Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J03941, J04512
SIMS, J.
Appellant, father of Ka. V. and T.S. (collectively, the minors), and their sibling, A.S., appeals following a hearing at which the juvenile court ordered the termination of parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Representing himself, appellant claims: (1) he received ineffective assistance of counsel; (2) he was entitled to be present at hearings; and (3) the juvenile court erred in finding the minors adoptable. Finding no merit to these claims, we shall affirm.
For unknown reasons, A.S. was not included in appellant’s notice of appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, a petition was filed by the San Joaquin County Human Services Agency (Agency) regarding one-year-old Ka. V. and her twin sibling, Ke. V., which, as later amended, alleged that the minor’s mother (who was pregnant) used marijuana daily, and her home was “filthy” and unsafe. Appellant was declared the presumed father of the children.
The mother gave birth to another child--A.S.--in November 2005, and a petition concerning this child was filed as well, which included an allegation that appellant had been convicted of sales of a controlled substance the previous month.
The parents were present at the jurisdictional hearing, at which the juvenile court found the allegations in the petition true. At the dispositional hearing, the court adopted the social worker’s recommendations, which included reunification services for appellant and the mother. The following month, A.S. was placed with the parents.
At a review hearing in January 2007, the juvenile court ordered that Ka. V. and Ke. V. could be returned to the mother as long as appellant was not present in the home until he completed an anger management program.
Three weeks later, a supplemental petition was filed after the mother left the children with appellant when she was arrested on a warrant, and there were indications that appellant had been residing in the home. An initial petition also was filed on a fourth child—three-month-old T.S.--which contained additional allegations that the parents failed to comply with the juvenile court’s order to turn the minors over to the Agency and their whereabouts were unknown.
In March 2007, the juvenile court sustained the allegations in the newest petitions. Prior to the dispositional hearing, a subsequent petition was filed after the parents were located in Texas, where they had been taken into custody on charges related to Ke. V.’s death from blunt force trauma. In September 2007, the juvenile court sustained the initial petition as to T.S. and the subsequent petition regarding the other minors, and continued the matters for a dispositional hearing.
The parents remained incarcerated in Texas, with appellant awaiting trial for murder in Ke. V.’s death. At the dispositional hearing in October 2007, the juvenile court denied further reunification services and set the matters for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors. Notice of the hearing and a “notice of intent to file writ petition packet” were sent to appellant, and he was personally served with notice of the hearing in December 2007 and, again, in March 2008.
At a hearing in July 2008, the Agency requested that visitation with extended family members be discontinued because it was having a negative effect on Ka. V. and the relatives were not being considered for adoption. The juvenile court ordered visitation with the relatives to be discontinued.
According to the report prepared for the section 366.26 hearing, Ka. V. had been diagnosed with post traumatic stress disorder (PTSD) and all three minors were considered “special needs” children due to their “early life experiences and adverse parental backgrounds.” However, “several well qualified [a]doption [h]omestud[ie]s” had been identified for the minors, who had been visiting with the prospective adoptive family that had been selected for them. The social worker recommended a permanent plan of adoption.
A copy of the social worker’s report was sent to appellant in prison. The court ordered that appellant could appear by telephone at the section 366.26 hearing.
Appellant appeared by telephone at the hearing in September 2008. By this time, the minors had been placed in the prospective adoptive home for more than a month. Appellant, who was now serving a 30-year sentence, testified that he objected to the termination of his parental rights, contending the minors should not have been taken “in the first place” and that “[t]hey tr[ied] to kick [him] out of [his] own home” when he “was the only person on that lease.” Appellant testified that he wanted his mother and sisters to adopt the minors.
At the conclusion of the hearing, the juvenile court ordered a permanent plan of adoption and terminated parental rights.
DISCUSSION
I
Appellant claims he received ineffective assistance of counsel. This claim is without merit.
When making a claim of ineffective assistance of counsel, the burden is on appellant to establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) Unless the record affirmatively establishes ineffective assistance of counsel, we must affirm the judgment. (Cf. People v. Pope (1979) 23 Cal.3d 412, 426.)
Appellant’s first complaint about his trial attorney is that she did not cross-examine the social workers on issues pertaining to visitation and placement with relatives, about psychological issues related to Ka. V.’s diagnosis of PTSD and, in general, regarding the social workers’ written report. We begin by noting that the focus of a section 366.26 hearing is to determine the most appropriate permanent plan for the child. Normally, neither visitation nor placement with relatives is an issue before the court at a section 366.26 hearing when children are adoptable and have already been placed in a prospective adoptive home. Thus, appellant’s attorney cannot be faulted for failing to present evidence on these issues at the section 366.26 hearing.
