Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. J0501020
SIMONS, J.
R. R. (Mother) appeals the termination of her parental rights over her daughter J. R., born in February 2004. She contends the parental termination order is not supported by substantial evidence given her continuous parental relationship with J. R. In addition, she argues the court erroneously denied her request for a bonding study and failed to grant a hearing on her petition to modify (Welf. & Inst. Code, § 388). Finally, she contends the Contra Costa County Bureau of Children and Family Services Bureau (Bureau) failed to elicit the opinions and preferences of J. R., and violated the due process rights of Mother and J. R.’s siblings by depriving the siblings of notice and precluding the sibling relationship. We reject her contentions and affirm.
Father’s parental rights were also terminated, but he is not a party to this appeal.
All undesignated section references are to the Welfare and Institutions Code.
In her reply brief, Mother withdrew her claim that the court erroneously denied her section 388 petition without a hearing.
Background
In June 2005, the Bureau filed a juvenile dependency petition alleging under section 300, subdivision (b) (failure to protect), inter alia, that on June 6, Mother was placed on an involuntary hold and hospitalized at a psychiatric unit after threatening to kill herself and J. R., and threatening to kill Bureau staff and Mother’s therapist if J. R. was not returned to her. It also alleged Mother has a history of attempting suicide. At the July 8 jurisdictional hearing Mother was present and represented by counsel. The court sustained these allegations and set the disposition hearing.
The Bureau’s disposition report noted three prior referrals in 1992 and 1993 regarding Mother’s son, her prior conviction for willful cruelty to a child, and her significant history of substance abuse. Prior to the June 2005 incident, Mother was diagnosed with post traumatic stress disorder (PTSD) and depression and had stopped taking her medication. J. R.’s half-siblings resided with their father and paternal grandmother. The report stated Mother’s visitation with J. R. was going “fairly well.” Reunification services for Mother were recommended.
At the August 30, 2005 disposition hearing, Mother was not present but was represented by counsel. The court adopted the Bureau’s recommendations, declared J. R. a dependent child of the court, and ordered reunification services, visitation and a psychological assessment for Mother. Following the January 2006 six-month review hearing the court adopted the Bureau’s recommendation to continue reunification services to Mother for another six months.
A January 2006 psychological evaluation of Mother concluded that she was under a significant amount of personal stress, but had “built a fairly stable personality structure out of defenses that she uses to avoid this distress.” Her emotional stability was likely to be erratic due to the periodic breaking down of her defenses and her misperceptions of reality. Under severe stress she might not be able to apply the anger management techniques learned, and her past history regarding suicide made future suicidal behavior a concern. The report recommended an observational assessment of Mother’s interactions with J. R. to assess her ability to respond to J. R.’s needs, and continued individual psychotherapy.
The Bureau’s June 2006 12-month status review report recommended terminating reunification services for Mother and setting a section 366.26 hearing (.26 hearing). J. R. had resided in the same foster placement since September 30, 2005. She called the foster parents “mommy” and “daddy” and also called Mother “mommy.” J. R. was very attached to the foster mother and after visits with Mother, ran to the foster mother “with open arms.” The report noted that although Mother told the Bureau social worker that she was renting a room from Glen T. and had a separate bedroom, Glen said they were living as a couple and sharing a bed, and Mother had brought J. R. to Glen’s house without prior Bureau approval. The report stated that Mother did “not seem to understand how her pattern of continuing issues could put [J. R.] at risk.” It also stated that when overwhelmed, Mother still struggled with explosive anger, which the social worker continued to observe. Mother had lost custody of her three older children, and her mother was fearful of her due to her previous threats. The report also stated that Mother’s credibility was questionable due to her paranoid ideation. The report noted that Mother was receiving help for her serious mental health issues, but given the history of her “tumultuous abuse,” the outcome was uncertain.
