Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDING: Petition for writ of habeas corpus.
APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Super.Ct.No. RIJ111217 Affirmed.
Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, J.
Defendant and Appellant Royce W. (Royce) is the father of six-year-old T.W. Royce appeals from an order terminating his parental rights as to this child pursuant to Welfare and Institutions Code section 366.26.
The family members will hereafter be referred to simply by their first names, not out of any familiarity or disrespect, but to ease the burden on the reader. (See, e.g., In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2.)
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
In his appeal, Royce contends (1) the juvenile court abused its discretion in denying his request for substitute counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) the juvenile court erred in granting his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] (Faretta); (3) the juvenile court abused its discretion in failing to conduct a full and fair evidentiary hearing on his section 388 petition; (4) there was insufficient evidence to sustain the juvenile court’s order terminating his parental rights, as the adoption assessment report was inadequate; (5) the juvenile court erred in finding that the beneficial relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply to render termination of parental rights detrimental to the child; and (6) the juvenile court erred in finding that the sibling relationship exception under former section 366.26, subdivision (c)(1)(E) did not apply. As explained below, we reject these contentions and affirm the judgment.
Effective January 1, 2008, these exceptions were renumbered as section 366.26, subdivision (c)(1)(B)(i) and (v), respectively. In this opinion, we refer to the exceptions by their former numbers for consistency and ease of reading.
In his petition for writ of habeas corpus, Royce claims his counsel was ineffective during the entire dependency proceedings and therefore claims certain orders of the juvenile court should be reversed. We reject this contention and deny Royce’s writ of habeas corpus petition.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background, up until the denial of reunification services, is taken from this court’s prior opinion in case No. E039935, which was certified for partial publication in In re Tabitha W. (2006) 143 Cal.App.4th 811, unless otherwise stated.
Royce and Claudia W. were the parents of two sons, J.W. and T.W. In addition, Claudia is the mother and Royce the stepfather of a daughter, Tabitha W. Claudia and Tabitha are Indonesian.
The Riverside County Department of Public Social Services (DPSS) became involved with the family on December 11, 2005, when law enforcement responded to a report that J.W. was missing. J.W., then age 5, was subsequently found deceased in a neighbor’s swimming pool. Police requested DPSS to respond to the family home. A detective reported that J.W. had been diagnosed with Sotos syndrome, which he believed to be a form of gigantism, and had a history of escaping from the home. The child had been developmentally impeded. Blood was found in J.W.’s anus, which could have resulted from the drowning, but anal tearing was also possibly present. The detective also informed the social worker that Tabitha had a large bruise on the left side of her head that the parents could not explain, other than stating that possibly her deceased brother had done it, and for which she had received no medical treatment.
The social worker observed the home to be “unkempt and filthy” with the kitchen covered in dirty dishes and trash, clothing and debris everywhere, and a foul odor. Tabitha’s room smelled of urine and feces. When the social worker attempted to interview T.W. she found that he had minimal communication skills and could not provide any information about his parents, his siblings or himself. He was wearing a diaper and did not appear to have any injuries. The chaplain who responded that morning indicated that T.W. fondled the chaplain’s groin area while he was in the home and that the parents showed no response to the child’s behavior. Claudia, the mother of the children, told the social worker that Tabitha did not speak English, but she offered to translate. The child had been born in Indonesia and had been staying with her family there. While in Indonesia, Tabitha had been involved in a fire that claimed the lives of her two siblings and had also been sexually abused by one of her cousins. Claudia could not explain why Tabitha could not speak English after having been in this country for two years. The child had not been sent to school and reportedly exhibited “odd” behaviors such as going to the bathroom in the middle of the floor and keeping her feces in plastic zipper bags in her room. The mother could not explain this behavior either. Tabitha also had tantrums. The social worker observed that Tabitha had a significant injury to the left side of her head, marks on her neck and bruising in her ear, which the parents could not explain and had not sought treatment for. The child could not be interviewed because she was nonresponsive, as she had reportedly been all day.
Claudia is not a party to this appeal.
Royce, the biological father of J.W. and T.W., stated that he had medical and life insurance for his family through his employer. He identified a clinic where the children were seen for their medical needs. He last saw J.W. at 6:00 a.m. when Royce went to bed. He reported that because of J.W.’s propensity to get out of the house, he had put locks on every window and exit from the house and yard. (The fence enclosing the rear yard was in disrepair, however.) He had observed J.W. and Tabitha fighting, and he believed J.W. hit his sister with a plastic baseball bat. He described J.W. as having been extremely aggressive, with excessive strength because of his disorder, which also made it hard for him to communicate and gave him poor impulse control.
Claudia stayed home with the children. She disciplined the boys by placing them in front of the television with the remote control until they calmed down, then they were allowed to return to what they had been doing. However, because Tabitha had behavioral problems she got spankings on the buttocks. Royce confirmed that they mostly used time outs for discipline but had spanked Tabitha for stealing and biting and had also spanked the boys. The parents and children were calm as the children were removed from the home. As soon as she was out of the house, Tabitha spoke to the social worker in English, asking her to drive by the house with pretty lights and telling her that J.W. had hit her with a baseball bat, but that J.W. was dead, “like rubber.” At the police station Tabitha began to cry and mumbled rapidly about the day’s events, reporting that J.W. had hurt her ear. She stated that he got out of their bedroom window and out of the fence. Tabitha and T.W. were observed to be aggressive with each other in play and were “silly” when it was time to use the restroom. They were placed together in a foster home.
