Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. J986370. Marilyn Martinez, Commissioner.
Leslie A. Barry, under appointment of the Court of Appeal, for Defendant and Appellant J.T.
Lawrence E. Fluharty, under appointment of the Court of Appeal, for Defendant and Appellant Michael C.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
Appellants Michael C. (Father) and J.T. (Mother) appeal from an order pursuant to Welfare and Institutions Code section 366.26 terminating their parental rights as to minor M.C. Father challenges the order on the grounds that he did not receive a proper hearing on his motion to replace his counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden), was denied effective assistance of counsel and failed to receive copies of reports; Mother joins in these arguments. We conclude that these arguments lack merit and affirm the juvenile court’s order terminating parental rights.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Minor M.C. was born in January 2006. M.C.’s 10 siblings were current or former dependents of the juvenile court. He initially came to the attention of the Los Angeles County Department of Children and Family Services (Department) in May 2006, when a referral reported that Mother was walking into oncoming traffic while under the influence of drugs and alcohol and while holding M.C. The Department did not locate Mother until June 2006. She stated she was living in a shelter but would not disclose M.C.’s whereabouts. On June 21, 2006, the Department received another referral and learned that M.C.’s godmother, L.M., was caring for him. The Department temporarily detained M.C. with L.M.
On June 29, 2006, the Department filed a section 300 petition, alleging under subdivisions (b), (g) and (j) that M.C. was at risk by reason of Mother’s substance abuse, failure to provide ongoing care and supervision, medical neglect, and failure to comply with prior court orders and reunify with M.C.’s siblings. The petition identified Father as M.C.’s father and he received notice of the hearing on the petition at his last known address. At the hearing on the petition the same day, neither Mother nor Father appeared. The juvenile court detained M.C., ordered family reunification services (expressly noting that Mother and Father had been noticed that the Department would seek an order of no reunification services at disposition) and permitted Mother and Father monitored visitation.
The Department’s July 21, 2006 jurisdiction/disposition report indicated that the social worker had recently received a telephone call from Father’s girlfriend, Emma P., who stated that Father had been in Wasco State Prison since May. The social worker tried to call Father, but was unable to reach him because he was still being processed through the reception center and had not yet received assigned housing. At the July 21, 2006 hearing, Mother appeared but Father did not. The juvenile court appointed Daniel Rooney (Father’s counsel) to represent Father. It then continued the hearing for one month and ordered that Father be transported to court to attend the hearing.
Before the next hearing, the social worker informed the juvenile court that she learned Father was incarcerated at the Sierra Conservation Center in Jamestown and had a release date of October 22, 2008. She initiated orders to have Father removed from prison for the hearing. She tried to contact him by telephone several times, but was unable to reach him due to his constantly being moved.
Father was present in court for the August 31, 2006 hearing. The juvenile court found Father to be M.C.’s presumed father. It learned that M.C. had been living with Father before Father was incarcerated and also that Father had been awarded custody of Mi., one of M.C.’s siblings. Emma P. was currently caring for Mi., and the juvenile court found that Father had made a plan for care of Mi. while he was incarcerated. Father’s counsel represented: “Father would like the court to know he very much wants custody of his child and will do everything in his power while he’s incarcerated to comply fully with the court’s orders.” The juvenile court ordered that Father be maintained in the county jail for one day to enable the social worker to interview him. Father wrote a letter to the juvenile court the following day in which he reiterated his counsel’s statements that he was very interested in regaining custody of M.C.
According to a subsequent letter from Father, sometime after Father was incarcerated Mother took M.C. from Emma P. using threats and violence.
In an interview with the social worker, Father stated M.C. lived most of the time with him from the time he was one and one-half months old (March 2006) until Father was incarcerated in April 2006. He confirmed his October 2008 release date, stating that he had been incarcerated for driving under the influence and that it was his third offense. According to the Department’s report, “Father stated I would like for M.C. to live with my Fiance[e] Emma P. until I get out of jail and return home and then I would like for him to live with me.”
The Department’s report for the next hearing recommended that no reunification services be offered either to Mother or Father on the grounds that Mother had a history of substance abuse, and had previously had her parental rights terminated as to M.C.’s siblings and had failed to make a reasonable effort to rectify the problems leading to termination (§ 361.5, subd. (b)(11) & (13)); and that Father was currently incarcerated and not scheduled to be released for two years (§ 361.5, subd. (e)(1)). On October 17, 2006, the Department filed an amended section 300 petition which added an allegation pursuant to subdivision (g) that Father “has several arrest and felony convictions including but not limited to Driving Under the Influence and is currently incarcerated until 10/22/08. Such criminal history by the child’s father endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.” The Department served Father with notice of the hearing on the amended petition.