An August 2006 Bureau update memo stated that Mother continued to express herself inappropriately to J. R., J. R.’s foster mother and the Bureau. The Bureau concluded that Mother’s history and patterns of instability were detrimental to J. R.’s safety and well-being. At the October 2006 12-month hearing, reunification to Mother was terminated and a .26 hearing was set for January 24, 2007. On January 23, 2007, this court denied Mother’s petition for extraordinary writ (Cal. Rules of Court, rule 8.452), seeking to vacate the juvenile court’s order terminating reunification services and setting a .26 hearing. (R. R. v. Superior Court (Jan. 23, 2007, No. A115969) [nonpub. opn.].)
Bureau’s .26 Report
The report for the January 27, 2007 .26 hearing recommended termination of Mother’s parental rights and adoption as the permanent plan for J. R. J. R. was reported to be on target developmentally, with no emotional or behavioral problems. Mother was sometimes employed during the dependency, and was currently unemployed. She had been diagnosed in the past with major depressive disorder, delusional disorder and borderline personality disorder, and received Supplemental Security Income due to her history of suicide attempts, depression and PTSD. In February 2006, she lost her housing and since then was living with Glen, who had been incarcerated and had a drug-related criminal record.
Mother had visited J. R. regularly, and overall visits had gone well. At first, Mother made comments during the visits that the Bureau had “kidnapped” J. R., and brought food for J. R. that she could not chew. Thereafter, the quality of their visits improved. The report stated that J. R. enjoyed the visits “as playtime.” However, weekly phone calls between Mother and J. R. were more problematic. Mother upset J. R. by crying frequently on the phone. After one occasion in August 2006, when Mother shouted to J. R. that she was J. R.’s real mother, telephone calls were discontinued.
J. R. was found to be adoptable, was thriving in the care of her prospective adoptive parents and referred to them as “mommy and daddy.” The Bureau concluded that Mother’s lack of emotional stability put J. R. at risk. Mother’s threats to people and herself as well as J. R. are part of Mother’s ongoing, lifelong pattern.
.26 Hearing
Mother was present and represented by counsel at the January 31, 2007 .26 hearing. Mother’s counsel requested a continuance on the grounds that her witness to establish the sibling benefit exception (§ 366.26, subd. (c)(1)(E)) was having car trouble and that a bonding study should be performed pursuant to the continuing beneficial relationship exception (§ 366.26, subd. (c)(1)(A)) (hereafter, (c)(1)(A) exception). The court denied the motion to continue for lack of good cause to delay consideration of J. R.’s permanent plan.
J. R.’s counsel reported that as of January 18, 2007, J. R. continued to do extremely well in her prospective adoptive home, saw no impediment to an adoption and agreed with the Bureau’s recommendation.
Mother testified that before the last court hearing she was visiting J. R. weekly and, after the last hearing, visitation was monthly. She admitted missing one visit after the last court hearing. She said since the visits had become monthly, J. R. referred to her as “Momma [R.],” but before that referred to her as “Momma.” Mother said that when visits were weekly, J. R. did not want the visits to end, but since the visitations were monthly “it’s like no big thing.” Mother said after J. R. was first removed to foster care, Mother visited her with Mother’s two other daughters and a son. However, once school started, the other children were unable to attend the visits. Mother said she was told by a Bureau social worker she could not have Saturday visits with J. R. because the foster family had regular activities on the weekends. Her son saw J. R. about once or twice a month before J. R. was placed in foster care. Mother said the social worker denied phone calls between J. R. and Mother’s other children because there was no bond between J. R. and the other children. Mother said it was in J. R.’s interest to maintain a relationship with her because they had a unique bond, and Mother knew how to love, teach and raise her. On cross-examination, Mother said that J. R. never lived full time with her other children.
Mother argued that the (c)(1)(A) exception applied because even though the visitation schedule had changed, Mother maintained regular visitation, had done everything she could that was required in her case plan, and J. R. would benefit from contact with Mother. She also argued that the section 366.26, subdivision (c)(1)(E) sibling relationship exception (hereafter, (c)(1)(E) exception) applied.
