Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD221155
BLEASE, J.
In case No. C058065, John P. (father) and Sa.P. (mother) (hereafter collectively referred to as parents) appeal from the orders of the juvenile court sustaining a supplemental petition and removing the minor from father’s custody. (Welf. & Inst. Code, § 387, 395; undesignated statutory references are to this code.) In this appeal, parents make numerous claims of error, including contentions that the court applied the wrong standards at the hearing, there was insufficient evidence to support the court’s findings and orders, the de facto parents were improperly permitted to participate in proceedings, the visitation order was invalid, and the court should have granted mother’s Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
In case No. C059668, parents appeal from the orders of the juvenile court terminating their parental rights. (§§ 366.26, 395.) Father revisits the arguments he made in case No. C058065 regarding the hearing on the supplemental petition. He also complains that he was unable to subpoena certain witnesses and that the juvenile court was biased. Mother asks this court to review the orders made at the section 366.21, subdivision (e) hearing at which reunification services were terminated, claiming her counsel was ineffective for failing to file a writ notice. She argues the juvenile court abused its discretion in terminating reunification services after only six months and she was denied due process by the court’s order that she not disclose her parental relationship to the minor at visitation. Mother also reiterates her argument in case No. C058065 that the juvenile court improperly denied her Marsden motion.
Father represents himself on appeal in case No. C059668.
On June 23, 2009, this court ordered the appeals consolidated for decision. We address parents’ contentions in turn and affirm.
BACKGROUND
The minor was taken into protective custody on December 31, 2003--two days after his birth--because father and mother had engaged in a verbal altercation at the hospital. The Alameda County Social Services Department (the Department) was concerned for the minor’s well-being because mother had a recent history of psychiatric hospitalization and the family had not followed through with previously offered voluntary services to address domestic violence issues. Father had a 2003 misdemeanor conviction for inflicting injury upon mother’s older child, H., who subsequently moved to Japan to live with her father.
The minor was returned to parents’ custody on January 8, 2004. The section 300 petition was sustained after an uncontested hearing and, on January 29, 2004, the minor was adjudged a dependent of the court. The juvenile court ordered the minor to remain placed with the parents, ordered family maintenance services and scheduled a three-month review hearing to determine whether dependency should be dismissed.
The Department’s interim review report for the April 28, 2004, hearing recommended that dependency be dismissed. The Department reported that the parents had complied with the maintenance plan, father was the primary caretaker, and there were no current safety concerns. Although both parents had attended 11 counseling sessions and mother had attended an appointment for psychiatric services, they had not signed the necessary forms to authorize the release of information about their counseling sessions. Accordingly, the hearing was continued to permit the parents to sign the appropriate forms.
Father did not sign the release forms. Thus, in its report for the May 26, 2004, hearing, the Department retracted its recommendation that dependency be dismissed. The Department recommended that father participate in anger management classes and recommended that the parents participate in additional couples’ therapy. The hearing was continued to get a different Japanese interpreter for mother and to receive a report on the parents’ couples’ therapy.
The parents’ counselor reported that the parents did not think they needed counseling, that father thought the Department was being unfairly accusatory, and that father was controlling and hostile. The juvenile court found that counseling had been unproductive and ordered additional services (including psychological evaluations, separate counseling for mother, further couples’ counseling, and anger management for father).
On June 10, 2004, father reported that he and mother had moved to Sacramento, but they had not yet provided the Department with their new address by the time the social worker prepared the progress report for the July 12, 2004, hearing. The report noted there was no indication of any case plan compliance for the previous month.
A contested six-month review hearing was held on August 25, 2004. The social worker reported that the minor was doing well in the home, although there was some concern regarding bonding. Because of the parents’ recent behavior, along with the contents of the counselor’s report, the social worker did not recommend dismissal of the dependency. The social worker explained: “I see a lot of risks. I am concerned about the parents’ ability to care for the minor and to -- concerned about the minor’s safety, given that the parents have not addressed their communication problems and their domestic violence history and I’m concerned about the minor being affected by that.” Father testified that he had cooperated with the therapist, and had attended anger management classes and completed parenting classes as part of his probation. The court found the parents had not complied with the case plan because they had not benefited from counseling and had not obtained psychological evaluations. The court also considered detaining the minor, in part because the parents had moved to Sacramento to remove themselves from the jurisdiction of the Department and the juvenile court in Alameda County. After finding the conditions leading to jurisdiction continued to exist, the court transferred the case to Sacramento County.
The Sacramento County Department of Health and Human Services (DHHS) prepared a transfer-in disposition report on November 4, 2004. DHHS stated that the parents had not made themselves available during the previous two months. The parents were either moving around or splitting their time among several locations, making it impossible to verify an address within the county. DHHS’s assessment was that the minor was at high risk of neglect or abuse, and the social worker recommended the case be transferred back to Alameda County.
On November 22, 2004, father complained to the court that he did not feel his attorney was acting in his best interests and that his attorney had been giving opinions that differed from those of the other attorney. The juvenile court relieved appointed counsel but did not appoint new counsel.
Father was not present at the December 16, 2004, pretrial conference, although he was apparently near the courthouse taking care of the minor. On the court’s own motion, the minor was ordered surrendered to DHHS by 5:00 p.m. that evening because the court was concerned the parents were likely to flee the jurisdiction while the case was pending.
On December 20, 2004, DHHS filed a section 387 petition stating that the minor had been removed from the parents’ home because the parents were not cooperating. Father was not present at the detention hearing that was held the following day. The minor was ordered detained based on findings, among others, that there existed a “substantial danger to the physical health of the child” and the parents were likely to flee the jurisdiction.
The section 387 jurisdiction and disposition report reiterated that the parents had been uncooperative. The minor’s mother was in Japan indefinitely, and the social worker had been unable to verify father’s address.
Father represented himself at the March 2005 trial. Shortly before trial, the section 387 petition was amended to allege that father had unresolved mental issues that placed the minor at risk. The court sustained the allegation, finding father had mental health issues that had not been addressed in therapy, and therefore, the minor was at risk in that father was controlling, hostile, evasive, and paranoid. The court found no evidence father had done anything individually to harm the minor. Nevertheless, father had been uncooperative. The court ordered the minor placed with father under DHHS’s supervision and ordered father to undergo psychiatric and psychological evaluations and to participate in counseling. Father appealed in case No. C049864 from this order.
On April 19, 2005, a month after the court’s section 387 orders, DHHS filed another section 387 petition. The petition alleged father had failed family maintenance services because he did not make himself and the minor available. DHHS further alleged that it believed father had moved back to Alameda County.
On April 26, 2005, the juvenile court detained the minor. Father was not present at the May 17, 2005, section 387 hearing. The juvenile court sustained the allegations in the petition and continued reunification services. Father was also absent at the August 29, 2005, permanency hearing. The juvenile court terminated reunification services and set a section 366.26 permanency planning hearing.
Father was personally served with notice of the section 366.26 hearing. Mother was still not participating in the proceedings and was apparently still in Japan. The hearing was held on December 12, 2005. Neither parent was present at the hearing and the juvenile court terminated parental rights.
