenting the three siblings to be more difficult and challenging than she anticipated. The juvenile court found these allegations to be credible and they were the reason for removing the children. We do not second guess the court’s credibility calls or reweigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Therefore substantial evidence supports the court’s ruling and its decision to remove the children was not an abuse of his wide discretion. The juvenile court added to its explanation of the reasons for removing Carlos from Stella’s care that there was a “lack of supervision.” Although this specific complaint was not part of the allegations against Stella, we nevertheless find no error in the court’s decision to remove Carlos from her care. The same evidence which supported the removal of D. and Alize would support the decision to remove Carlos. It does not matter how the court decided to characterize its decision making. The decision to remove Carlos from Stella’s care was within the court’s broad discretion to determine the best interest of the child.
De Facto Parent Status
Appellants contend that Stella “should have been considered a de facto parent and had the rights and privileges of that status.” She did not apply for de facto parent status. When a parent in a child dependency proceeding does not raise an issue in the trial court, he or she is precluded from raising the issue on appeal, particularly when the issue requires a finding of fact. (In re Jonathon S. (2005) 129 Cal.App.4th 334; In re X.V. (2005) 132 Cal.App.4th 794.) Therefore a further contention in this case related to the ineffective assistance of counsel allegation is that trial counsel erred by not applying for de facto parent status for Stella. However, the analysis of this contention leads to the same conclusion as the PAP discussion above. Stella would not have qualified as a “de facto parent” for D. and Alize and if Carlos allowed her to qualify, the ultimate result would not have changed.
California’s doctrine of de facto parent status is a judicially created doctrine, spelled out in the California Rules of Court, rule 5.502 which provides: “‘De facto parent’ means a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” “De facto parent” status grants qualified persons standing to participate as interested parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. The purpose of conferring de facto parent status is to “ensure that all legitimate views, evidence and interests are considered in dispositional proceedings involving a dependent minor.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) “The de facto parent may: [¶] (1) Be present at the hearing; [¶] (2) Be represented by retained counsel or, at the discretion of the court, by appointed counsel; and [¶] (3) Present evidence.” (Cal. Rules of Court, rule 5.534(e).)
However, de facto parent status does not give a party the right to the continued placement of the minor in their home. As our Supreme Court observed, “even those who attain the status of de facto parenthood ‘are not equated with . . . parents or guardians for purposes of dependency proceedings and standing to participate does not give them all of the rights and preferences accorded [parents or guardians]. [Citations.] . . . .’ [Citations.]” (In re Kieshia E., supra, 6 Cal.4that p. 77.) The juvenile court’s decision to remove the children from Stella’s care would have been subject to the same analysis and same result discussed above. Had Stella’s counsel requested “de facto parent” status, the trial court would not have erred in denying the request and therefore no prejudice can be shown.
Attaining the status of de facto parents allows individuals to participate “as parties” in hearings by being present and represented by counsel and by presenting evidence. (Rule 5.534(e).) As such, they are entitled to the same procedural rights as natural parents. “Although . . . de facto parents do not have all the substantive rights and preferences of legal parents or guardians, they have been afforded procedural rights in order to ‘assert and protect their own interest in the companionship, care, custody and management of the child’ [citation], and to ‘ensure that all legitimate views, evidence, and interests are considered’ by the juvenile court in dependency proceedings. [Citation.]” (In re Jonique W. (1994) 26 Cal.App.4th 685, 693.)
DISPOSITION
The appeal filed on January 4, 2007 is dismissed.
We concur: RUBIN, J., FLIER, J.