The court terminated Mother’s parental rights after finding there was no significant parental attachment between her, and J. R. and parental termination would not be detrimental to J. R. The court found that neither the (c)(1)(A) exception nor the (c)(1)(E) exception applied and found J. R. adoptable.
Discussion
I. The Continuing Beneficial Relationship Exception
Mother contends she met her burden of establishing that termination of her parental rights would be detrimental to J. R. under the (c)(1)(A) exception.
At the .26 hearing, where possible, adoption “ ‘is the permanent plan preferred by the Legislature.’ ” (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.) “Only if adoption is not possible, or there are countervailing circumstances, or if it is not in the child’s best interests are other, less permanent plans, such as guardianship or long-term foster care considered.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.) Where, as here, the court has terminated reunification services and finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the minor under one of five enumerated exceptions. (§ 366.26, subd. (c)(1); In re L. Y. L., supra, 101 Cal.App.4th at p. 947.)
Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, “the court shall terminate parental rights and order the child placed for adoption” “unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances; [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
In In re Autumn H. (1994) 27 Cal.App.4th 567, the court interpreted the continuing beneficial relationship exception to mean “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (Id. at p. 575.) The determination is made on a “case-by-case basis,” after considering the many variables that affect a parent/child relationship, such as the child’s age, the portion of the child’s life spent in the parent’s custody, the effect of interaction between the parent and the child, and the child’s emotional needs. (Id. at pp. 575-576; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) “While the exact nature of the kind of parent/child relationship which must exist to trigger the application of the statutory exception to terminating parental rights is not defined in the statute, the relationship must be such that the child would suffer detriment from its termination. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 467.)
In re Autumn H. and its progeny have applied the substantial evidence test in reviewing the court’s findings under the continuing beneficial relationship exception. (In re Autumn H., supra, 27 Cal.App.4th at pp. 576-577; accord In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1534, 1538.) In re Jasmine D. (2000)78 Cal.App.4th 1339, 1351, applied the abuse of discretion standard as did In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449. In any case, as noted in In re Jasmine D., both standards of review give broad deference to the trial court’s judgment. (In re Jasmine D., supra, 78 Cal.App.4that p. 1351.)
In this case the record establishes that Mother maintained regular visitation with J. R. Thus, the issue here is the second prong of the (c)(1)(A) exception-whether J. R. would benefit from continuing the parental relationship with Mother. We conclude that substantial evidence supports the court’s finding that Mother failed to establish a parent-child relationship sufficient to qualify for the section (c)(1)(A) exception as interpreted by In re Autumn H. and its progeny. The evidence establishes that Mother enjoyed a loving relationship with J. R. and J. R. enjoyed the limited, supervised “playtime” visits with her. However, Mother continued to make poor choices that affected her ability to provide a stable and nurturing environment for J. R. Her inappropriate comments to J. R. during a phone call resulted in the discontinuance of telephone contact. Her decisions to move in with Glen, a person with a serious criminal history, and to bring J. R. to visit Glen without prior authorization suggest a flawed decision-making process. Moreover, her lifelong issues with explosive anger, paranoid ideation and suicide attempts make it uncertain that Mother could be an effective parent for J. R. “A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child’s need for a parent. [Citation.]” (In re Angel B., supra, 97 Cal.App.4th at p. 466.) Based on the record before us, we conclude substantial evidence supports the court’s determination that Mother failed to establish that J. R. would benefit to such a degree from continuing her relationship with Mother that she would be harmed if Mother’s parental rights were terminated.
II. Request for Bonding Study and Continuance
Mother contends the court erred in denying her request at the .26 hearing for a continuance so that a bonding study could be prepared. She argues a bonding study would have shown that a substantial bond was established between her and J. R., J. R. derived substantial benefit from continuation of their relationship, and J. R. would suffer detriment from deprivation of the relationship.
