Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Madera County. Thomas L. Bender, Judge, Super. Ct. No. BJP014616-02
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Wiseman, J., and Levy, J.
D.D. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter, R.D. Appellant’s appointed appellate counsel submitted a letter dated November 5, 2008, advising that he would not be filing an opening brief for lack of an arguable issue pursuant to In re Sade C. (1996) 13 Cal.4th 952. We extended time for appellant to personally file a letter brief which she since has done.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In her letter, appellant raises numerous complaints directed against the child’s father, respondent Madera County Department of Social Services/Child Welfare Services (department), the superior court, and her court-appointed attorneys about much earlier phases of her daughter’s dependency. She also criticizes one or more of her attorneys for never filing a petition for modification (§ 388) to regain custody of R.D. Having reviewed the appellate record as summarized below, we conclude appellant’s accusations do not amount to claims that the superior court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994) and will affirm.
PROCEDURAL AND FACTUAL BACKGROUND
The Madera County Superior Court adjudged R.D. a dependent child and removed her from parental custody in 2002. The facts underlying the court’s exercise of jurisdiction over R.D. pertained to the father’s neglect. The child could not be placed with appellant due to her drug use and physically abusive history. Despite more than a year of reasonable reunification services, neither parent reunified. In particular, appellant failed to comply with the court-ordered plan and resolve her substance abuse issues.
The superior court terminated reunification efforts in May 2004. It simultaneously set a hearing (§ 366.26) for later that year to select and implement a permanent plan for the child. The superior court also gave appellant notice of her appellate remedy by way of a writ proceeding in this court. Although appellant initiated the writ process by filing a notice of intent to seek writ review, she never actually filed a writ petition. This led to our dismissal of her effort to seek extraordinary writ review of the superior court’s decision.
The superior court eventually selected a permanent plan of long-term foster care for the child. This continued to be the child’s permanent plan through the end of 2007. It was at that point the department reported the child wished to be adopted by her foster family, assuming neither of her parents could regain custody of her. The foster family likewise wished to adopt her. Consequently, at a January 2008 status review hearing, the superior court set a new section 366.26 hearing for the child and gave appellant, who was present in court, verbal notice of her right to seek appellate review of the superior court’s decision by initiating a writ proceeding in this court. Appellant did not seek our review.
In a May 2008 report to the superior court, an adoption specialist with the California Department of Social Services recommended that the court find the child adoptable and terminate parental rights. According to the report, appellant maintained consistent monthly visits as well as regular telephone contact with her daughter. Appellant also led the child to erroneously believe she (appellant) would establish a residence and regain custody. Given their visitation and contact, the child had strong emotional ties to appellant. However, those emotional ties were negative at times. Their relationship was characterized as negative because it was based on loyalty rather than trust. Also, appellant refused to take part in mediation for post adoption contact between the child and her birth family.
As the permanency planning hearing date approached, appellant apparently left hostile messages on the foster family’s home telephone answering machine. There was also evidence that a woman with appellant’s name and date of birth had been arrested and jailed on drug charges in June 2008. Appellant later denied being jailed.
The superior court eventually conducted the section 366.26 hearing in June 2008. At the hearing, appellant testified on her own behalf. Although appellant had not filed a petition for modification (§ 388), she testified as though she had done so in the hopes of still regaining custody of the child. Appellant denied having a drug problem and reported she had two part-time jobs.
Relevant to her claims on appeal, appellant testified that in 2005 she unsuccessfully tried to persuade the superior court to return the child to her care. In her view, she had done everything on her case plan. She claimed she twice tried through her former attorney to appeal without success and wanted to file “a 388” but the former attorney never did so.
Her attorney asked if they (current trial counsel and appellant) ever discussed “the possibility of filing a 388?” Appellant testified yes and agreed they had discussed “a plan of doing that once [appellant] obtained housing that could accommodate R[.]” Although she came close to obtaining such housing in December 2007, an automobile accident prevented that from happening. She claimed she was unable to work from December to mid April 2008 and finally returned to work in May 2008. Earlier on the day of the section 366.26 hearing she purportedly received a call from an owner of a four-bedroom home who was prepared to rent to appellant.
The child was also called as a witness. She testified she liked talking with her mother on the phone and visiting in person with her. The child confirmed if she could not return home to either of her parents, she wanted to be adopted.
In closing arguments, it was discussed and agreed by all that appellant had not filed a section 388 petition asking the superior court to change placement. Counsel for the child pointed out appellant had received “ample opportunities to file a 388 in this case and hasn’t done so.” In the department’s view, the idea that the child could reunify with the mother at that point was absurd. Appellant’s trial counsel conceded the child was adoptable but asked the superior court not to terminate parental rights. In addition to arguing certain statutory exceptions to adoption as the child’s permanent plan, the attorney pointed out:
“I think it is very unfortunate that my client has not been able to obtain housing. We tried to explain what happened in December. There was a car accident. She was ready to obtain housing when that happened. She’s only recently began to work. She’s not been able to obtain housing that could accommodate Rebecca, hence resuming work, and hence no request to change order or statement of changed circumstances has been put forth.”
The superior court followed the adoption specialist’s recommendation, found the child likely to be adopted and terminated parental rights.
DISCUSSION
As previously mentioned, appellant raises numerous complaints directed against the child’s father, the department, the superior court, and her court-appointed attorneys about much earlier phases of her daughter’s dependency. She also criticizes her attorneys from 2003 through 2008 for never filing a petition for modification (§ 388) to regain custody of R.D.
Appellant has forfeited her right to raise all of her complaints except to the extent she criticizes her current attorney for not filing a modification petition in time for the June 2008 section 366.26 hearing. This is because our appellate review is limited to the June 2008 termination proceedings, as it is the termination order from which she has appealed. (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812 [A challenge to the most recent order entered in a dependency matter may not dispute prior orders for which the statutory time for filing an appeal has passed]; § 366.26, subd. (l)(2) [Failure to petition for extraordinary writ review from an order setting a section 366.26 hearing precludes subsequent review on appeal from the section 366.26 hearing].)
As to appellant’s criticism of her attorney at the June 2008 hearing, we are not persuaded he was ineffective. As the record shows, he and appellant discussed a plan according to which he would pursue a section 388 petition for modification on her behalf once she had secured adequate housing. However, appellant’s automobile accident disrupted that plan for several months and indeed worsened her circumstances because she could not work. Even as of the June 2008 hearing, she had yet to obtain the housing she sought. Thus, there were no changed circumstances or new evidence, which section 388 requires, that the attorney could allege in support of a section 388 petition. (§ 388, subd. (a).) Also, there was no evidence that returning the child to appellant’s custody would be in the child’s best interests. This is the second element which a parent like appellant must establish in order to pursue a modification petition. (Ibid; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Under these circumstances, we reject appellant’s claim that counsel was ineffective. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252-1253.) “An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564 . . . .) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and ‘present argument and authority on each point made’ (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 . . .; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278 . . .). If he does not, he may, in the court’s discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised ‘points’—and, a fortiori, no reason to reverse or even modify the orders in question. (See People v. Brigham (1979) 25 Cal.3d 283, 289 . . . .)” (In re Sade C., supra, 13 Cal.4th at p. 994.)
Having reviewed her letter brief and the record herein, we conclude appellant raises no arguable issue regarding the superior court’s decision.
DISPOSITION
The order terminating parental rights is affirmed.