Father was present in court for the October 17, 2006 hearing. Father’s counsel stated that the amended allegation against Father was “pretty factual and straightforward,” and indicated that he would proceed according to “Malinda S.” After considering the Department’s previous reports, a letter from the Department confirming Father’s release date and the letter from Father expressing his desire for custody of M.C., the juvenile court indicated that its tentative ruling was to sustain the petition as pled, order M.C. suitably placed, order that no reunification services be provided to Mother or Father and set the matter for a selection and implementation hearing. In response, Father’s counsel argued: “Father very much would like the opportunity to take care of his son. He realizes that he will not be able to do so for about two years. He is trying to take all the programs necessary while incarcerated and would request the court, as reflected in his letter, to perhaps proceed by way of guardianship of [M.C.] with the current caretaker that would allow him the opportunity to request the court two years from now to place the child with him. [¶] Alternatively, we’d like the court to consider directing the Department to place [M.C.] with Emma P. That’s the father’s significant other. [M.C.] did live with Emma and the father for a few months between his birth and April of 2006 when the father became incarcerated.”
Pursuant to In re Malinda S. (1990) 51 Cal.3d 368, superseded by statute as recognized in People v. Otto (2001) 26 Cal.4th 200, 207, a parent may waive his or her right to cross-examine the social worker and allow the juvenile court to make jurisdictional findings on the basis of the social worker’s report and other documentary evidence.
The juvenile court did not deviate from its tentative ruling. It carefully explained to Father the basis for its ruling, stating that while it appreciated the sentiments Father expressed in his letter, it could not keep M.C. “in limbo for two years.” Specifically, the juvenile court stated: “The length of reunification services is six months for this child, and that six months would end at the end of February ’07 given the petition was filed at the end of June ’06. That [Father] will be incarcerated for another two years. So the length of incarceration is a significant factor. I also take into consideration this child’s very young age. This child is nine months old. I take into consideration the child’s relationship with father. This child was with the father for a few months soon after birth. So the child had contact with the father during the child’s first three months of birth. It’s not reasonably likely that the child would have a recollection of that. The child has been out of contact with the father for more than half of the child’s young life. Three months as opposed to approximately nine months is about one-third of the child’s life.” With respect to Father’s visitation, the juvenile court ordered no contact unless the caretaker could reasonably take M.C. for a visit while Father was in county jail and permitted a visit after the hearing.
Contrary to the representation in Father’s opening brief, the juvenile court did make the requisite findings as to Father by clear and convincing evidence.
The juvenile court set February 6, 2007 as the date for the selection and implementation hearing pursuant to section 366.26. It thereafter directed the clerk to mail to Mother and Father a copy of the statutory writ information and further directed Father’s counsel to provide Father with “a copy of the case plan and his appeal rights.” The juvenile court then stated to Father: “You’ve just been handed some documents and I’m required to give you a summary. If you wish to appeal my order just now setting the next hearing to select and implement a permanent plan, you must file a petition for an extraordinary writ. You may use the forms that have just been provided to you or any similar format. And, of course, you may discuss this in more detail with Mr. Rooney.”
On November 30, 2006, Father attempted to file a notice of intent to file a writ petition and request for the record, but it was rejected as untimely.
The Department’s report for the selection and implementation hearing found that M.C. was adoptable and identified M.C.’s caretaker, L.M., as the prospective adoptive parent. But the adoption homestudy for L.M. had not been approved because she declined to provide information to permit a background check on her children’s biological father. The report also indicated that the social worker had spoken with Father, who stated that he would attend the hearing and that he was not happy with his counsel. A prison litigation representative reported that she had attempted to call Father’s counsel on Father’s behalf, but that the call was blocked and would not go through.
Neither Mother nor Father was present in court on February 6, 2007 and the juvenile court continued the section 366.26 selection and implementation hearing. L.M. was present and indicated that she would cooperate with the homestudy process by providing all necessary information. The juvenile court ordered that M.C. not be removed from L.M.’s home absent an emergency.
In a March 13, 2007 ex parte application filed by the Department, it reported that L.M. called the social worker on March 1, 2007, stating that she wanted M.C. removed from her home. The social worker directed LaRhonda M. to the adoptions social worker and also advised the adoptions social worker of the problem. The social worker followed up on March 5, 2007; La Rhonda M. stated that she was tired of all the questions concerning her children’s biological father and told the social worker to pick up M.C. by March 9, 2007. When the social worker later called L.M. to arrange M.C.’s pick up, LaRhonda said she would bring M.C. to the social worker’s office. On March 9, 2007, L.M.—who was upset and angry—dropped off M.C. at the social worker’s office with one bag of clothing and without saying good-bye to M.C. The social worker immediately placed M.C. in a prospective adoptive home with parents who had a completed homestudy. By its application, the Department sought court approval of the new placement.