A juvenile court’s denial of a request for appointment of an expert under Evidence Code section 730 to prepare a bonding study is reviewed for abuse of discretion. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341.) Pursuant to that standard, we determine “whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering a bonding study.” (Ibid.) In addition, the decision to appoint an expert is also a matter within the court’s discretion. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.)
Mother’s request for a continuance for preparation of a bonding study was made at the .26 hearing. In denying the request, the court focused on the timing of the request and found that there was no good cause for delaying consideration of a permanent plan for J. R. The court was familiar with the facts of the case, and could properly and reasonably conclude that given J. R.’s need for permanence, and the uncertainties regarding Mother’s ability to overcome her lifelong mental health issues in order to successfully parent J. R., denial of the request for continuance for preparation of a bonding study was in J. R.’s best interest. No abuse of discretion is shown.
III. Elicitation of J. R.’s Opinions and Preferences
Next, Mother argues the Bureau failed to present the court with evidence of three-year-old J. R.’s preferences on guardianship versus adoption. Section 366.26, subdivision (h) requires the court at the .26 hearing to “consider the wishes of the child.” Evidence of the child’s wishes may be presented by direct formal in-court testimony, “informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court, or electronic recordings.” (In re Joshua G. (2005) 129 Cal.App.4th 189, 201; In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) The court must only consider the child’s wishes to the extent those wishes are ascertainable. (Joshua G., supra, 129 Cal.App.4th at p. 201; In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) A child may not be able to understand the concept of adoption. (Joshua G., supra, 129 Cal.App.4th at p. 201; In re Juan H. (1992) 11 Cal.App.4th 169, 173.) In any case, the court must consider a child’s best interests at a .26 hearing, but if the child is under the age of 12, the court need not follow the child’s wishes. (Joshua G., supra, 129 Cal.App.4th at p. 201.)
Here, the Bureau’s .26 report stated that J. R. was “too young to verbalize her wishes regarding adoption,” but “it is clear that [J. R.] is thriving in the care of her prospective adoptive parents.” We are entitled to infer from the report that the Bureau social worker attempted to discuss the concept of adoption with J. R. and that she was too young to understand the concept. In addition, the court had ample evidence from which to determine J. R.’s best interests. No error is demonstrated.
IV. Notice to Siblings
Mother appears to argue that the Bureau erred in failing to provide J. R.’s half-siblings with notice. In a related contention, she argues that her due process rights were violated by the lack of proper notice.
To the extent that Mother is claiming the Bureau failed to provide the half-siblings notice at any time prior to the October 10, 2006 hearing at which the .26 hearing was set, the claim is waived due to Mother’s failure to raise it in her petition for extraordinary relief. (§ 366.26, subd. (l).)
The Bureau’s .26 report listed J. R.’s half-siblings as: (1) Gilbert S., an adult maternal half-brother; (2) Amber O., a maternal half-sister, residing with her father; (3) David F., a paternal half-brother, residing with his mother; (4) Carlee F., a paternal half-sister, residing with her mother; and (5) Danielle O., a maternal half-sister, residing with her father. At the .26 hearing, Mother testified that prior to J. R.’s removal from her home, Amber and Danielle were residing with Mother part-time and Gilbert visited one or twice a month for 16 months.
Section 294 provides: “The social worker or probation officer shall give notice of a selection and implementation hearing held pursuant to Section 366.26 in the following manner: [¶] (a) Notice of the hearing shall be given to the following persons: [¶] . . . [¶] (4) Any known sibling of the child who is the subject of the hearing if that sibling either is the subject of a dependency proceeding or has been adjudged to be a dependent child of the juvenile court. If the sibling is 10 years of age or older, the sibling, the sibling’s caregiver, and the sibling’s attorney. If the sibling is under 10 years of age, the sibling’s caregiver and the sibling’s attorney. However, notice is not required to be given to any sibling whose matter is calendared in the same court on the same day.”