Father appealed in case No. C051569 from the order terminating his parental rights. This court consolidated father’s appeals in case Nos. C049864 and C051569. We concluded that the juvenile court erred prior to the filing of the section 387 petition when it dismissed father’s counsel without appointing new counsel. Accordingly, we vacated and remanded as follows: “The March 17, 2005, orders of the juvenile court made at the section 387 hearing and the December 12, 2005, orders of the juvenile court made at the section 366.26 hearing are vacated. The matter is remanded with directions to the juvenile court to conduct a new section 387 hearing, considering the circumstances as they exist at the time of the new section 387 hearing, after providing appellant [father] with proper notice and appointing counsel to represent him.”
DHHS filed a new section 387 petition and the juvenile court ordered visitation to immediately resume. The court authorized emergency detention of the minor, who was physically in the custody of his foster parents, and ordered the minor detained at the subsequent June 26, 2007, detention hearing. DHHS made referrals for reunification services to the parents. The hearing on the section 387 petition commenced on October 29, 2007, and continued for approximately 17 days, ending on December 24, 2007, when the court took the matter under submission.
The section 387 supplemental petition, as amended and sustained by the juvenile court, stated that the previous disposition has not been effective in the protection or rehabilitation of the child in that:
We shall discuss the evidence presented at the hearing relevant to the issues on appeal in the Discussion.
Father requested a contested hearing on disposition. The juvenile court set the hearing for January 11, 2008, and ordered both parents to be present. The parents, however, did not appear at the January 11, 2008, hearing. The court found no good cause to continue the hearing and, after hearing additional argument, found a substantial risk to the minor and ordered the minor to remain in confidential placement. The court ordered parents referred for psychological evaluations for the purpose of tailoring services.
The section 366.21, subdivision (e), review hearing was scheduled to take place on February 6, 2008. The parents did not appear at the hearing. Although mother did not inform counsel or the court of the reason for her absence, father told his attorney he was ill. The review hearing was reset for a contested hearing at the request of father’s counsel.
The parents did not appear at the pretrial conference and had not informed counsel of the reason for their failure to appear. Father attended the scheduled contested hearing on February 28, 2008, but mother did not. The hearing was reset.
A Japanese interpreter was required for mother at the hearings and mother had been repeatedly absent without having previously notified the court or counsel. Mother was admonished that she must inform the court or counsel in advance if she was unable to appear at hearings because of the time and expense of assuring the presence of the interpreter.
Mother attended the March 18, 2008, contested hearing but father did not. Mother testified she had signed up for parenting classes and had attended three sessions, the first of which was held February 21, 2008. She also had attended a counseling session. Neither she nor father had completed the psychological evaluation ordered by the court.
The juvenile court explained its findings and orders thoroughly on the record. After discussing the evidence, the court found the parents had not participated regularly in the case plan or made substantive progress in their services. At this point, mother argued with the court and then stormed out of the courtroom. The court continued, finding reunification “extremely” unlikely and the parents “unwilling” to benefit from additional reunification services. The court terminated reunification services.
Father filed a petition for extraordinary writ relief. This court denied father’s petition on the merits pursuant to Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513-1514. (John P. v. Superior Court, C058821, June 24, 2008 [order].)
The section 366.26 hearing was held on August 6 and 7, 2008. Mother testified at the hearing. Both parents made unsuccessful Marsden motions at the hearing. Father accused the court of fabricating evidence and, when his Marsden motion was denied, defied the court’s order and disruptively left the courtroom. The juvenile court heard argument and, thereafter, terminated parental rights.
DISCUSSION
I
Father contends the juvenile court erroneously placed the burden on the parents to disprove the allegations of the section 387 supplemental petition. We reject his contention.
Section 387 provides in relevant part as follows: “(a) An order changing or modifying a previous order by removing a child from the physical custody of a parent... and directing placement in a foster home, or commitment to a private or county institution, shall be made only after noticed hearing upon a supplemental petition. [¶] (b) The supplemental petition... shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child....”
“The ultimate ‘jurisdictional fact’ necessary to modify a previous placement with a parent or relative is that the previous disposition has not been effective in the protection of the minor. [Citations.] The department must prove the jurisdictional facts by a preponderance of legally admissible evidence. [Citations.]” (In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)
Father cursorily asserts that the juvenile court placed the burden on the parents to disprove the allegations of the section 387 petition. To support his assertion, father simply takes two isolated statements out of context from the surrounding language and the juvenile court’s nine-page explanation of its ruling. He then summarily asserts that “[o]n that basis alone, this court should reverse the findings made by the trial court.” This court need not consider such an undeveloped argument. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard contentions perfunctorily asserted without development].)
In any event, we reject his contention that the language used by the juvenile court when it provided its explanation of its ruling to the parties establishes that the court utilized the wrong standard. The juvenile court explained its ruling as follows:
“This court finds by a preponderance of the evidence that the allegations in this petition are true and that the prior disposition has been ineffective in the protection of the minor. That is, that the statement of facts as alleged in the [section] 387 petition s-1 through s-7 are true by a preponderance of the evidence, and that they are sufficient by a preponderance of the evidence to support the conclusion that the prior disposition was not effective in protecting [the minor].
“The leap from finding the allegations in the petition true and then also finding that in light of them being true that the prior disposition was ineffective bears discussion.
“One may argue, as I believe [mother’s counsel] did, that these are allegations for the most part relating to parental behavior and family functioning in 2003 and 2004 and some in 2005 but what is relevant is the now. We are in 2007. How are the parents doing now? How does the family function now? This is a valid point to consider. It is a much easier case to be sure when the allegations are from current behavior.
“This court will note that some of the behavior noted in the petition is more recent, specifically the incident with [father] and Ms. Karadsheh, K-A-R-A-D-S-H-E-H, at the CPS building. That is the s-2 allegation –- part of the s-2 allegation. Notwithstanding this argument the parents have not presented sufficient evidence to overcome the fact that even the allegations as they stand now, even given the age of the conduct, behavior or family functioning that they establish that it is more likely than not that the previous disposition has not been effective in protecting the child. For example, there has been no proof that even though as stated in the s-1 [allegation] the child was removed in December 2004 due to parents’ failure to comply with court orders, failed to make themselves available for services to minimize the risk, that the parents are no[t] willing and able to comply and make themselves available. There’s simply no proof that they are willing to do so even now. In fact, the proof is to the contrary.” (Italics added.)
Thereafter, the juvenile court explained in detail how each allegation of the petition had been proved by a preponderance of the evidence.
Father quotes only the italicized language above and summarizes the portion following the italicized language as the court giving as an example “the fact that the parents had failed to provide any evidence to refute the s-1 allegation.” He claims this establishes the juvenile court placed the burden of proof on the parents. It does not.