Portions of the Department’s April 3, 2007 report calendar each of these dates four days later than represented in the application.
The juvenile court did not review the application until April 3, 2007, the date set for the continued selection and implementation hearing. Father was not present at the hearing due to a problem with being transported from county jail. Father’s counsel asked that the section 366.26 hearing be continued and objected to the hearing proceeding in Father’s absence. The juvenile court continued the hearing for two days and issued a removal order for Father.
Father appeared on April 5, 2007; Father’s counsel indicated that Father sought the appointment of a different attorney. Father also submitted a letter to the juvenile court entitled “Conflict of Interest, Ineffective Counsel, Seeks New Counsel.” The juvenile court cleared the courtroom and conducted a Marsden hearing. In response to the juvenile court’s question as to why Father wanted his counsel relieved, Father stated that, initially, his understanding from counsel was that he should sign papers and give M.C. up. Father explained that he did not want to do that. Next, Father said that he did not know what to do with the “appeal” papers he received and thought that his counsel should have explained them to him. Father added that he called counsel and never got a response. He also criticized counsel for not responding to inquiries regarding whether his fiancée could take care of the benefits his other children were receiving while he was incarcerated.
A Marsden hearing permits one seeking removal of a court-appointed attorney to specify examples of inadequate representation and allows the attorney to respond. (Marsden, supra, 2 Cal.3d at pp. 123–124; accord, People v. Memro (1995) 11 Cal.4th 786, 857.)
The juvenile court initially responded by pointing out that it had ordered at disposition that Father not receive reunification services, which meant that the goal of the case was not to place M.C. with Father. It also clarified that the papers to which Father had referred involved information on filing an extraordinary writ. When the juvenile court asked Father’s counsel to respond, he stated: “I believe we did discuss the .26 hearing writ.” He further recalled that he discussed the writ with Father and declined to file it because he could see no factual or legal error in setting the hearing pursuant to section 366.26. He had explained to Father that the law requires a parent to reunify with a young child within one year and that Father would still be incarcerated in one year. With respect to Father’s telephone calls, counsel stated most days he is in court and that when Father called during the day, he would reach counsel’s answering machine which was incapable of receiving collect calls.
Father stated that he had no further comments. The juvenile court denied Father’s request for a new attorney. It ruled: “Mr. Rooney’s decision to not file the petition for an extraordinary writ was based on his analysis of the case that there was not a legal or factual basis to do so, would have otherwise been frivolous. That was a legal decision for him to make. There isn’t any evidence that he has made an unreasonable decision. And, therefore, Mr. Rooney stays as counsel.” In the presence of all parties and counsel, the juvenile court continued the section 366.26 hearing.
The Department’s May 3, 2007 review report stated that M.C. was adjusting well to his prospective adoptive home, was receiving excellent care in a safe and loving environment and had accepted the family as his own. The juvenile court held the section 366.26 selection and implementation hearing on May 3, 2007. Father was present in court. The juvenile court admitted the Department’s reports into evidence and Mother testified. Father’s counsel reiterated Father’s objection to the termination of parental rights, asserting that Father would like the opportunity to bond with M.C. once he is released from prison. The juvenile court found by clear and convincing evidence that M.C. was adoptable and further found no evidence showing that it would be detrimental to M.C. to terminate parental rights. Accordingly, the juvenile court terminated Mother’s and Father’s parental rights as to M.C.
Mother and Father separately appealed.
DISCUSSION
Father appeals the order terminating his parental rights on several grounds. He asserts that the juvenile court did not conduct a proper Marsden hearing, that it abused its discretion in declining to replace his counsel and that his due process rights were violated to the extent he received ineffective assistance of counsel and inadequate notice. Mother urges that the order terminating her parental rights should be reversed for the reasons raised in Father’s opening brief. Because she makes no independent arguments on appeal, we need only consider the claims raised in Father’s opening brief. (E.g., Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
We find no error. The juvenile court conducted an adequate inquiry during Father’s Marsden hearing and properly exercised its discretion in ruling there was no reason to replace Father’s counsel. Further, nothing in the record demonstrates that Father received ineffective assistance of counsel. Finally, although Father did not receive the Department’s report for the section 366.26 hearing which discussed M.C.’s replacement, he failed to demonstrate any prejudice stemming from not being immediately notified of M.C.’s change in placement. For these reasons, we affirm the order terminating Father’s and Mother’s parental rights.
I. The Juvenile Court Conducted a Proper Marsden Hearing and Did Not Abuse its Discretion in Denying Father’s Request for New Counsel.