With regard to Ka. V.’s diagnosis for PTSD, appellant does not specify how this was relevant to the issues before the juvenile court at the section 366.26 hearing. However, to the extent this bore on the issue of adaptability, there was no evidence that Ka. V.’s diagnosis would present an obstacle to her adoption. Thus, appellant has not established that a more favorable result was reasonably probable had this area of inquiry been more fully explored by his attorney.
Appellant’s claim his attorney should have cross-examined the social workers on their report is too vague to merit relief. Without any explanation as to how this might have led to a more favorable result for appellant, there is no basis for declaring trial counsel’s performance to be deficient. The same is true of appellant’s contention that his attorney “refus[ed] to call witness[es] on [his] behalf.”
Appellant also contends his attorney knew his correct address but failed to provide it to the court, with the result that he did not receive the writ packet sent to him, as well as unspecified court reports. However, it was incumbent upon appellant to keep the court advised of his whereabouts when his location changed. (§ 316.1, subd. (a).)
In any event, the record does not establish where appellant was incarcerated in October 2007 when the section 366.26 hearing was first set or that he no longer was in the county jail facility to which the initial writ packet was sent. Nor does the record show that appellant’s attorney had different information at that time than the court or the social worker. The record also is silent regarding appellant’s purported failure to receive the writ packets.
Furthermore, in March 2008, appellant was personally served with notice of an upcoming hearing at a prison facility in Abilene, Texas, and a proof of service with this address was prepared by the Agency’s attorney and filed with the juvenile court. Thus, prior to the mailing of the second writ packet, the court and the Agency had been informed of appellant’s whereabouts.
As to the social worker’s report for the section 366.26 hearing, it was sent to appellant at the same address where appellant was personally served with notice of the hearing, and nothing in the record indicates he did not receive this or other reports sent to him during his incarceration in Texas.
Appellant’s final complaint about his trial attorney is that she did not file timely appeals from prior hearings. There is nothing in the record to indicate that appellant asked his attorney to file appeals on his behalf other than those that counsel filed. As with his other claims in this regard, appellant has failed to establish ineffective assistance of counsel on this basis.
II
Next, appellant asserts that the juvenile court erred by “proceeding with hearings and trials” in his absence. We reject this claim as well.
In this section of his brief, appellant also refers to “perjured reports and testimony,” which we deem unsupported by the record and irrelevant to the issue of whether he was entitled to be present at hearings.
“‘In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.’” (In re Jesusa V. (2004) 32 Cal.4th 588, 602, quoting In re Axsana S. (2000) 78 Cal.App.4th 262, 269.) At the section 366.26 hearing, appellant appeared by telephone, was represented by counsel, and testified. In other words, he received meaningful access to the courts.
Furthermore, “a felon incarcerated in a jurisdiction other than California is not denied equal protection of the law where the State of California has statutorily provided a means by which inmates confined within its own penal system may insure their physical presence at any judicial proceeding designed to sever their parental rights, without establishing a similar mechanism for those confined by other states.” (In re Gary U. (1982) 136 Cal.App.3d494, 497; In re Maria S. (1997) 60 Cal.App.4th 1309, 1312.)
Appellant asserts that the juvenile court should have issued an “inter[]state compact order” to transport him to California for appearances in the dependency proceedings. We are aware of no interstate compact for the transfer of prisoners for dependency proceedings, nor has appellant provided any legal authority as to the existence of such a compact.
In sum, no error has been demonstrated.
III
Finally, appellant asserts the juvenile court erred by finding the minors adoptable. He points to Ka. V.’s “health and disability problems,” maintaining she was born with downs syndrome, suffers from a speech problem, and was allegedly abused in foster care. Again, he fails to provide support in the record that Ka. V. suffered from any of these problems. Nonetheless, he concludes that the “minors should have been placed with family.” He is incorrect.
In order to select and implement adoption as the permanent plan, the juvenile court “must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).) “The issue of adaptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (Id. at pp. 1649-1650, italics omitted.)
An order terminating parental rights must be affirmed if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Here, despite Ka. V.’s diagnosis of PTSD and the identification of all the minors as having special needs, “several well qualified [a]doption [h]omestud[ie]s” had been identified for them and they had been placed in an adoptive home. Thus, while there was evidence the minors had some special needs (not surprisingly in light of their history), there was no evidence that these needs would pose an obstacle to adoption. Under such circumstances, the juvenile court was warranted in concluding that the minors were adoptable.
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BLEASE, Acting P. J., BUTZ, J.