The s-1 allegation stated that the minor was declared a dependent child in January 2004 because of paternal violence and maternal mental instability, and that the minor had been removed from the parents’ custody in December 2004 because of the parents’ failure and/or refusal to comply with court-ordered services to minimize the risk to the minor. Prior to its ruling, the court had provided a 24-page history of the case, which detailed the parents’ lack of participation in services. Read in context, the juvenile court’s statement refers to the fact that the evidence established nothing had changed in this regard. Indeed, the parents did not even allege otherwise. The court was explaining how the allegation regarding the past was relevant to the current situation and issue presented. It was not shifting the burden to the parents to disprove the allegations of the petition.
II
Both father and mother contend the evidence was insufficient to sustain the section 387 supplemental petition allegations and to determine that the previous disposition (placement with father) had not been effective in protecting the minor.
In considering parents’ claim, we apply the substantial evidence rule. We must review the entire record in the light most favorable to the orders challenged and determine whether substantial evidence supports the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In this case, the record contains sufficient evidence to support the finding by the juvenile court that the previous disposition orders had not been effective in protecting the minor. (Cf. In re Joel H. (1993) 19 Cal.App.4th 1185, 1200, 1203.)
Mother has a history of unresolved mental health issues. Mother was held pursuant to section 5150 in 2001, April 2002, and February 2003 (less than a year before the minor was born). She has been diagnosed with Adjustment Disorder with Anxious Mood and has twice been prescribed anxiolytic medication. She has been hospitalized because of her mental health issues and, in 2001, she threatened to kill herself by holding a knife to her throat. The juvenile court ordered mother to participate in counseling and a psychiatric evaluation. Yet, despite the order and subsequent referrals, mother failed to participate in either. There was also no evidence that mother was taking any medications to address her mental health issues.
The parents also have a history of domestic violence and father has a history of anger management issues. Mother was admitted to a medical center twice in February 2003 for physical injuries. On February 22, 2003, mother “‘was admitted for numerous bruises, left facial trauma, and high blood pressure.’” Mother had reportedly attempted to break up a fight between father and his stepdaughter, H. The week prior to that incident, mother had been in the emergency room with swelling on her cheek and numerous scratch marks. Father was convicted of physical child abuse of H. in August 2003. Mother blamed H. for the incident. Subsequent to father’s conviction, the court entered a restraining order prohibiting father from contact with H.
Mother later sent H. to Japan to live with her biological father to avoid further difficulties with child protective services and the courts.
The minor was born four months after father’s criminal conviction for child abuse. Although father had already been participating in a weekly anger management program for two months, he and mother engaged in a highly emotional, verbal altercation at the hospital after the minor’s birth, with the newborn minor present in the hospital bed. Mother was crying and pacing, and father was shouting. Mother attempted to calm father but he continued his shouting and arguing. Father refused to allow H. into the hospital room. Mother had apparently condoned father’s violation of the restraining order by allowing father to move back into the family residence. She got down on her knees and begged the social worker, who was then present, not to have father arrested.
Father completed a 52-week anger management program in October 2004, which was ordered as a result of his child abuse conviction. He continued, however, to demonstrate anger control problems. For example, in June 2006, a Nevada social worker went to check on the welfare of the parents’ younger child, S., after receiving a child abuse referral. Father threatened the social worker, yelling and using profanity, and she was forced to seek a court order to check on the minor. Before she could obtain the court order, however, father sent mother and S. to Japan to avoid further interference.
Another example of father’s anger control issues took place on May 22, 2007. On this date, father went to the office of the DHHS social worker, Ms. Karadsheh, without an appointment. When Ms. Karadsheh addressed him by his first name, he approached her and told her she was to address him as Mr. P[.] He then addressed Ms. Karadsheh by her first name and she requested that she be given the same courtesy. Father responded that he did not care and became irate. Ms. Karadsheh advised father that she would need to discontinue the meeting unless he changed his disrespectful demeanor, but father became even louder. An officer intervened and told father his disruptive behavior was unacceptable and he would need to leave the building. Father became very loud again and announced he had “won” his appeal. Father had to be escorted from the building.
Yet another example of father’s uncontrolled anger issues took place in court. During his November 27, 2007, Marsden hearing, father repeatedly insisted that the court and parties had been “wasting time.” Referee Daniel Horton tried to explain to father why certain evidentiary and procedural matters were not a waste of time, and the following exchange took place:
“FATHER: No. I don’t think you understand how they’re polluting the record, and this record shows up in other states as if it were true. And you have the two letters from the other Cali
“THE COURT: Mr. P[.]
“FATHER: -- Reno, Nevada social worker which show that all the allegations were disproved.
“THE COURT: You need to keep your temper down.
“FATHER: Okay? And now we’re here four months.
“THE COURT: Sir, listen to me. I am not going to sit here and have you yell at me. Do you understand me?
“FATHER: Don’t talk down to me after what he did in September, okay?
“THE COURT: Okay. That’s it. Take him out of the court. Let him cool down.
“THE BAILIFF: Let’s go.
“FATHER: Remember September? You talked to me like a juvenile.
“THE COURT: Keep going, Mr. P[.].
“FATHER: I’m not taking that crap, Horton.”
After a five-minute recess to allow father to calm down, the court admonished father not to point his finger at the court and yell at the court again.
Despite these mental health, domestic violence, and anger management issues, the parents not only refused to participate in services, but insisted that no services were necessary.
Moreover, the social workers could not even adequately monitor or supervise placement with father. Throughout the history of this case, parents appeared to be moving around and splitting their time between locations, making it impossible for the social workers to verify their address or visit the minor in the home. The disposition order, which placed the minor with father with supervision and maintenance services, was entered on March 17, 2005. A month later, DHHS had to file a petition with the court, as father had not made himself or the minor available and it was believed father had taken the minor and moved out of the county. The minor was later found with father in a filthy and dangerous apartment in Alameda County.
In sum, the evidence was sufficient to find that placement with father with supervision and maintenance services was wholly ineffective in protecting the minor because father had prevented DHHS from being able to supervise the placement and neither parent had participated in services.
III
Father and mother next contend that, even if the evidence was sufficient to find the allegations of the section 387 supplemental petition true, there was not clear and convincing evidence of substantial danger to the minor to support removal. We disagree.
Section 361, subdivision (c), provides in relevant part: “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances...: [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody....”
As a preliminary matter, we reject father’s additional contention that the juvenile court did not make the proper finding that there was a “substantial danger” to the minor, and instead, found only a “detriment” to the minor if the minor remained in the father’s home. Although the juvenile court stated, in explaining its findings, that “[t]he evidence before me is clear that return would be detrimental to the child,” the court’s order specifically states, “The Court finds by clear and convincing evidence: [¶] There is a substantial danger to the [child’s] physical health/safety, protection or emotional well-being or would be if the child was returned home and there are no reasonable means by which the child’s well-being can be protected without removing the child from the [parents’] physical custody.” (Italics added.) Thus, the record establishes the juvenile court employed the proper standard in making the necessary finding for removal of the minor from the parents’ physical custody.