“The governing legal principles [of Marsden] are well settled. ‘“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” [Citations.]’ . . . ‘[S]ubstitution is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair” the defendant’s right to assistance of counsel.’ [Citations.]” (People v. Hart (1999) 20 Cal.4th 546, 603; accord, People v. Fierro (1991) 1 Cal.4th 173, 204.) Marsden proceedings are applicable in dependency cases. (§ 317.5; e.g., In re Joann E. (2002) 104 Cal.App.4th 347, 351; In re James S. (1991) 227 Cal.App.3d 930, 935.)
A. The Marsden Hearing Was Adequate.
“When a defendant moves for substitution of appointed counsel, the court must consider any specific examples of counsel’s inadequate representation that the defendant wishes to enumerate.” (People v. Webster (1991) 54 Cal.3d 411, 435.) Here, the juvenile court permitted Father to explain that his dissatisfaction with his counsel stemmed from counsel initially advising him to relinquish his parental rights, failing to thoroughly explain the writ procedures, failing to respond to telephone calls and declining to advise him regarding benefits for his other children. When Father had concluded, the juvenile court asked twice if he had any further comments, and Father responded negatively. Indeed, the Marsden hearing transcript demonstrates that the juvenile court provided Father with ample opportunity to articulate the bases for his substitution request. “‘A trial court’s duties [under Marsden]are fully performed when it has given the defendant every opportunity to present and substantiate his specific charges.’” (In re James S., supra, 227 Cal.App.3d at p. 935, fn. 12.) The juvenile court fulfilled its duty.
Father’s arguments to the contrary are unpersuasive. First, Father contends that the Marsden hearing was procedurally deficient because the juvenile court failed to read a letter that he had submitted entitled “Conflict of Interest, Ineffective Counsel, Seeks New Counsel.” Father’s counsel represented at the beginning of the hearing that the juvenile court had not had an opportunity to read the letter. Despite this, Father never asked the juvenile court to read his letter, nor did he object to the juvenile court conducting the Marsden hearing without having read the letter.
The letter is essentially a series of generalized propositions, such as “[i]n a child custody proceeding defense counsel must seek to obtain reunificational [sic] process at all cost” and “the interaction and verbal communication between counsel and claimant are combative, hostile and prejudicial.”
Although Father’s counsel referred to “letters,” the transcript contains only a single, three-page letter from Father.
As the court explained in In re Christina L. (1992) 3 Cal.App.4th 404, 416: “‘“The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” [Citation.]’ [Citation.]” (See also In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 [“A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do”].) Father’s silence in response to learning that the juvenile court did not read his letter precludes him from raising the issue on appeal. In any event, during the Marsden hearing Father had every opportunity to—and did—present the matters raised in his letter that he believed amounted to a conflict of interest and ineffective assistance of counsel.
Second, Father contends that the juvenile court failed to make an adequate inquiry into his allegation that he could not communicate telephonically with his counsel. Father stated that he had telephoned his counsel an unspecified number of times and not received a response. Immediately following this allegation, however, Father additionally complained that counsel declined to provide advice when he asked him questions about his fiancée’s receiving benefits for his other children. Under these circumstances, where Father’s own statements indicated that he had been able to speak directly with his counsel, no further inquiry was required. (See People v. Avalos (1984) 37 Cal.3d 216, 231 [where the defendant claimed that counsel had failed to communicate with him and to prepare for trial, the trial court conducted an adequate Marsden hearing by satisfying itself that counsel was prepared even though it failed to inquire further about the failure to communicate]; see also People v. Terrill (1979) 98 Cal.App.3d 291, 300–301 [where the defendant’s specific instances of inadequate representation fall short of demonstrating a complete breakdown in the attorney-client relationship, trial court has no duty to make an inquiry of counsel].)
Finally, Father contends that the juvenile court improperly permitted Father’s counsel to make “vague, equivocal and unsworn” responses to Father’s allegations. The record does not support Father’s characterization of Father’s counsel’s responses. Rather, Father’s counsel pointedly stated that he recalled both discussing “the .26 hearing writ” with Father and his reasons for declining to file the writ. “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]” (People v. Smith (1993) 6 Cal.4th 684, 696.) Moreover, there is no requirement that counsel be sworn before responding to a defendant’s Marsden motion. (See People v. Barnett (1998) 17 Cal.4th 1044, 1091 [though observing that defense counsel had been sworn during Marsden hearing, the court did not make sworn testimony a requirement of Marsden motion practice].)
By giving Father ample opportunity to present and support his charges against his counsel, the juvenile court fully performed its duties under Marsden. (People v. Huffman (1977) 71 Cal.App.3d 63, 80–81.)