Here, Mother points to no evidence establishing that any of J. R.’s five half-siblings were either subjects of a dependency proceeding or a dependent child of the juvenile court at any time between the October 10, 2006 scheduling of the .26 hearing and the January 31, 2007 .26 hearing. Consequently, Mother fails to establish an error in notice or a due process violation.
V. Sibling Visitation
Next, Mother contends the Bureau failed to facilitate visitation between J. R. and her half-siblings, depriving Mother of the opportunity to establish the section (c)(1)(E) sibling exception to adoption and violating her rights to due process.
Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, “the court shall terminate parental rights and order the child placed for adoption” “unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] . . . [¶] (E) There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”
As we discussed, ante, with regard to notice, to the extent that Mother is claiming the Bureau failed to facilitate sibling visitation at any time prior to the October 10, 2006 hearing at which the .26 hearing was set, such claim is waived due to Mother’s failure to raise such claim in her petition for extraordinary relief. (§ 366.26, subd. (l).)
The record before us contains very little evidence regarding J. R.’s visitation with her half-siblings. The Bureau’s .26 report says nothing about such sibling visitation. The record contains no evidence that Mother ever requested the court to order sibling visitation or that the Bureau violated any order to do so. Mother’s written rebuttal to the .26 report states that half-siblings Amber and Danielle attended some of Mother’s visits with J. R. “when they were able to and school didn’t interfere.” At the .26 hearing, Mother testified that in the summer, when she visited J. R. weekly, Amber and Danielle attended the visits. However, when school started, Amber and Danielle could not take time out of school to attend the visits. Mother said when she requested that sibling visits continue during weekday evenings, she was informed that “due to dinner time and the routine that [J. R.’s] in with the foster family that there was no way they would allow” weekday evening visitation. Mother also said she was told by Bureau social worker Linda Mills that she could not have weekend visitation with J. R. because the foster family had activities they always did on the weekends. Mother said that prior to J. R.’s removal, her son Gilbert occasionally talked with J. R. on the telephone, and he saw J. R. about once or twice a month. Mother said that after J. R. was placed in foster care, Mills told her there was no need to continue the phone calls between Gilbert and J. R. because there was no sibling bond between them. Mother also said that for the same reason, Mills said there was no need for sibling communication between J. R. and Amber and Danielle. Mother said Amber and Danielle ask about J. R. on a daily basis, and the half-siblings miss J. R. On cross-examination by J. R.’s counsel, Mother said that at the time J. R. was removed from Mother’s care, Amber and Danielle were residing with Mother every other weekend and two days during the week. Mother also said that since J. R.’s removal, Gilbert had not seen J. R., and Amber and Danielle had not seen J. R. for about a year.
No witness testified for the Bureau at the .26 hearing. Mother argued that because the Bureau had not facilitated sibling visits, it would be improper to conclude that she had failed to establish the applicability of the (c)(1)(E) sibling exception.
Mother’s argument that the erroneous deprivation of sibling visitation impeded the parent’s ability to litigate the (c)(1)(E) sibling exception was recently considered and rejected in In re Valerie A. (2007) 152 Cal.App.4th 987, 1006-1010. We lay out the thoughtful and well-reasoned analysis in Valerie A. in some detail. Valerie A. explained:
“Unlike the [(c)(1)(A) ] exception to termination of parental rights, under [the (c)(1)(E) exception], a parent is not required to show as an element of proof that the siblings have maintained regular contact and visitation. Instead, the parent must prove, by a preponderance of the evidence, that termination of parental rights would cause ‘substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship.’ [Citation.]
“To determine the nature and extent of the sibling relationship, the Legislature directs the juvenile court to consider the factors set forth in section 366.26, subdivision (c)(1)(E). [Citations.] These factors include, but are not limited to, the following: ‘[W]hether the child was raised with a sibling in the same home [and] whether the childshared significant common experiences or has existing close and strong bonds with a sibling [and] whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.’ [Citation.]” (In re Valerie A., supra, 152 Cal.App.4th at pp. 1007-1008.)