The evidence also supports the juvenile court’s findings. As stated above, mother has a history of mental health issues. As a result of these mental health issues, she has been hospitalized, held three times pursuant to section 5150, and threatened suicide. She has been diagnosed with Adjustment Disorder with Anxious Mood and previously prescribed anxiolytic medication. Despite this mental health history, mother refused to undergo the court-ordered psychological examination or to participate in individual therapy. She indicated during her testimony that she did not believe she had a mental health issue or need of services. And there was no evidence that she was currently taking medication for her disorder.
Father’s anger control and violence issues were also not adequately addressed. While father participated in an anger management program prior to and during the beginning of this case, he continued to demonstrate anger control issues. He became loud and disruptive at the social worker’s office, requiring an officer to escort him from the building, and again in court, requiring the bailiff to remove him for a recess and the court to admonish him. Father refused to participate in further anger management services or to meaningfully participate in couples’ counseling. Thus, father’s anger control issues, which previously had resulted in domestic violence, remained unaddressed. Likewise, mother had failed to meaningfully participate in couples’ counseling, failed to participate in individual counseling, and failed to participate in domestic violence services.
Indeed, father’s own psychologist did not recommend returning the minor to parents’ custody. Father refused to undergo psychological testing or to participate in therapy. He did, however, meet with a psychologist of his choice for an hour and half for purposes of providing evidence at the hearing. That psychologist stated father did not exhibit any anger control issues, but the psychologist also stated father minimized his symptoms, explained that the incident with H. was “not nearly as bad as it sounded,” and did not inform the psychologist of any prior instances of violence with mother, even the incident that gave rise to the original section 300 petition. Nonetheless, father’s own psychologist testified he thought “it would be a little premature” to place the minor back in father’s custody, not only because the minor had been out of the home for so long, but also because of “where the parents are with regard to their situation in life.” He explained that services were necessary prior to the minor going home so that the parents could become adequate parents.
Despite this evidence, father and mother insist that the family circumstances had “changed drastically” since the unstable conduct in the hospital and the filthy and dangerous home in which DHHS found the minor and father in April 2005. They quote this court’s order that the juvenile court consider the evidence at the time of the new section 387 hearing, and accuse the juvenile court of improperly focusing on the problems that had existed in the past. We reject parents’ contention that the juvenile court did not consider “current” evidence as instructed by this court.
First, the parents’ past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.) When deciding whether a child presently needs the juvenile court’s protection, “past conduct may be probative of current conditions” if there is reason to believe that conduct will continue. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; see also In re S.O. (2002) 103 Cal.App.4th 453, 461.) Thus, the juvenile court appropriately considered present circumstances in light of the parents’ history.
Second, as recapitulated above, there was evidence of several recent instances of father’s ongoing uncontrolled anger and hostility, such as his outbursts at the social worker’s office and in court. Indeed, the juvenile court noted such behavior in explaining its findings:
“One may argue, as I believe [mother’s counsel] did, that these are allegations for the most part relating to parental behavior and family functioning in 2003 and 2004 and some in 2005 but what is relevant is the now. We are in 2007. How are the parents doing now? How does the family function now?...
“This court will note that some of the behavior noted in the petition is more recent, specifically the incident with Mr. P[.] and Ms. Karadsheh [the DHHS social worker].... [E]ven given the age of the conduct, behavior or family functioning that they establish[,]... there has been no proof... that the parents are now willing and able to comply and make themselves available [for services to minimize the risk to the minor]....
“The same can be said for each allegation. No proof has been shown that the parents have rectified the past behaviors which posed and continue to pose a risk to [the minor]. The evidence proves the contrary, that the parents continue to deny and/or minimize their behavior, continue to reject services, continue to be resistive to help or even acknowledge the need for help. They continue to be evasive and even untruthful and to, in this Court’s view, to be a flight risk to the child. They have even presented evidence by their own expert that return would be inappropriate. [¶]... [¶]
“Further, the parents’ testimony regarding their supervision or lack of the same regarding H[.] is very telling in[]deed. Their lack of concern and regard for that child and behavior related to housing the child in a hotel for the reasons stated in testimony are shocking and indicate that they have not rectified the issues that led [the minor] to this Court....”
At the time of the detention hearing in June 2007, 16-year-old H. was being housed by parents in a hotel instead of living with them. The innkeeper watched over her for a month or two, and she babysat for the parents. Father testified that the parents had her stay at the hotel “[b]ecause [if] she’s in the house she’s going to play the GameBoy and not get anything done. If she’s in a hotel room and she has her text books she can both watch TV, not bother me, and she has to study for her GED.”
These comments demonstrate that the juvenile court was appropriately considering the present circumstances in light of the parents’ history. The parents’ ongoing behavior shows that the minor’s placement with father would put the minor at substantial risk of danger.
Finally, the parents are entirely responsible for the lack of more current evidence. Their consistent refusal to cooperate with the court and DHHS hindered the court’s ability to implement the procedures intended to benefit the interests of the dependent minor. The parents thwarted DHHS in every attempt to gather information for the juvenile court’s consideration. The parents demonstrated a history of mental health, domestic violence and anger control issues. Yet, they refused to undergo court-ordered psychological testing, making it impossible for the court to determine appropriate services or placement.
DHHS had previously located the minor in a filthy and dangerous home with father, resulting in the earlier detention of the minor. Yet the parents refused DHHS access to evaluate their current home. In fact, father called the police when the social worker came to visit the home, claiming she was trespassing. The parents then offered the report of an out-of-state social worker, applying unknown standards, and the report of an investigator father hired and invited to inspect their home at a time approved by parents.
The implication from the parents’ refusal to allow DHHS access to current information is that such information would be detrimental to the parents’ position that their circumstances had changed for the better.
IV
Father next contends that the visitation order entered at the section 387 hearing impermissibly delegated authority to the social worker to determine whether any visitation would occur.
“Every order placing a minor in foster care and ordering reunification services must provide for visitation between the parent and the minor as frequently as possible, consistent with the well-being of the minor. (§ 362.1, subd. (a).) The court may deny a parent visitation only if visitation would be harmful to the child’s emotional well-being. [Citation.] The juvenile court has the sole power to determine whether visitation will occur and may not delegate its power to grant or deny visitation to the [social worker]. The court may, however, delegate discretion to determine the time, place and manner of the visits. Only when the court delegates the discretion to determine whether any visitation will occur does the court improperly delegate its authority and violate the separation of powers doctrine.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.)
Here, the visitation order provided as follows: “The parents... shall have regular visitation with the child, [...], consistent with the child’s well[-]being. The Department of Health and Human Services shall determine the time, place and manner of visitation, including the frequency of visits, length of visits, and whether the visits are supervised and who supervises them. [DHHS]’s discretion shall extend to determining if and when to begin unsupervised overnight and weekend visits. The parents shall not be under the influence of alcohol or controlled substances during visits and if found to be so, that visit shall be terminated. [DHHS] may consider the child’s desires in its administration of the visits, but the child shall not be given the option to consent to, or refuse, future visits[.]” This visitation order did not impermissibly delegate to DHHS the juvenile court’s authority to determine visitation.