B. The Juvenile Court Properly Exercised Its Discretion by Denying Father’s Marsden Motion.
Having determined that the juvenile court conducted an appropriate Marsden hearing, our inquiry turns to whether the court’s denial of Father’s request for new counsel was an abuse of discretion. In Marsden, supra, 2 Cal.3d at page 123, the court recognized that “‘[a] defendant’s right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused. . . .’” To demonstrate an entitlement to new appointed counsel, “[a] defendant must make a sufficient showing that denial of substitution would substantially impair his constitutional right to the assistance of counsel [citation], whether because of his attorney’s incompetence or lack of diligence [citations], or because of an irreconcilable conflict [citation].” (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.)
In this case, the juvenile court properly exercised its discretion in finding that the reasons Father provided during his Marsden hearing fell short of establishing that a denial of substitution of counsel would substantially impair his constitutional right to effective assistance of counsel. (See, e.g., People v. Moore (1988) 47 Cal.3d 63, 76 [Marsden motion properly denied where “the record shows the court exercised extreme care in considering defendant’s reasons for requesting substitution of counsel, and asked thoughtful follow-up questions before properly finding that defendant’s concerns were either unsubstantiated or insufficient to justify the appointment of new counsel”].) Father asserts that the juvenile court abused its discretion in denying his Marsden motion, arguing that his constitutional right to the assistance of counsel was substantially impaired for multiple reasons. Again, we disagree.
First, Father contends that his inability to communicate with his counsel was an adequate basis for substitution of counsel. Father, however, did not establish that he had been unable to communicate with counsel; rather, he asserted that his counsel had not been able to accept an unspecified number of collect calls from prison. Indeed, both Father and Father’s counsel discussed specific conversations they had regarding the case. These circumstances are unlike those in In re O.S. (2002) 102 Cal.App.4th 1402, a case on which Father relies, where counsel’s failure to communicate with a father who qualified for presumed father status impaired the father’s Sixth Amendment right to counsel. There, over the course of three months, the father called counsel many times and left several messages; he also left a fax number where he could be reached and specifically asked for a paternity test. Counsel never spoke with the father, nor attended the hearing at which the father’s parental rights were terminated. (Id. at p. 1411.)
In contrast to the blanket failure to communicate in In re O.S., our consideration of Father’s contention is guided by the admonition in People v. Silva (1988) 45 Cal.3d 604, 622, that “the number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish” a basis for substitution of counsel. Applying this principle, People v. Hart, supra, 20 Cal.4th at pages 601 and 604, held that the trial court properly denied a Marsden motion on the ground that trial counsel was prepared for trial and therefore did not need to visit defendant on a regular basis, rejecting the defendant’s complaints he had not seen trial counsel for approximately seven and one-half months and counsel had failed to keep nine separate appointments with him. Here, the juvenile court properly exercised its discretion in concluding some number of missed telephone calls was an inadequate basis to warrant substitution of counsel.
In a second and related argument, Father asserts that his counsel’s failure to communicate with him is best illustrated by Father’s lack of knowledge about M.C.’s replacement in March 2007. The record does not support this assertion. Father’s counsel appeared at the April 3, 2007 hearing where M.C.’s replacement was discussed. Father appeared in court with his counsel two days later. The record is silent as to whether counsel discussed the replacement with Father. But, in the absence of any indications to the contrary, we must presume that counsel appropriately advised Father of M.C.’s replacement. (Evid. Code, § 664 ; In re Daniel S. (2004) 115 Cal.App.4th 903, 915.) The fact of the Marsden motion is insufficient to rebut this presumption, particularly given that the failure to learn of M.C.’s replacement earlier was not one of Father’s complaints.
Third, Father contends that his failure to establish a rapport with his counsel was an additional reason warranting substitution of counsel. But a lack of rapport or a lack of trust between a defendant and appointed counsel does not require that a motion to substitute counsel be granted. (People v. Memro, supra, 11 Cal.4th at p. 857 [“‘“[I]f a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law”’”]; see also People v. Smith (2003) 30 Cal.4th 581, 606 [“A defendant may not effectively veto an appointment of counsel by claiming a lack of trust in, or inability to get along with, the appointed attorney”].)