Valerie A. noted that the second factor set forth in the (c)(1)(E) exception is stated in the disjunctive, and therefore permits the juvenile court to consider whether the child shared significant common experiences with a sibling or whether the child has existing bonds with a sibling. (In re Valerie A., supra, 152 Cal.App.4th at p. 1008.) The appellate court also noted that the Legislature’s use of the past tense in the first prong of the second factor “indicates that the [juvenile] court looks back in time when it considers whether the dependent child ‘shared significant common experiences [with a sibling].’ [Citation.] In comparison, when the [juvenile] court evaluates whether the dependent child ‘has existing close and strong bonds with a sibling’ [citation], it looks to the present.” (Valerie A., supra, at p. 1008.) Valerie A. stated that the alternative prongs of the second factor in the (c)(1)(E) exception reflect the Legislature’s understanding that often children involved in dependency proceedings have little or no control in maintaining their sibling relationships, and that the goal of keeping siblings together in placement is not always attained. (Valeria A., supra, at pp. 1008-1009.)
The Valerie A. court reasoned:
“We believe the alternative prongs of the second factor in [the (c)(1)(E) exception] reflect the Legislature’s intent that, when circumstances prevent a child from living with siblings or having regular sibling contact and visitation, the juvenile court may look to the past to determine the nature and extent of the sibling relationship, and is not required to assess the closeness and strength of the existing sibling bonds. [Citation.]
“We acknowledge that when the sibling relationship has been developed and maintained through sibling visitation [citation], the child’s existing bonds with a sibling are likely to be stronger than when sibling visitation was impacted or did not occur. However, depending on the child, a lack of sibling visitation does not necessarily erode the sibling bond. When it has, the legislative language does not require that the court consider the closeness and strength of the existing sibling bonds. Instead, the court may consider whether the dependent child shared significant common experiences with a sibling, and evaluate the strength of the sibling relationship as it existed before the siblings were separated, or before regular visitation became impractical. [Citation.] Thus, a parent may avoid termination of parental rights by showing that, under alternative factors, a significant sibling relationship existed or exists, and that continued sibling contact may be of greater long-term emotional interest to the child than adoption. [Citation.]
“Further, we note that, unlike section 366.26, subdivision (c)(1)(A), the Legislature does not require the juvenile court to consider as an element of proof whether a dependent child has maintained regular visitation and contact with a sibling when it determined the applicability of subdivision (c)(1)(E). [Citation.] Thus, an erroneous denial of sibling visitation does not compromise the procedural due process rights of a parent seeking to prove the [(c)(1)(E) exception] by foreclosing a parent’s ability to meet the elements of proof required by statute.” (In re Valerie A., supra, 152 Cal.App.4th at pp. 1009-1010, fns. omitted.)
Valerie A. concluded that because the parent in that case presented evidence relevant to all factors of the (c)(1)(E) exception, she was not deprived of the ability to litigate the (c)(1)(E) exception, and therefore no due process violation was established. (In re Valerie A., supra, 152 Cal.App.4th at p. 1010.) The court went on to conclude that substantial evidence supported the juvenile court’s determination that the (c)(1)(E) exception did not apply. (Valerie A., supra, at pp. 1013-1014.)
We find the reasoned analysis in Valerie A. persuasive and apply it here. Mother had the opportunity to present evidence (in her rebuttal to the .26 report and her testimony at the .26 hearing) relevant to the factors of the (c)(1)(E) exception. According to Mother, in the summer, prior to the start of school, Amber and Danielle had visited J. R. weekly, and prior to J. R.’s removal, Gilbert saw J. R. once or twice a month and occasionally talked with her on the telephone. Mother also testified that at the time of J. R.’s removal, Amber and Danielle were residing with Mother every other weekend and two days during the week. She also stated that since J. R.’s removal Gilbert had not seen J. R. and Amber and Danielle had not seen J. R. for about a year. Mother testified that J. R.’s half-siblings missed J. R. Based on Mother’s opportunity to present evidence relevant to the (c)(1)(E) exception, we conclude there was no due process violation.