In In re Moriah T. (1994) 23 Cal.App.4th 1367 (Moriah T.), the father challenged the order terminating reunification services, scheduling a selection and implementation hearing, and granting continued visitation with his children pending the section 366.26 hearing. (Moriah T., supra, 23 Cal.App.4th at p. 1371.) The father argued the continued visitation order improperly delegated to the social services agency the authority to determine whether visitation occurred, since it did not specify the frequency and length of visits. (Ibid.) This court disagreed, noting the court ordered visitation and properly delegated the details to the agency. (Moriah T., supra, 23 Cal.App.4th at pp. 1373-1377.)
The continuing visitation order here is consistent with the one we approved in Moriah T. “[T]he role of the agency and its agent is subject to the juvenile court’s supervision and control. Accordingly, if the agency is abusing its responsibility in managing the details of visitation, [the father] may bring that matter to the attention of the juvenile court....” (Moriah T., supra, 23 Cal.App.4th at p. 1377.)
V
Mother contends the juvenile court erred by granting the minor’s foster parents de facto parent status and allowing them to fully participate in the proceedings. Specifically, she argues that, as de facto parents, they should not have been permitted to advocate against the parents in proving the allegations of the section 387 supplemental petition.
In her heading, mother also asserts that the juvenile court erred by granting the foster parents de facto parent status without providing notice to the parents. To the extent that this assertion is intended to be a separate argument, this claim has not been fully and properly briefed, as mother has presented no argument or analysis and the only facts relating to such a claim are contained in a footnote. As such, we decline to consider it. (See People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [court need not consider claim unsupported by specific legal argument and citation of authority].)
As an initial matter, mother lacks standing to challenge the juvenile court’s ruling granting the foster parents de facto parent status. “[A] parent cannot raise issues on appeal from a dependency matter that do not affect her own rights. [Citation.]” (In re Frank L. (2000) 81 Cal.App.4th 700, 703.) Mother’s interest in the dependency proceeding is to reunify with her child. (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.) The de facto parents’ nexus with the proceeding is a separate interest and relationship with the child. (Ibid.) Mother’s interests are not materially affected or prejudiced by the juvenile court’s decision to grant de facto status to the foster parents. (In re Daniel D. (1994) 24 Cal.App.4th 1823, 1835.)
Moreover, the juvenile court did not err in permitting the de facto parents to participate in the proceedings. A de facto parent has “the right to be present at the dependency hearing, to be represented by counsel, and to present evidence.” (In re Crystal J. (2001) 92 Cal.App.4th 186, 191; Cal. Rules of Court, rule 5.534(e).) California Rules of Court, rule 5.534(e), provides that de facto parents may “participate as parties in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue.”
Relying on the above language, mother contends that the participation of de facto parents should have been limited to the dispositional phase of the section 387 hearing. She argues that the juvenile court erred in permitting the de facto parents to participate in the “jurisdictional” aspect of the section 387 hearing because it preceded the dispositional aspect. Her argument lacks merit.
The juvenile court is required to conduct a bifurcated hearing on a section 387 petition using the procedures prescribed for the initial jurisdiction and disposition hearings. A section 387 petition, however, necessarily follows the disposition hearing. Indeed, the allegation made in a section 387 petition is that the “previous disposition” has not been effective in protecting the minor.
California Rules of Court, rule 5.565(e), which governs hearings on subsequent and supplemental petitions, provides for a bifurcated hearing as follows:
Here, the foster parents were granted de facto parent status on August 28, 2006-–several years after the disposition hearing adjudging the minor a dependent child of the court. They were, therefore, permitted to participate in the entire hearing on the section 387 petition as a “hearing [after disposition] at which the status of the dependent child is at issue.” (Cal. Rules of Court, rule 5.534(e).)
Mother also complains that the juvenile court did not restrict the de facto parents’ counsel to questions asserting the de facto parents’ interest in the custody, companionship, care and management of the minor. Instead, she argues, he was improperly permitted to cross-examine witnesses and lodge objections without restriction.
We need not determine whether the de facto parents’ questioning should have been restricted at the hearing, as mother has failed to establish any recognizable prejudice. The only “prejudice” about which mother complains is the fact that the de facto parents’ counsel lodged the majority of the objections during testimony, performed thorough cross-examinations, and required father’s counsel to utilize proper procedures before admitting letters into evidence. In essence, mother complains that the de facto parents’ counsel was particularly competent and effective and that this added “frustration to the atmosphere.” This is not the type of “prejudice” for which reversal is required.
Mother briefly mentions that her right to privacy and confidentiality was invaded when the de facto parents were permitted a copy of her psychiatric medical evaluation, but she fails to develop this point. (See Stanley, supra, 10 Cal.4th at p. 793.)
VI
Mother was represented in the juvenile court by appointed counsel, Miles Stern. Mother brought Marsden motions on October 29, 30, and 31, 2007, and on August 6, 2008. She contends the juvenile court erred in not granting the Marsden motion she made on October 31, 2007. Although the nature of her argument is not entirely clear, it appears she contends she had established at the Marsden hearing that communication had broken down with her attorney and that the juvenile court’s erroneous failure to grant her new counsel was prejudicial, as demonstrated by alleged instances of ineffective assistance of counsel. We reject mother’s claim of error.
To the extent that mother intended to make a separate argument alleging that reversal is required because of alleged ineffective assistance of counsel, such is not clear and is not developed as a separate assignment of error. (See Stanley, supra, 10 Cal.4th at p. 793.) Separate contentions must be briefed under separate headings. (Cal. Rules of Court, rules 8.204(a)(1)(B), 8.360.) This is not a mere technical requirement, but an important rule of appellate procedure “designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.” (Landa v. Steinberg (1932) 126 Cal.App. 324, 325.) Accordingly, we address the issue as we discern it from the briefs submitted.
Before we begin our analysis, we provide a rather detailed summary of mother’s Marsden hearings.
On three consecutive dates during the section 387 hearing, mother told the court she was unhappy with her attorney and the court responded by holding a Marsden hearing. On October 29, 2007, mother complained that Stern had not secured Tammy Williamson, a social worker in Nevada, to testify at the hearing. She also complained that Stern had not consulted with her when she requested. Stern responded that he had made several attempts to speak with Williamson about her potential testimony, but that Williamson had not returned his calls. Stern was proceeding by admitting Williamson’s written letters into evidence but, without knowing her precise position, had determined it was risky and of little benefit to have her testify at the hearing. With respect to mother’s complaint that he had not met and consulted with her, Stern responded that mother essentially wrote him letters telling him what she wanted him to do. Stern admitted he could do a better job of communicating with mother, but noted that mother screens her calls and then communicates with him “when and in the manner she pleases.” Stern further noted that it is difficult to communicate with mother. Nonetheless, Stern was prepared to proceed in representing mother.
Because of language difficulties, the court had recognizable difficulty in communicating with mother, as she went back and forth constantly on whether she was using the interpreter and her statements were unclear. Additionally, the court was required to repeatedly admonish mother not to interrupt and to let the court or Stern speak. At one point, mother was repeatedly interrupting the court and accused the court of not listening to her, resulting in a stern admonishment from the court.