Finally, Father contends that substitution was warranted due to counsel’s failure to file a petition for extraordinary writ pursuant to California Rules of Court, rule 8.452, to challenge the order setting a permanent plan hearing pursuant to section 366.26, or to advise Father how to do so himself. The juvenile court ruled that Father’s counsel made a reasonable decision not to pursue writ relief that was based on his analysis of the case. Father’s complaint regarding counsel’s failure to pursue a writ is no different than that rejected by the court in People v. Webster, supra, 54 Cal.3d 411, 435–436, where the court affirmed the denial of a Marsden motion, reasoning: “[The trial court] allowed defendant to explain his single ground of dissatisfaction—counsel’s handling of pretrial writs. The court sought a response from counsel and considered the information provided in reaching a decision. There is no evidence that counsel intended to mislead the court. The court was entitled to accept counsel’s explanation and was not obliged to inquire, sua sponte, into the actual efficacy of counsel’s efforts. . . . [¶] Even if evidence of counsel’s inadvertence had been before the court, defendant’s showing indicates neither constitutionally inadequate assistance nor a fundamental breakdown of attorney-client relations. [Citation.]” (See also In re Horton (1991) 54 Cal.3d 82, 95 [“‘When the accused exercises his constitutional right to representation by professional counsel, it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the accused surrenders all but a handful of “fundamental” personal rights to counsel’s complete control of defense strategies and tactics’”].)
Moreover, to the extent Father’s complaint is that his counsel failed to discuss the writ procedures with him, the juvenile court made a credibility determination that we decline to disturb on appeal. (E.g., In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404.) Though Father stated that his counsel did not explain the writ forms to him, Father’s counsel had a different recollection, stating “I believe we did discuss the .26 hearing writ.” Where an assessment of credibility is the determining factor, the juvenile court has discretion to accept counsel’s version of events proffered in a Marsden hearing. (E.g., People v. Jones (2003) 29 Cal.4th 1229, 1245.) The juvenile court’s denial of Father’s Marsden motion was proper exercise of discretion.
II. Father Has Not Met His Burden to Show That He Received Ineffective Assistance of Counsel.
A. Father’s Claims of Ineffective Assistance of Counsel Occurring Before the Section 366.26 Hearing Are Not Cognizable on Appeal.
“In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where ‘there simply could be no satisfactory explanation’ for trial counsel’s action or inaction. [Citation.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) Usually “[t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. . . . Evidence of the reasons for counsel’s tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. [Citation.]” (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Because Father has not filed a habeas petition in this case, our review is limited to the appellate record. On the basis of our review, we conclude that Father has failed to establish that he received ineffective assistance of counsel.
The test for showing ineffective assistance of counsel in dependency proceedings is the same test used in criminal proceedings. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667–1668.) A parent claiming ineffective assistance of counsel “‘must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent’s] interests would have resulted.’ [Citations.]” (In re Dennis H., supra, 88 Cal.App.4th at p. 98; accord, In re Athena P. (2002) 103 Cal.App.4th 617, 628.)
Father asserts that his counsel failed to act in a reasonably competent manner in several respects: Counsel failed to challenge the basis for jurisdiction over Father; he failed to seek additional time to prepare for disposition; he did not advocate against M.C.’s removal on the ground that Father had made arrangements for his care while incarcerated; he did not challenge the denial of reunification services; and he failed to notify Father of M.C.’s replacement and advocate for placement with Emma P. With the exception of actions relating to M.C.’s replacement, each of these actions occurred in connection with the October 2006 jurisdictional/dispositional hearing. But Father did not appeal from the disposition order, which is the first appealable judgment in a section 300 proceeding. (See In re Daniel K. (1998) 61 Cal.App.4th 661, 666–667.) In order to challenge findings or orders made at disposition or at prior hearings, an appeal from the disposition must be filed within the 60-day jurisdictional time limit. (Ibid.; § 395.) “[A]n unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150; accord, Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26.)
Father’s notice of appeal specified only that he was challenging the order made at the section 366.26 hearing terminating his parental rights, citing the hearing dates of February 6, April 3, April 5 and May 3, 2007. “A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.” (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.) Therefore, we may not consider Father’s claims of ineffective assistance of counsel that stem from actions allegedly taken or not taken at the jurisdictional/ dispositional hearing.
We note that even where an ineffective assistance of counsel claim is raised by way of a petition for writ of habeas corpus, “[t]he claim of ineffective assistance of counsel must relate to the order appealed from. [Citation.] Habeas corpus may not be utilized to challenge antecedent final orders. [Citation.]” (In re Carrie M. (2001) 90 Cal.App.4th 530, 534.)
Father urges that both his counsel’s and the juvenile court’s failure to provide him with adequate notice and advice concerning his right to writ relief following the setting of the section 366.26 hearing—which also occurred at disposition—makes his ineffective assistance of counsel claim cognizable on this appeal. The general rule is that a parent may not appeal from an order made at a hearing at which a section 366.26 hearing was set unless the parent timely files a petition for extraordinary writ review. (§ 366.26, subd. (l).) The juvenile court must advise the parent of the right to file such a petition. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.585(e), 5.600(b).) Where the juvenile court fails to advise a parent of the right to file a petition for writ relief, the parent appealing from the order terminating parental rights may challenge the predicate order setting the section 366.26 hearing. (In re Cathina W. (1998) 68 Cal.App.4th 716, 722.)
