Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J06-00470
Swager, J.
Appellant Theodore L., Sr., appeals the judgment terminating his parental rights to his minor son, Theodore L., under Welfare and Institutions Code section 366.26. Appellant contends the court erred by failing to appoint counsel for him at an earlier stage in the proceedings. We affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
This portion of the opinion is derived, in part, from the earlier writ opinion filed in this case on March 5, 2007 (Theodore L. v. Superior Court of Contra Costa County, Case No. A115909 [nonpub. opn.]). The court takes judicial notice of this opinion. (See Evid. Code §§ 452, subd. (d), 459.) Passages from the earlier opinion are set forth in quotation marks.
The Contra Costa County Bureau of Children & Family Services (Bureau) initiated dependency proceedings concerning Theodore and his five siblings soon after his birth in February 2006. “The principal allegations of the six petitions were that baby Theodore had tested positive for cocaine at birth, and that [M.P.] (Mother) had a history of substance abuse that placed all the children at risk. (§ 300, subd. (b).) The petitions named [appellant] as an ‘alleged’ father, and included an allegation that he was currently incarcerated and had left the minors with an inappropriate caregiver Mother whose drug use put the children at risk. (§ 300, subd. (g).)
Mother is not a party to this appeal.
“The juvenile court detained the minors following a hearing on March 10, 2006. On that date a court clerk mailed a notice to [appellant], care of the Santa Rita jail in Alameda County, apprising him of the jurisdictional hearing set for March 14, 2006. [Appellant] responded by sending a letter to the Bureau, dated March 15, 2006, in which he said he had that day received notice of the hearing scheduled for the preceding day. He referred to the three younger minors as his children, stated he was ‘willing to do whatever [he] need[ed] to do to get custody’ of them, and indicated that he expected to be released from jail on April 11, 2006.
“Meanwhile, at the March 14 hearing, the court sustained the allegations against Mother under section 300, subdivision (b), and reserved adjudication of the allegations against [appellant] under section 300, subdivision (g). At that time the court set a continued jurisdictional hearing and dispositional hearing for April 11, 2006.
“Two days later, on March 16, 2006, the case worker assigned to the minors’ cases sent [appellant] a letter, at his Alameda County jail address, informing him he was ‘alleged to be the father’ of the six minors, that he had a right to participate in the current dependency proceedings involving these children, and that he had a right to counsel and could contact the public defender’s office for appointment of such counsel. The letter also informed [appellant] that the next hearing was April 11. On March 20, 2006, the court issued a prisoner removal order, arranging for [appellant’s] appearance at the jurisdictional/dispositional hearing scheduled for April 11.
“In this letter the case worker asked [appellant] to complete two forms. One of these was a notification of mailing address, which [appellant] completed on March 25, 2006, providing the Alameda County jail address. The Bureau filed this notification with the court on April 11, 2006.”
“On March 23, 2006, [appellant] signed the portion of the removal order that indicated his waiver of his ‘right to appear at this hearing.’ In a letter dated the following day, addressed to the case worker who had sent him the letter dated March 16, [appellant] said he ‘wasn’t able to make the last hearing because [he] was very ill.’ He stated he was ‘willing to do whatever possible to get back in [his children’s] lives.’ He asked for a response to ‘let [him] know [their] current status.’ He further asked that the hearing scheduled for April 11 be postponed for one day, since April 11 was his release date.
“In its report prepared for the April 11 hearing, signed April 6, 2006, the assigned case worker recommended, as to [appellant], that the court dismiss the jurisdictional allegations against him and that it not offer him reunification services based on his status as alleged father. The report stated that, while Mother had claimed that she and [appellant] were married and had lived together for over 17 years, she had not been able to give the date of their marriage or provide other evidence of the marriage. The case worker noted [appellant] had not been mentioned in the many previous referrals, which dated back to 1990, and it was unclear to her ‘when or how often they [had] lived together.’