The juvenile court denied the Marsden motion, noting that the parents had brought numerous Marsden motions and that perhaps mother was “a little bit difficult on her own end.” Based on its observations, the court suspected the communication difficulties were two-sided. The court found Stern was performing his duties appropriately, but requested he explain his tactics to mother so she would be aware of his reasoning.
On October 30, 2007, mother requested another Marsden hearing. Mother complained again that Williamson should be testifying at the hearing. Stern responded that his position regarding calling Williamson without first knowing what her testimony would be had not changed. Stern indicated he would discuss the matter with mother and, if it appeared Williamson had additional information of which he was not previously aware and he determined he wanted her to testify, he would seek a continuance. The juvenile court found no grounds for dismissing Stern and the case was concluded for the day.
Upon commencement of the section 387 hearing the following day, mother requested another Marsden hearing. Mother again complained that Stern did not believe her anymore because he thought she was less than forthright at the beginning of their attorney-client relationship. Mother complained about the lack of communication. Stern responded that he had told mother everything she needed to know to be successful in the case and, although he may not know every detail of mother’s views of the case, he understood her position. Stern informed the court that sitting down with mother and talking to her is difficult because the discussions become confrontational and turn back to the issue of Williamson and whether Stern is going to subpoena her to testify. Stern indicated there were two witnesses mother wanted to have testify that Stern had determined not to call. Stern’s position regarding Williamson not testifying had not changed. Stern indicated that his conversation with mother the day before had deteriorated into a shouting match, but that he would like to continue to work with mother and communicate appropriately.
At this point in the hearing, the juvenile court noted mother’s behavior and the allegations of mental health issues, and asked Stern if he thought there was a need for a guardian ad litem. Stern stated he did not believe a guardian ad litem was necessary.
The juvenile court found no evidence to suggest Stern was not performing his duties effectively or that there was such a breakdown in the attorney-client relationship that Stern could no longer effectively represent mother. The court did find that mother was argumentative and demanding, and noted mother had repeatedly attempted to interrupt the court while it was giving its ruling. Mother, however, continued to argue and debate the matter. The court explained to mother that her complaints about Stern’s performance related to tactics and that the attorney has the right to establish the tactics. The court instructed mother to work with Stern, and directed mother and Stern to communicate politely.
The reporter’s transcript of the October 31, 2007, Marsden hearing is over 20 pages long. During that hearing, mother interrupted no less than seven times and was repeatedly admonished by the court. After mother had interrupted at least four times during the court’s ruling, Stern asked the court to explain the significance of a guardian ad litem to mother because “she’s difficult to communicate with verbally because she doesn’t let me finish talking.” The court responded that it “cannot see how a guardian ad litem is going to change that. She’ll have the same relationship with the guardian ad litem.” The court also noted that, as Stern had concluded earlier, mother was intelligent and lucid. Thus, a guardian ad litem was not necessary.
Mother continued to complain that Stern did not promptly respond to her letters and e-mails. The court asked Stern for a response. Regarding the lapses in communication, Stern stated that mother had sent him a letter making appalling demands and he admittedly did not respond to it. Stern also admitted that he could have told mother earlier that he did not intend to call Williamson as a witness and explained his reasoning to her. Stern also explained, “But on the other hand, she -– generally, her style of communication is simply to promelgate [sic] a list of demands from me, generally accompanied with reminders that it’s essential that I cooperate[;] otherwise our efforts will fail. And I look at the word [‘]cooperation[’] and so forth or the word [‘]team[’] that she uses in her letters. And I don’t feel like I’m part of a team. I –- I feel like I’m being demanded a very slavish level of obedience. She’s very dissatisfied because I expressed –- she wants me to reflexively believe her.” Mother then interrupted, stating she “need[s] an explanation” and the court admonished her to let Stern speak.
Stern continued, stating: “I would really want to discuss the case somewhat so that we can -– you know, because this -– we’re banding about like -– we’re waltzing around. She’s going to continue to waltz and fixate on her unmet demand for Ms. Williamson or defalifications [sic] perceived in my level of communication with her. And basically, we’re not going to get anywhere. I don’t think, until such time as she’s willing to put those behind her or we can resolve those, that we have a prospect of communicating.
“She –- the bottom line is one of the things that I did communicate with her was that it’s –- that she should participate in her service plan.
“The letter I got from her that was -– that listed her various witnesses started out with a demand that I file a motion to vacate the Court’s order that instituted provision of services to parents[] pending post–detention pending the balance of the case.”
The court then asked, “So she wanted me to vacate my order ordering [DHHS] to provide the services?” Stern replied, “She doesn’t want to participate in services. When she wrote to me –- ” The court indicated it did not want to get too detailed regarding privileged communications and explained to mother that whether someone wants to participate in services is up to the individual but that the court ordered DHHS to at least make the referrals.
After devoting 45 minutes to the Marsden motion and hearing nothing to indicate Stern was failing in his duties, the court accepted Stern’s assurance that he was doing what was necessary to protect mother’s rights, that he had been communicating with mother to the extent possible, and that he would continue to do so. The court did find that communication between mother and Stern could be better but did not believe communication would be better if the court appointed a new attorney. The court reiterated that mother’s motion was denied.
A party is entitled to discharge her appointed counsel only if the record clearly shows counsel is not providing adequate representation or that she and counsel have become so embroiled in conflict that ineffective representation will likely result. We review the trial court’s denial of a Marsden motion for abuse of discretion, and will find such an abuse only where the party has shown that the failure to replace appointed counsel would substantially impair her right to assistance of counsel. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) To the extent there was a credibility question between the client and counsel at the hearing, the trial court is entitled to accept counsel’s explanation. (People v. Smith (1993) 6 Cal.4th 684, 696 (Smith).)
Here, the trial court properly gave mother the chance to make a specific showing of inadequate representation or irreconcilable breakdown of relations with counsel. (People v. Hines (1997) 15 Cal.4th 997, 1024.) Mother’s complaints centered primarily on two grievances. First, mother repeatedly insisted that Stern should call Williamson as a witness. Disagreement over tactics, as to which counsel is “‘“captain of the ship,”’” does not demonstrate an irreconcilable conflict. (People v. Welch (1999) 20 Cal.4th 701, 729; see id. at p. 728.) Although there may have been other demands that Stern did not meet, mother failed to show that Stern was not providing adequate representation.
Second, mother complained about Stern’s communication, and perceived lack thereof. While the record shows that communication could have been better, the record also supports the juvenile court’s finding that mother was at least equally, if not primarily, to blame. In addition to the language difficulties that were quite apparent in the record, communication with mother was obviously difficult. Mother repeatedly interrupted, despite numerous admonishments. She fixated on issues that had already been resolved and was argumentative in her approach. According to Stern, she also made numerous unreasonable demands, made herself unavailable by screening her calls, and did not let him finish speaking.