We previously addressed Father’s contention that his counsel failed to properly advise him about writ relief and found no basis to challenge the juvenile court’s rejection of Father’s grievance. We likewise find no merit to Father’s contention that the juvenile court failed to discharge its duty because it did not verbally inform him of the seven-day time limit for filing his notice of intention to file a writ petition. (Cal. Rules of Court, rule 8.450(e)(4)(A).) Neither the Welfare and Institutions Code nor the Rules of Court require the juvenile court to inform a parent of specific time limits. Section 366.26, subdivision (l)(3)(A) directs the juvenile court to give notice as follows: “A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.” Similarly, rule 8.600(b) of the California Rules of Court provides: “When the court orders a hearing under section 366.26, the court must advise orally all parties present, and by first-class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record, (California Rules of Court, rule 8.450) (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ (California Rules of Court, rules 8.452, 8.456) (form JV-825) or other petition for extraordinary writ.” (Accord, Cal. Rules of Court, rule 5.585(e).)
Father was present at the hearing setting the section 366.26 hearing; the juvenile court instructed Father’s counsel to provide Father with the statutory writ information and informed him: “If you wish to appeal my order just now setting the next hearing to select and implement a permanent plan, you must file a petition for extraordinary writ.” The juvenile court also told Father that he could use the forms provided to him or any similar format. Although the record does not explicitly state what forms were given to Father, the juvenile court directed the clerk to provide Father with the same forms being mailed to Mother. Those forms included form JV-820, the notice of intent to file writ petition and request for record, which states on its face that it must be filed “within 7 days of the date” of the order setting a hearing pursuant to section 366.26. By orally advising Father how to challenge the order setting the section 366.26 hearing and providing him with the relevant forms, the juvenile court fulfilled its statutory obligation.
Accordingly, because Father neither appealed from the disposition order nor filed a petition for extraordinary writ from the order setting the section 366.26 hearing, and has failed to establish good cause for those failures, we decline to consider any claims of ineffective assistance of counsel associated with those proceedings.
B. Father Cannot Establish Prejudice from Counsel’s Inaction Following M.C.’s Replacement.
On April 3, 2007, the date initially set for the section 366.26 hearing, the Department informed the parties about M.C.’s replacement from L.M. to a prospective adoptive family in another county. Two days later, Father appeared. The record does not reflect any discussion about M.C.’s replacement when Father was present. Father asserts that counsel was ineffective both because he failed to inform Father of the replacement and failed to advocate for a different placement, such as with Emma P.
Father also challenges M.C.’s replacement on the ground of lack of notice from the Department, a claim which we address separately in part III, post.
When evaluating a claim of ineffective assistance of counsel, a court “‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by [the appellant] as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . ., that course should be followed.’” (In re Elizabeth G. (2001) 88 Cal.App.4th 496, 503.) “Thus, a court may reject a claim if the party fails to demonstrate that but for trial counsel’s failings, the result would have been more favorable to the defendant. [Citation.]” (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Here, we conclude that even if Father’s counsel had objected to M.C.’s replacement and vigorously advocated for M.C.’s placement with Emma P., it is not reasonably probable that the outcome would have been different.
According to section 361.5, subdivision (a)(2), because of M.C.’s young age any court-ordered reunification services were limited to six months from the date M.C. entered foster care. Here, that six-month period commenced in August 2006. (See § 361.5, subd. (a)(3) [the date a child is deemed to enter foster care is the earlier of the jurisdictional hearing or 60 days after the date of removal from a parent’s physical custody].) Section 361.5, subdivision (a)(3) permits the juvenile court to extend the reunification period to a maximum of 18 months if it finds a substantial probability that the child will be returned to the physical custody of the parent within that time. These time limits apply to a parent who is incarcerated. (§ 361.5, subd. (e)(1).)
In this case, the outside time limit for the provision of reunification services would end in February 2008. But Father’s release date was not until October 2008. “When a child cannot be returned to the parent within the statutory time frame, the court is required to establish a permanent plan for the child and refer the case for a section 366.26 hearing.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1366; see also In re Joshua M. (1998) 66 Cal.App.4th 458, 474 [“‘Although the goal of the juvenile law is to reunite children with their parents whenever possible, this reunification must be accomplished within 18 months from the time the child is originally taken from his or her parents’ custody. [Citation.] This strict time frame, in turn, is a recognition that a child’s needs for a permanent and stable home cannot be postponed for an extended period without significant detriment’”].)