“At the jurisdictional/dispositional hearing on April 11, when counsel for the Bureau noted that [appellant] had not appeared, the court explained that he had executed a waiver of his appearance. The Bureau then stated it had received a letter from [appellant] indicating that he expected to be released from jail that week. The Bureau requested that any visitation between [appellant] and the children be conditioned on [appellant’s] appearance to raise his status from alleged father. At the conclusion of the jurisdictional/dispositional hearing, the court adopted the Bureau’s recommendations as to [appellant]. The court also expressly admonished Mother that, if she were unable to resume custody of her children within six months, the court at that point might set the matter to determine permanent plans for all the children that could include the termination of her parental rights. (See §§ 361.5, subd. (a)(3), 366.21, subd. (e).)
“The report prepared for the hearing had previously recommended as to [appellant] a minimum of two supervised one-hour visits per month.”
“[Appellant] was not released in April, as he had anticipated. Instead he was transferred to a Contra Costa County jail based on a holding order for a parole violation. It appears [appellant] did not attempt to provide notice of his new address. On August 10, 2006, the court clerk mailed [appellant] a notice of the six-month status review hearing, initially set for September 8, 2006, addressing it to [appellant’s] former address at the Alameda County jail.
“In its report prepared for the six-month status review hearing, the Bureau recommended that the court terminate Mother’s reunification services as to four of the minors, and to set their cases for hearing to select permanent plans under section 366.26. The report continued to describe [appellant’s] status as ‘alleged’ father. [Appellant] sent a letter to the case worker, dated September 3, 2006, in which he indicated he had received this report. He stated that he expected to be released on September 26, 2006, and again said he was ‘ready to do whatever necessary to get custody,’ particularly of the youngest minor, his ‘only son.’ He requested that the case worker arrange an interview with him before his release.
“[Appellant] was released from the Contra Costa County jail on September 26, 2006. He made his first court appearance in these proceedings at the six-month status review hearing on October 12, 2006. The court appointed counsel for [appellant], who called him to testify in order to raise his status. Following this testimony, the court raised [appellant’s] status from ‘alleged’ to ‘presumed’ father. In view of that development, the court continued the status review hearing until later that month.
“Also on October 12, 2006, the Bureau submitted a supplemental status report, in which it recommended that Mother’s services be terminated as to all six children, and that the court set all six of their cases for selection of permanent plans under section 366.26.
“Mother did not appear at the six-month status review hearing to contest the Bureau’s recommendation. Consequently it was primarily [appellant’s] contest, as his counsel sought to show that the Bureau had improperly relegated him to ‘alleged’ father status, and that it then failed to give him adequate notice and opportunity to raise that status so that he could obtain reunification services.
“With respect to this issue, the currently assigned case worker testified that she took over the minors’ cases in May 2006, following their dispositional hearing. She said she had received [appellant’s] letter dated September 3, 2006, on September 25, 2006. Because the letter stated that [appellant] expected to be released the following day, the case worker had ‘figured it was too late’ to comply with his request to be interviewed before his release. She testified that this letter was her first notice that [appellant] ‘was even interested in getting the kids.’ Thus, when she prepared the initial report for the six-month status review hearing, she had not been aware of [appellant’s] earlier letters. She said the letters [appellant] wrote in March 2006 had gone to the previously assigned case worker. The case worker testified finally that none of the minors had mentioned [appellant] during her monthly visits with them.
“[Appellant] testified that he had signed the waiver of his appearance on March 23, 2006, under the mistaken belief that the removal order was for a hearing scheduled that same day—when he felt too ill to travel. He said he had not understood that the removal order was for the hearing scheduled for April 11, 2006. [Appellant] admitted he had written no letters between those he sent in March 2006 and the one he sent in September 2006, but claimed he had made a number of efforts to reach both the former and currently assigned case workers by telephone. He said that, because they were collect calls from the jail, and because he had always reached recordings, he had been unable to leave any messages. He said he had similarly been unable to reach the public defender’s office by telephone.