Mother does not raise a substantial evidence challenge to the court’s finding that the (c)(1)(E) exception was inapplicable, and we conclude the finding is amply supported by the record.
VI. Bureau’s Statutory Duties
Mother next contends the Bureau violated her rights to due process by failing to fulfill its statutory duties. In particular, Mother argues the Bureau precluded J. R.’s relatives from participating in the proceedings; failed to notify J. R.’s alleged father, Christopher T., of the proceedings; and failed to adequately fulfill its investigative and reporting duties under section 361.5, subdivision (g).
First, Mother’s claim regarding preclusion of relatives relates to conduct by the Bureau prior to the October 10, 2006 scheduling of the .26 hearing. Mother’s failure to raise this issue in her petition for extraordinary relief bars us from considering it on appeal.
Second, Mother’s claim of lack of notice to J. R.’s alleged father, Christopher T., borders on frivolous. An alleged father is a man who may be the father of a child, but whose biological paternity has not yet been established or who has not achieved presumed father status. (In re Zacharia D. (1993) 6 Cal.4th 435, 449.) An alleged father is to be given notice of most hearings throughout the dependency process proceedings (§§ 290.1, subd. (a)(2), 290.2, subd. (a)(2), 291, subd. (a)(2), 294, subd. (a)(2), 316.2, subd. (b)), but has no rights in a dependency case other than to seek to establish paternity of the dependent child (In re Lisa R. (1975) 13 Cal.3d 636, 644).
Here, the Bureau’s .26 report states: Mother has named David F. as J. R.’s father, a January 2005 Contra Costa County judgment ordered David F. to pay child support, genetic testing indicated that David F. could not be excluded as J. R.’s biological father, David F. has held J. R. out to the community as his child and in July 2005, the court raised David F.’s status to that of J. R.’s presumed father. The record before us establishes that at no time did Mother assert that Christopher T. was J. R.’s alleged father. In support of her claim, she cites only to the following statement in the February 2006 psychological assessment report: “[Mother] claimed that she began dating a man named Christopher [T.] in approximately 2002, although she was not sure exactly when their relationship began. . . . She eventually went to the Concord Adult Shelter in early 2003 where she soon met David [F.], the father of [J. R.].” Based on this evidence, this claim of error is meritless.
Finally, with one exception, Mother’s claim that the Bureau failed to adequately fulfill its investigative and reporting duties under section 361.5 is unsupported by any citation to the record. Citing to the .26 report, Mother asserts that the Bureau failed to detail the amount and nature of contact between her and J. R. The .26 report does adequately discuss the quantity and quality of telephone contacts between Mother and J. R. and the quality of their visits. However, aside from reporting that Mother visited with J. R. “regularly,” the .26 report does not state the frequency of those visits. The error is harmless because at the .26 hearing Mother testified in detail as to the frequency of her visits with J. R. following J. R.’s removal from Mother’s care.
VII. Ineffective Assistance of Counsel
Finally, Mother conclusorily asserts that “[i]f any of the above presented issues were not adequately raised below and a more favorable result would have been probable if it had, the attorney has not provided effective assistance. Accordingly, [Mother] will have demonstrated ineffective assistance of counsel requiring reversal of the lower court’s ruling.”
“Where an ineffective assistance of counsel claim is applied in dependency proceedings, an appellant must . . . show that ‘counsel’s representation fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.’ [Citations.] Second, he or she must show prejudice, ‘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.’ [Citations.]” (In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1100-1101.)
Mother’s conclusory claim of error fails to demonstrate either prong of her ineffective assistance of counsel claim.
Disposition
The order is affirmed.
We concur:
JONES, P. J.
GEMELLO, J.