At disposition, the juvenile court indicated that it was constrained by these strict time frames. It stated that the length of Father’s incarceration was a “significant factor” in its decision, acknowledging that the statutory time limits for reuniting Father and M.C. would expire before Father was released and that it could not allow M.C. to be “in limbo for two years.” Moreover, by the time of the section 366.26 hearing—the point at which Father contends that counsel should have informed him of M.C.’s replacement and sought placement with Emma P.—the focus of the proceedings was on finding a permanent home for M.C. and not on maintaining his relationship with Father. As explained in In re Angel B. (2002) 97 Cal.App.4th 454, 464: “After the termination of reunification services, a parent’s interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.] In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care.” (See also In re Celine R. (2003) 31 Cal.4th 45, 49 [after termination of reunification services, “if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice”].)
At the April 3, 2007 hearing, the Department reported that M.C. was living with prospective adoptive parents who had a completed homestudy and were committed to providing M.C. with a permanent, stable home. Given that the focus of the juvenile court’s efforts at that stage in the proceedings was to provide M.C. with permanence and stability, it is not reasonably probable that the juvenile court would have ordered M.C. removed from the prospective adoptive home had Father’s counsel made such a request. Furthermore, we note that the juvenile court learned as early as August 2006 that Emma P. was caring for another child of Father’s and that Father requested M.C. be placed with Emma P. That the juvenile court declined to consider M.C.’s placement with Emma P. when the focus of the proceedings had not yet shifted away from reuniting M.C. with his Father further establishes it is not reasonably probable that the juvenile court would have granted such a request once the section 366.26 hearing had been set. Accordingly, the lack of prejudice is fatal to Father’s claim that he received ineffective assistance of counsel due to his counsel’s asserted failure to notify him of M.C.’s replacement and request a different placement.
III. Father Suffered No Prejudice from the Failure to Receive a Report.
Father’s final complaint is that he was prejudiced by a lack of notice of the proceedings, caused by the juvenile court’s failure to secure a permanent address for him and the Department’s failure to serve him with a copy of its report for the section 366.26 hearing. We find no basis for reversal.
Father also contends he was not served with the Department’s earlier reports, but we decline to consider this contention because Father neither objected on this basis at any of the hearings he attended (In re Kelley L. (1998) 64 Cal.App.4th 1279, 1285, fn. 8) nor appealed from the orders made at those hearings (Steve J. v. Superior Court, supra, 35 Cal.App.4th at p. 811).
Father initially contends that the juvenile court erred by failing to secure a permanent mailing address for him. But section 316.1 places the burden on the parent to provide the juvenile court with a permanent address, providing: “(a) Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address. The court shall advise each parent or guardian that the designated mailing address will be used by the court and the social services agency for notice purposes unless and until the parent or guardian notifies the court or the social services agency of a new mailing address in writing.” In any event, Father remained incarcerated throughout the section 300 proceedings; the Department noticed him at multiple addresses where he was incarcerated and juvenile court secured his appearance at all relevant hearings or continued those hearings so that he could be present.
Father does not contend that he failed to receive notice of any proceedings while incarcerated; rather, he contends only that he did not receive a copy of the Department’s report for the section 366.26 hearing. The record shows that the Department did not comply with California Rules of Court, rule 5.725(c), which requires: “Before the [section 366.26] hearing, petitioner [the Department] must prepare an assessment under section 366.21(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent or guardian and all counsel of record, and provide a summary of the recommendations to the present custodians of the child, to any CASA volunteer, and to the tribe of an Indian child.” The Department’s proof of service for the section 366.26 hearing shows that Father was not provided with a copy of the Department’s report in accordance with this rule.
We must consider whether such error was harmless beyond a reasonable doubt, as the lack of strict compliance with the notice statutes does not render subsequent proceedings void in the absence of prejudice. (In re Angela C. (2002) 99 Cal.App.4th 389, 393–395; accord, In re Daniel S., supra, 115 Cal.App.4th at pp. 913–914.) Father argues that his failure to receive the report was prejudicial because he was deprived of knowledge about M.C.’s replacement and hence the opportunity to object and suggest Emma P. as an alternative placement. We disagree. As discussed earlier in part II.B., infra, before disposition the juvenile court knew that Father’s preference was to have M.C. placed with Emma P.; it is not apparent from the record that it considered Emma P. a suitable placement at any time during the proceedings; and, by the time of the section 366.26 hearing, the juvenile court’s focus was on finding M.C. a stable, permanent adoptive home. In light of these circumstances, we can say beyond a reasonable doubt that Father would not have obtained a more favorable result even if he had received the Department’s report for the section 366.26 hearing.
DISPOSITION
The order terminating Mother’s and Father’s parental rights is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.