These communication issues did not, however, require the juvenile court to grant mother’s Marsden motion. A party may not force the substitution of counsel by her own conduct. (Smith, supra, 6 Cal.4th at p. 696.) Moreover, the communication issues did not demonstrate that she and counsel had become so embroiled in conflict that ineffective representation was the likely result. Stern had been communicating with mother to the extent possible, and stated that he would continue to do so.
Mother places great emphasis on Stern’s “disclosure” to the court that one of mother’s unmet demands was her request that he file a motion to vacate the order that required DHHS provide services to the parents postdetention and pending the balance of the case. When the court questioned counsel, asking for clarification that mother had wanted the order that she be provided services vacated, counsel confirmed that mother did not want to participate in services. We find nothing about this “disclosure” shocking or demonstrative of an irreconcilable conflict or breakdown in communication. Mother had been making accusations that Stern was not representing her properly and not responding to her (apparently quite demanding) letters. This disclosure to the court of an instance in which Stern did not comply with mother’s demand was not unreasonable. Nor was it a revelation that mother did not want to participate in services. Other than attending 11 counseling sessions and an appointment for psychiatric services in early 2004, mother had not participated in any services to date. The parents’ counselor had long ago reported that the parents did not think they needed counseling. In sum, this “disclosure” did not require the juvenile court to grant mother’s Marsden motion.
Finally, mother points to several incidents and statements that occurred after the October 31, 2007, Marsden hearing, which she claims demonstrate there was an irreconcilable conflict or that Stern was providing ineffective assistance of counsel. Indeed, mother argues at length about these incidents. These alleged incidents are not relevant to our review. An appellate court does not look to subsequent matters when reviewing the denial of a Marsden motion. (People v. Berryman (1993) 6 Cal.4th 1048, 1070-1071 (Berryman), overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
VII
Father cursorily complains that he was unable to subpoena the de facto parents at the section 366.26 hearing and claims this resulted in undesirable posttermination events.
Specifically, father makes the following impertinent argument in his appellate brief: “If these necessary witnesses had been there, then [the minor] would not be a legal orphan as he stands here today cut off from all real family, and court[-]imposed family imposters of various queer sexual orientations. The department just prior to the termination of parental right[s] mentions how committed the DeFactos are and the next day, child is kicked out and sent back to foster care.”
We need not address this cursorily asserted contention. (Stanley, supra, 10 Cal.4th at p. 793.) Moreover, events occurring after the order terminating father’s parental rights are not relevant to our review of the orders from which either appeal has been taken. (Berryman, supra, 6 Cal.4th at pp. 1070-1071.) Finally, we note that father was not unable to subpoena the de facto parents--instead, the record reflects that his counsel expressly chose not to subpoena them because he believed their testimony would be irrelevant and most likely detrimental to father.
VIII
Father contends the juvenile court was biased and that he “cannot get a fair trial in Sacramento County.”
Reminding this court that he has filed a federal civil lawsuit against the juvenile court judge and referee in this case, defendant makes broad accusations that the judge “molest[ed]” the file and directed the referee to make malicious and inappropriate rulings. He claims that “[a]s soon as the remittitur [issued by this court after his previous appeals] was released this child and this family was [sic] doomed to suffer at the hands of a sadistic evil judge and referee who can only pass the buck rather than stand firm and do what is right.” Father complains about the subpoena process and the rules of evidence, and makes sweeping allegations that the social workers have lied.
Other than these general allegations, father has provided no facts or legal argument regarding judicial bias. An appellant must present an analysis of the facts and legal authority on each point made, and also must support the arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) This court is not obligated to peruse the record looking for facts to support father’s allegation of judicial bias on appeal. (Cal. Rules of Court, rule 8.204; Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.)
And, in any event, our review of the record reveals the opposite. Father’s behavior in the juvenile court was often deplorable. Father not only refused to cooperate with DHHS throughout these proceedings, but he was repeatedly and demonstratively insolent toward the court. At one point, father was not only arguing with the court, but yelling and actually pointing his finger at the court. He was verbally challenging and defied court orders, including walking out of the courtroom when expressly ordered to remain seated. Yet, despite father’s ongoing impudent behavior, the juvenile court remained calm and judicious. Father has failed to demonstrate judicial bias.
Father’s poor judgment extends to this case as well. In his appellate brief, he imprudently writes: “[T]he department is endorsing [the minor’s] lesbian (father) Anders Tsylan to assume a real father position. Furthermore this child now calls himself Jesse which is well known to be one of those Homo names because it works as both a male and female name. Obviously any male child needs a father, not a HOMO as a parent.”
IX
Mother contends the juvenile court abused its discretion in terminating reunification services after only six months, on the ground that the minor was over the age of three at the time of his initial removal--an issue that we note was raised by father in his writ petition and rejected by this court.
This contention was required to have been raised in a petition for writ of review after the section 366.21, subdivision (e) hearing. Nonetheless, mother seeks review on appeal, claiming her counsel was ineffective for failing to file a notice of intent to file a writ petition because he incorrectly believed the time within which to file it had expired.
A parent claiming ineffective assistance of counsel has the burden of showing that counsel failed to act in a manner to be expected of reasonably competent counsel, that “counsel’s representation fell below an objective standard of reasonableness....” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 693-694]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) The parent must also show prejudice from any violation of the statutory right to competent counsel, that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694; accord, People v. Ledesma (1987) 43 Cal.3d 171, 217-218; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153.)
We need not determine whether mother’s counsel failed to act reasonably. Mother cannot show prejudice because her claim of juvenile court error lacks merit.
At the time of the hearing, section 361.5, subdivision (a), stated in pertinent part: “[W]henever a child is removed from a parent’s... custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father.... Child welfare services, when provided, shall be provided as follows: [¶] (1) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was three years of age or older, court-ordered services shall not exceed a period of 12 months from the date the child entered foster care, except as otherwise provided in paragraph (3). [¶] (2) For a child who, on the date of initial removal from the physical custody of his or her parent or guardian, was under the age of three years, court-ordered services shall not exceed a period of six months from the date the child entered foster care. [¶]... [¶] Regardless of the age of the child, a child shall be deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian.” (Italics added.)
These restrictions are consistent with the overall objective of the statutory scheme--that is, the protection of abused or neglected children and the provision of permanent, stable homes if they cannot be returned to parental custody within a reasonable time. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) The general purpose of dependency law is to safeguard the welfare and best interests of children. (In re Aryanna G. (2005) 132 Cal.App.4th 1234, 1241.)
As applied here, for purposes of determining the length of time reunification services were to be provided to the parents, we determine the minor’s age as of 60 days from when he was removed from father’s physical custody on April 26, 2005. (See In re Christina A. (2001) 91 Cal.App.4th 1153, 1159-1165.) The minor was less than two years old on June 25, 2005. The parents were, therefore, entitled to six months, not 12 months, of reunification services.
We need not determine whether the minor was initially removed, for purposes of section 361.5, on the earlier date of January 2004 (when Alameda County initially detained the minor) or December 2004 (when Sacramento County initially detained the minor). The minor was indisputably removed from father’s physical custody and placed in foster care on April 26, 2005, and was never returned to the parents’ physical custody thereafter.