“At the court’s request, [appellant] read that portion of the removal order which specified that it pertained to the April 11 hearing. [Appellant] indicated he had not noticed that portion of the order at the time he signed the waiver of his appearance. The court also questioned [appellant] concerning his criminal and drug history, and previous prison terms, and [appellant] admitted to several periods of incarceration for ‘petty theft’ or second degree burglary. During cross examination, [appellant] stated he was currently unemployed and was staying with an aunt and cousin. He admitted he had made no effort to call or contact his older children since his incarceration in December 2005. He also admitted family members had kept him notified of the dependency proceedings during his incarceration.
“At the conclusion of this testimony, [appellant’s] counsel sought, in effect, orders continuing the minors’ cases to the 12-month permanency hearing, in order to give [appellant] an opportunity to participate in reunification services and gain their custody. He argued the Bureau had unfairly categorized [appellant] as an ‘alleged’ rather than a ‘presumed’ father, given the information available to the Bureau during the initial stages of the proceedings. He also argued the Bureau had withheld from the court, at the dispositional hearing on April 11, the content of the letters [appellant] had written in March 2006, that is, his claim of paternity and his interest in doing whatever was needed to obtain custody of the minors. He contended the court was partially to blame, because it had evidently failed to conduct any inquiry into paternity at the detention hearing. (See § 316.2, subd. (a).) He urged that [appellant], on the other hand, had acted diligently under the circumstances of his incarceration to assert paternity and request custody.
“The juvenile court essentially rejected these arguments, noting in particular that [appellant’s] testimony concerning his efforts to contact the Bureau by telephone lacked credibility. The court further concluded that, from the evidence presented, it ‘[could not] conclude’ there was a substantial probability that the minors could be safely returned to [appellant’s] custody if their cases were continued to the 12-month permanency hearing. It thus adopted the Bureau’s recommendations and set all six cases for hearing under section 366.26.”
Appellant filed a writ petition challenging the setting of the section 366.26 hearing. His claims centered on the argument that the Bureau “unreasonably classified him as an ‘alleged’ father at the early stages of the proceedings.” As a result, he claimed he was unfairly deprived “of reunification services that he was entitled to receive prior to the six-month status review hearing.” He contended that “it was error for the court to find that the Bureau had offered or provided him with reasonable services.”
On March 5, 2007, we filed our opinion denying appellant’s writ petition on the merits. In light of the fact that appellant had waived his right to appear at the April 11, 2006 hearing, and that the court had rejected his testimony “both with regard to his excuse for signing the waiver and his subsequent efforts to contact the Bureau and the public defender’s office to further his assertion of paternity and his interest in obtaining custody,” we concluded that the court did not err in finding that he was “not improperly denied reunification services before October 12, 2006, the date when the court raised his status to a ‘presumed father.’ ”
A hearing under section 366.26 was held on May 14, 2007. The court terminated appellant’s and Mother’s parental rights and found by clear and convincing evidence that Theodore was likely to be adopted. This appeal followed.
DISCUSSION
Appellant contends that the juvenile court erred in failing to apply the parental and sibling relationship exceptions to adoptability. His contentions center primarily on the juvenile court’s failure to appoint counsel to represent him prior to October 12, 2006.
I. The Beneficial Parental Relationship Exception to Adoption
Appellant did not visit Theodore until after he appeared at the October 12, 2006 hearing. From the record, it appears he visited Theodore one time only. Relying on a chain of causation stemming from the juvenile court’s allegedly unlawful denial of appointed counsel, he claims that the court erred in concluding that he had not developed a bond with his son sufficient to forestall the termination of his parental rights. We disagree.
A. Standard of Review
The juvenile court’s ruling declining to find an exception to termination of parental rights must be affirmed if it is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827; In re Autumn H. (1994) 27 Cal.App.4th 567, 576; cf. In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1342 [applying abuse of discretion standard].) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H., supra, at p. 576.)
B. Section 366.26, subdivision (c)(1)(A)
When the section 366.26 hearing was held on May 17, 2007, the court had four options. In order of preference the options were: (1) to terminate parental rights and order that the child be placed for adoption (the choice the court made here); (2) to identify adoption as the permanent placement goal and require efforts to locate an appropriate adoptive family; (3) to appoint a legal guardian; or (4) to order long-term foster care. (§ 366.26, subd. (b).)
Section 366.26 was amended effective January 1, 2008. (Stats. 2007, ch. 565, § 4.) In this opinion, we rely on the version of this section that was effective in 2007.
“Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H., supra, 27 Cal.App.4th 567, 573.) If the court finds a child cannot be returned to his parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination would be detrimental to the child under one of five specific exceptions. (§ 366.26, subd. (c)(1).) The section 366.26, subdivision (c)(1)(A) exception applies if “termination of parental rights would be detrimental to the child because ‘[t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.’ ” (In re Derek W., supra, 73 Cal.App.4th 823, 826.) The parent bears the burden of proving the exception applies. (Ibid.)
“[A] parent may not claim entitlement to the exception provided by [section 366.26,] subdivision (c)(1)(A) simply by demonstrating some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1349.) The benefit to the child must promote “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.” (In re Autumn H., supra, 27 Cal.App.4th 567, 575.)
Appellant concedes, as he must, that he did not maintain regular visitation with Theodore. He claims, however, that his right to visitation was not raised at a meaningful stage in the proceedings, a result he attributes solely to the juvenile court’s failure to appoint counsel prior to October 12, 2006. Relying on the court’s alleged error, he asserts his failure to participate in regular visits should not have been held against him and the court should not have selected adoption as the permanent plan.
C. Appellant Has Forfeited His Objection to the Court’s Failure to Appoint Counsel
The Bureau contends that appellant’s claim is barred by the doctrine of res judicata because the issue of his entitlement to presumed father status was decided in our opinion on the prior writ. We decline to examine this case under the doctrine of res judicata, and instead conclude that appellant forfeited his claim regarding his right to appointed counsel by failing to raise it in advance of the section 366.26 hearing. (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.) Appellant, in his concurrent petition for writ of habeas corpus, appears to largely concede this point.
“Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘ “intentional relinquishment or abandonment of a known right.” ’ [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) “Dependency matters are not exempt from this rule.” (Id. at p. 1293.)
Section 366.26, subdivision (l), provides: “(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] . . . [¶] (2) Failure to file a petition for extraordinary writ review within the period specified by rule . . . shall preclude subsequent review by appeal of the findings and orders made pursuant to this section.” (Italics added.) While appellant did file a writ petition, he did not raise the issue of the court’s failure to appoint counsel.
In appellant’s earlier writ petition, he contended that he was unfairly denied presumed father status during the early stages of the proceedings. Nothing in the record suggests that he could not also have raised the issue of the court’s failure to appoint counsel. Appellant was presumably aware that counsel had not been appointed until October 12, 2006. Thus, under section 366.26, subdivision (l), when, as here, a parent fails to preserve the right to raise an issue by filing a timely petition for extraordinary writ review, that issue may not be appealed in conjunction with the appeal of an order made pursuant to section 366.26. We, therefore, conclude that appellant forfeited his right to appeal the court’s failure to appoint counsel. (See In re Janee J. (1999) 74 Cal.App.4th 198, 206; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.)
The rationale for applying forfeiture in this case is compelling: “In the last analysis, at some point the interests of a parent, and therefore the correction of purported error which operates to the detriment of the parent, must give way to the interest of the child in a stable, secure, long-term, continuous home environment. Under California’s dependency statutes, this moment arrives when the juvenile court terminates reunification and sets a permanency planning hearing. [Citations.] At this juncture, the balance of the competing interests is tipped well towards the child; it is presumed the interests of the child and the natural parents have diverged and are inconsistent. [Citations.] Therefore, if a parent, for whatever reason, has failed to timely and appropriately raise a claim about the existence or quality of counsel received at a proceeding antedating the .26 hearing, we will apply the waiver rule to foreclose the parent from raising such an objection on appeal from the termination order.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1160.)