The parents received far more than six months of reunification services. Reunification services were available (although not utilized by the parents) from at least April 26, 2005, to August 29, 2005, and again from August 15, 2007, to March 18, 2008. Thus, the juvenile court did not terminate reunification services prematurely and, accordingly, the failure to raise this issue by writ petition did not result in ineffective assistance of counsel.
It is of no consequence that the juvenile court proceeded cautiously and found facts necessary to exercise its discretion to terminate reunification services “early” as if the 12-month provision of section 361.5, subdivision (a)(1) applied. (See In re Aryanna C., supra, 132 Cal.App.4th at p. 1242 [court has discretion to terminate reunification services of a parent at any time after it has ordered them, depending on the circumstances presented].)
X
The juvenile court’s visitation order entered at the section 387 detention hearing on June 26, 2007, specifically prohibited the parents from informing the minor that they were his biological parents. The subsequent visitation order entered at the January 11, 2008, section 387 hearing did not lift this restriction. Mother argues that the restriction was an abuse of discretion and violated her due process rights because it prevented her from being able to establish the beneficial relationship exception to adoption at the section 366.26 hearing. (§ 366.26, subd. (c)(1)(B)(i).)
DHHS points out that the appeal in which mother raises this argument is from the August 7, 2008, section 366.26 hearing and the contention of error is, therefore, untimely. We dispose of mother’s contention, however, on the alternative ground asserted by DHHS--mother did not suffer the prejudice she asserts.
Simply put, the restriction contained in the visitation order was not the reason mother could not establish an exception to adoption. Mother’s own conduct prevented her from establishing the beneficial relationship exception to adoption.
At a hearing under section 366.26, if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless “[t]he court finds a compelling reason for determining that termination would be detrimental” because of one of the statutorily enumerated exceptions. (§ 366.26, subd. (c)(1)(B).) The parent has the burden of establishing an exception to termination of parental rights. (Cal. Rules of Court, rule 5.725(e)(3); In re Zachary G. (1999) 77 Cal.App.4th 799, 809; see In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
There are only limited circumstances that permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child....” (§ 366.26, subd. (c)(1)(B).) One of the exceptions to termination of parental rights is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) The juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G., supra, 77 Cal.App.4th at p. 809.)
By no stretch of the evidence can it be said that mother maintained regular visitation. Mother did not visit or inquire about the minor’s well-being from March 2005 to December 12, 2005, when visits were otherwise available to her. Mother was in Japan for most of the time the minor was removed from parental custody. She had, however, returned by the time visitation authorization resumed in June 2007. Mother was authorized to visit twice monthly. She attended visitation on July 25, 2007, but was late for both August visits. She did not visit in September, as she and father were busy “preparing for the trial.” Mother was late for the one visit she attended in October and, although she visited in November, she did not visit in December or acknowledge the minor’s December birthday.
Mother visited twice in January 2008. She did not visit again until a short visit in May for which she was 35 minutes late. Mother’s next and final visit prior to the section 366.26 hearing was on July 14, 2008.
Section 366.26 requires both a showing of regular contact and a showing that the child actually would benefit from continuing the relationship. Had mother maintained consistent and regular visitation with the minor, her argument that the restriction in the visitation order affected her ability to establish the exception by hindering her from developing a bond with the minor might be more compelling. The beneficial relationship exception, however, was unavailable to mother, regardless of any restrictions contained in the visitation orders, because of her own failure to regularly visit the minor.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND , P. J., ROBIE , J.
“s-1. The child was placed by the Alameda Juvenile Court with the mother and father on or about January 29, 2004, after declaring the child a dependent, due to paternal violence in the home and maternal mental instability. On December 21, 2004, the child was removed from the care and custody of the mother and father, due to the parents’ failure and/or refusal to comply with court orders; in that, they failed to make themselves or the child available for participation in court-ordered services to minimize the risk of abuse or neglect to the child.
“s-2. The father... exhibits mental health and anger-control issues that have not been addressed in therapy, which place the child at continued risk of abuse or neglect in the home; in that, the father presents as controlling and hostile with anger control issues. On May 22, 2007, during contact with Social Worker Karadsheh, the father was irate and loud with the social worker requiring law enforcement officers to remove the father from the facility. Further, the father has exhibited evasive and paranoid behaviors, which affect his ability to participate in court-ordered services and which places the child at risk of being abused and neglected. The father has failed and/or refused to participate in a court-ordered psychological evaluation, anger management services, and meaningful couples[’] therapy.
“s-3. The mother... has unresolved mental health issues, which have not been addressed through therapy which place the child at continued risk of abuse or neglect in the home of the parents. Further, the mother has failed and/or refused to participate in a court-ordered psychological evaluation, individual therapy and meaningful couples[’] therapy.
“s-4. The father... failed family reunification services in that on or about March 14, 2005, the child,... date of birth December 29, 2003, was returned home to the father... under the supervision of the Department of Health and Human Services and the father was directed to make himself and the child available to the family reunification social worker. After the child was returned, the father failed and/or refused to return any calls or respond to written correspondence to the Department. Additionally, the father took the child back to Oakland, California[,] and falsified residency verification in Sacramento.
“s-5. The home in which the child,... date of birth December 29, 2003, was residing posed a risk to the child’s safety and well-being, in that the home contained excessive debris and health and safety hazards. The entryway was cluttered with boxes, tools, chairs and other debris. The child was on the living room floor, which was filthy. The bathroom contained a litter box that was overflowing with animal feces and there [were] feces all over the bathroom floor. In the master bedroom, there was a large pile of what appeared to be animal diarrhea on the floor. The smell of feces in the house was overwhelming. There appeared to be smears of feces on the floor in the child’s room. There were piles of clothing, boxes, and toys in disarray around the child’s room. The child’s bedding was dirty. The rooms downstairs were unfurnished and outlets were not secured.
“s-6. The father... has failed to visit and/or inquire as to the child’s well-being, since approximately April 15, 2005, through 12/12/05, when visits were otherwise available to him.
“s-7. The mother... has failed to visit and/or inquire as to the child’s well-being, since approximately March 2005, through 12/12/05, when visits were otherwise available to her.”
“(1) The procedures relating to jurisdiction hearings prescribed in chapter 13, article 2 apply to the determination of the allegations of a subsequent or supplemental petition. At the conclusion of the hearing on a subsequent petition the court must make a finding that the allegations of the petition are or are not true. At the conclusion of the hearing on a supplemental petition the court must make findings that: “(A) The factual allegations are or are not true; and “(B) The allegation that the previous disposition has not been effective is or is not true.
“(2) The procedures relating to disposition hearings prescribed in chapter 13, article 3 apply to the determination of disposition on a subsequent or supplemental petition. If the court finds under a subsequent petition that the child is described by section 300(a), (d), or (e), the court must remove the child from the physical custody of the parent or guardian, if removal was not ordered under the previous disposition.”