D. Appellant’s Claim Lacks Merit
In any event, this appeal would fail even if we were to decide it on the merits. Citing to In re David D. (1994) 28 Cal.App.4th 941, 956, appellant claims he should have been afforded the opportunity to establish regular visitation. His reliance on that case is misplaced. In David D., the appellate court determined that the juvenile court had erred in failing to apply the parental relationship exception to adoption where “the referee steadfastly ignored the best interests of these minors, impeding both reunification and continued parental contact, by the initial suspension of visitation, by ignoring the recommendations of the court-appointed expert regarding the minors’ bond with their mother, by terminating reunification services, and by unreasonably limiting visitation after the termination of reunification services.” (Id. at p. 955.)
In the present case, the court did not actively interfere with appellant’s right to visitation. The court simply did not order visitation because appellant was an “alleged father” only and, as such, had no right to visitation. “Alleged fathers have fewer rights than presumed fathers and are not entitled to custody, reunification services, or visitation.” (In re O. S. (2002) 102 Cal.App.4th 1402, 1410.) Under the circumstances, the court’s failure to order visitation was not unreasonable.
1. The Right to Appointed Counsel
Appellant alleges that had counsel been appointed earlier, he would have been granted presumed father status in March 2006 instead of October 2006. He claims an attorney would have introduced the letters he sent to the social workers to prove that he did not intentionally waive his right to appear at the April 11, 2006 hearing. Thus, appellant continues, the failure to appoint counsel led to the court’s failure to order that he be provided with reunification services.
Section 317, provides in part: “(a) When it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section. [¶] (b) When it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.” (Italics added.)
In In re Ebony W. (1996) 47 Cal.App.4th 1643, the court held that subdivisions (a) and (b) of section 317 must be read together. When so read, the statute requires the court to appoint counsel only if the indigent parent manifests some desire for representation by counsel. (In re Ebony W., supra, at p. 1647.) When an indigent parent does not appear at a proceeding and does not otherwise communicate a desire for representation, the court is under no duty to appoint counsel to represent that parent. (Id. at p. 1648; see also Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1064–1066 [purpose of § 317 is to provide counsel only to those indigent parents who desire representation; good cause exists to relieve appointed counsel when the indigent parent does not maintain contact with counsel, fails to keep court advised of current address and does not attend hearings].)
Appellant claims that the Contra Costa Superior Court’s procedure for appointing counsel for indigent parents does not comport with section 317, subdivision (b). He contends that the court’s procedure is defective in that “it does not ensure that indigent incarcerated parents are able to complete a call to the Public Defender’s office.” He contrasts this with San Francisco Superior Court Local Rules, rule 12.12 which provides in part: “If a parent/guardian is financially eligible, counsel will be appointed to represent such person. No appointment of counsel will be made where parent/guardian does not appear, unless the parent is incarcerated or hospitalized or the Court, in its discretion, deems it appropriate to appoint counsel.” (Italics added.) Inferring that counsel would have been appointed had this proceeding occurred in San Francisco County instead of Contra Costa County, appellant asserts that his “constitutional and statutorily mandated rights should not be dependent on the county in which his child resides.”
We take judicial notice of this rule on our own motion. (Evid. Code, §§ 452, subd. (a), 459.)
Appellant’s assertion is not well-founded. Rule 12.12 does not mandate the appointment of counsel in every case where a parent is incarcerated. It merely creates an exception to the general rule that counsel will not be appointed in cases where a parent fails to appear. Moreover, in this case appellant did not simply fail to appear. Notwithstanding his defense of mistake, the fact remains that he executed a voluntary waiver of his right to appear at the April 11, 2006 hearing. Operating under the reasonable assumption that appellant was not interested in participating in the proceedings, it is unclear to us for what purpose the court would have been inclined to appoint counsel.
The court here satisfied its obligation to appellant by providing him with prompt, informative notice. “An alleged father in dependency proceedings is entitled to notice, because notice provides him an opportunity to appear and assert a position and attempt to change his paternity status. [Citations.] Notice affords him a reasonable time to make his appearance.” (In re O. S., supra, 102 Cal.App.4th 1402, 1408.) Appellant received notice of the proceedings on March 15, 2006, a mere 16 days after Theodore’s birth. The notice included the advisement of his right to have counsel appointed to represent him. Yet, insofar as the court was aware, he did nothing to invoke his right to counsel until October 12, 2006, some seven months later. When appellant finally expressed an interest in appearing in the proceedings, the court acted promptly to appoint counsel to represent him.
In our earlier opinion, we sustained the court’s finding that appellant’s claims regarding his unsuccessful phone calls to the public defender’s office were not credible. The claim that he was deprived of counsel prior to October 12, 2006, is meritless given the fact he did not assert his right to obtain counsel at any other time during the proceedings. (In re Ebony W., supra, 47 Cal.App.4th 1643, 1646–1648.)
2. Appellant Fails to Demonstrate Prejudicial Error
Precisely because the right to counsel in a dependency proceeding is purely statutory, the state constitutional standard of harmless error applies. (Cal. Const., art. VI, § 13; In re Angel W. (2001) 93 Cal.App.4th 1074, 1085; In re Justin L. (1987) 188 Cal.App.3d 1068, 1077.) “Thus the parent must demonstrate that it is ‘reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ ” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) “To determine whether a parent had a due process right to representation we look to see whether the presence of counsel would have made a ‘determinative difference’ in the outcome of the proceeding and if the absence of counsel rendered the proceedings fundamentally unfair.” (In re Claudia S. (2005) 131 Cal.App.4th 236, 251.)
Appellant does not demonstrate that the appointment of counsel at an earlier stage would have made any difference in the outcome of the proceedings. In our prior opinion, we concluded “there was substantial evidence to support the court’s express, negative finding, that there was not a substantial probability that the children could be returned to [appellant’s] custody if the cases were continued to the 12-month permanency hearing so that he could receive services and engage in a court-ordered reunification plan.”
Our conclusion appears to have been justified. Documents in the record indicate that both parents were incarcerated when the section 366.26 hearing was conducted on May 14, 2007. Thus, it is simply inconceivable that appellant could have regained custody of any of his children even if the court had appointed counsel earlier and affirmed appellant’s right to be deemed a presumed father. We conclude that the trial court did not err by failing to appoint counsel for appellant on April 11, 2006. Even if it did err, however, the error was harmless.
As to appellant’s claim that the notice he received in March 2006 was defective because he was unable to follow the notice’s instructions due to his incarceration, we observe that neither the Bureau nor the court runs the county jail. A parent’s incarceration does not entitle him to privileges over a law-abiding parent by absolving the former of his failure to properly read a notice to appear, or to take appropriate measures to obtain counsel, despite any difficulties in making telephone calls while confined. While our conclusion on this point might be different if appellant had been denied all telephone privileges, he was not, and, as noted above, the court found appellant’s testimony regarding his inability to reach the public defender’s office by telephone to be lacking in credibility.
III. Failure to Establish Sibling Relationship exception under Section 366.26, subdivision (c)(1)(E)
Appellant claims he was unfairly deprived of the right to assert the sibling relationship under section 366.26, subdivision (c)(1)(E), because the Bureau failed to place Theodore with his siblings and then did not take action to further his relationship with his siblings. We disagree.
The exception to termination of parental rights under section 366.26, subdivision (c)(1)(E) applies when adoption would result in a “substantial interference with a child’s sibling relationship.” (§ 366.26, subd. (c)(1)(E).) The purpose of this exception is to preserve long-standing sibling relationships that serve as “anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) “The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) Factors for the court to consider include the nature and extent of the sibling relationship, whether the siblings were raised in the same home, whether they share a close bond, and whether continued contact is in the child’s best interests as compared to the benefits of adoption. (§ 366.26, subd. (c)(1)(E).) The court considers the best interests of the adoptive child, not the best interests of other siblings. (In re Daniel H., supra, at p. 813.)
Here, Theodore had almost no relationship with his siblings as he was placed in his own foster home shortly after his birth. Thus, there was no reason to suspect that adoption would substantially interfere with any existing sibling relationship. Moreover, Theodore had resided with his foster-adoptive parents for virtually his entire life and the social worker’s report indicated that he had formed a strong attachment to this family.
From the social worker’s reports, it appears that the older siblings had limited visitation with Theodore prior to the section 366.26 hearing.
As to appellant’s argument that the Bureau should be estopped from asserting the absence of a sibling relationship because it failed to place him with his siblings, instead placing him in a non-relative foster home, appellant fails to direct us to any evidence suggesting that there were any appropriate relative placements available for Theodore, a newborn baby that had been exposed to illegal drugs while in utero. The court did not abuse its discretion in finding that the sibling relationship exception did not apply.
IV. Ineffective Assistance of Counsel
In a separate petition for writ of habeas corpus, appellant contends that he was denied effective assistance of counsel because his appointed counsel did not raise the issue of the court’s failure to appoint counsel at the outset of the proceedings. He asserts that counsel was ineffective because he failed “to file a petition seeking review of the court’s failure to appoint counsel previously.” He claims that he may now bring this claim via a writ of habeas corpus notwithstanding the holding of In re Meranda P., supra, 56 Cal.App.4th 1143, 1161. We address this issue first.
Section 366.26, subdivision (i)(1), provides: “Any order of the court permanently terminating parental rights under this section shall be conclusive and binding upon the child, upon the parent or parents and upon all other persons who have been served with citation by publication or otherwise as provided in this chapter. After making the order, the juvenile court shall have no power to set aside, change, or modify it, . . . but nothing in this section shall be construed to limit the right to appeal the order.”
“This statute forbids alteration or revocation of an order terminating parental rights except by means of a direct appeal from the order. [Citation.] . . . Issuance of a writ directing the trial court to vacate the termination order would nullify the Legislature’s unambiguous withdrawal of jurisdiction from the court to ‘set aside, change, or modify’ such an order except by means of a direct appeal from that order.” (In re Meranda P., supra, 56 Cal.App.4th 1143, 1161.) We decline appellant’s invitation to hold that Meranda P. was wrongly decided.
While we believe appellant’s writ petition is inappropriate, even if it is properly before us his claim must fail. In 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, 688, 693–694.) Appellant establishes neither of these requirements.
We have already determined that the juvenile court did not err in failing to appoint counsel for appellant prior to his first court appearance. Thus, his counsel’s representation did not fall below prevailing professional norms as the argument he failed to advance lacked merit.
It also is not reasonably probable that appellant would have obtained a more favorable result had the argument been raised. As noted above, appellant’s counsel argued at the October 12, 2006 review hearing that the Bureau had improperly relegated appellant to “alleged” father status, and that it had failed to provide him adequate notice and opportunity to raise his status in order to obtain reunification services. Thus, counsel raised the essence of the same argument that appellant is presently advancing. That argument was unsuccessful. Accordingly, it is exceedingly doubtful that a more favorable result would have been obtained had counsel asserted that the court erred in failing to appoint counsel sooner.
DISPOSITION
The order terminating appellant’s parental rights is affirmed.
By an order filed this same day we deny appellant’s petition for writ of habeas corpus (A119476).
We concur: Marchiano, P. J. Stein, J.