DPSS e-mailed photographs of Tabitha’s injury to a doctor, who requested that she be brought in for assessment immediately. At the emergency room, Tabitha refused to get out of the car, and medical staff had to remove her. She was hysterical and punched two adults. She was speaking in full English sentences. It was determined that she would be admitted to the hospital, and she was given a sedative.
A medical report dated December 12, 2005, indicated that Tabitha, despite Claudia’s report that the child did not speak English, had spoken fluently while at the hospital. She was found to have a large area on the left side of her skull with red, blue, and yellow bruising. The left ear was also bruised, as were the back of the head near the hairline, the area behind the right ear, the left side of the neck extending toward the chest, and the left upper arm. Her left skull was possibly fractured. Her hair was thin and of multiple lengths. She had several teeth with cavities and a healing red area at the upper frenulum. This was later described as a tear of the tissue under the upper lip next to the gum line, which would have bled profusely. She had several circular scars as well as a four centimeter linear “train track” scar on her back. She also had circular scars on her right forearm and left thigh. The doctor concluded that the scalp bruise was not consistent with having been hit with a plastic bat. There was an impact site on the left ear and skull. Some of her wounds were consistent with severe hair pulling, which might also have caused the neck bruising. However, that bruise was also consistent with strangling or another impact. The bruising on the arm could also have been inflicted. The circular scars were consistent with bite marks, and the linear scar on her back was consistent with an inflicted injury. The doctor opined that Tabitha had been severely traumatized, psychologically and physically, such that “extensive and comprehensive counseling” was strongly recommended, and that “children left in the same environment where the abuse occurred are at risk of further injury including death.” X-rays revealed that Tabitha had a healing midshaft fracture in her right arm, which would have been very painful such that Tabitha would not have used her arm. The doctor also opined that the burn scar patterns, which were being reviewed, may not be consistent with burns obtained in a house fire and may also have been inflicted.
DPSS filed a petition under section 300 on December 13, 2005, as to Tabitha, then age 7, and her half brother, T.W., then age 4. DPSS alleged that Tabitha came under section 300, subdivisions (a), (b), (f), and (g) and that T.W. came under section 300, subdivisions (b), (f), and (j).
On December 14, 2005, the juvenile court found that a prima facie showing had been made that the children came within section 300, subdivisions (a), (b), (f), (g), and (j) and ordered that they remain removed from the home pending a jurisdictional hearing, which was set for January 9, 2006. At that time Royce’s attorney reported that Royce was not interested in visiting or reunifying with Tabitha. Reunification services were nevertheless ordered pending that hearing; supervised visitation was to be as directed by DPSS as to T.W., but visitation was suspended as to Tabitha.
An addendum report filed by DPSS on January 5, 2006, requested a four-week continuance to allow for further evaluation and assessment since the case had been delayed due to cooperation with a law enforcement investigation. The juvenile court granted the continuance and set the jurisdictional hearing for February 1, 2006. The parents requested visitation, and supervised visitation with both children was ordered as directed by DPSS.
The jurisdictional/dispositional report was filed on January 30, 2006. DPSS recommended that services be denied to both parents pursuant to section 361.5 subdivisions (b)(4) and (6).
In that report, DPSS reported that Tabitha had been nonverbal during a Riverside Child Assessment Team interview as well as with the social worker and refused to make eye contact. The exception was that, when asked about her parents, she “blurted out a loud ‘No’ and exited the [interview] room.” T.W. was unable to provide any pertinent information regarding the investigation.
Claudia had been cooperative during her interview. She reported that Tabitha was not in school because of her behavior problems, consisting of urinating on her bed and pillows, in her “little kitty” bag, and on her brothers’ stuffed toys; keeping her feces in plastic zipper bags and calling it chocolate; and keeping dirty food dishes hidden in the futon in her room. Tabitha told Claudia that her grandmother told her how to do these things. Claudia did not know about the bruise on Tabitha’s head because the child only came out of her room when everyone was asleep, including to eat. She bathed and dressed herself and always wore long sleeves and long pants. Claudia claimed that she never saw the child and asked then how she would notice the bruise.
About five months prior to J.W.’s death, Tabitha told Claudia that she had been sexually abused, but Claudia was not sure it had occurred because the child “always changes the story.” Claudia did not know how to get help for Tabitha’s behavioral problems or her emotional trauma from having been a rape victim and having been in a house fire where her two brothers perished. She was told by family and friends to try putting the child in a foster home or in a mental institution. They did not have much money, and she did not know the American way of doing things. Claudia admitted leaving Tabitha in the car when she took J.W. and T.W. to the doctor, and despite the doctor’s recommendation that she call the number on the insurance card regarding getting help for Tabitha, she did not because she was unaware that Tabitha could speak English. Claudia repeated that she did not send Tabitha to school because of her behavioral problems. She also said that the children did not go to school because she did not know how to use the bus, her husband was too tired to take them, and they didn’t have a babysitter.
Claudia stated that when the social worker was there the house was dirty because she had not yet gotten around to doing the cleaning and housework on her schedule and because the sink was “messed up” because she had put rice in it. Royce told her to take everything out of the sink, and he would fix it the next day.
Regarding J.W.’s death, Claudia stated that Royce came home at 2:00 a.m., and she was asleep in the living room. Royce played with T.W. and J.W., tried to fix the sink, and watched a movie. He then woke Claudia up so he could go to sleep. At 6:30 a.m. J.W. said “mommy go night-night” so she lay down with him, but he did not want to sleep. At 7:50 a.m., T. W. woke her and told her J.W. was outside. She thought everything was locked and began to look for J.W. T.W. pointed to Tabitha’s room, where the window was open. Tabitha told her J.W. was “out.” Claudia searched the neighborhood and could not find J.W., so she came home and woke Royce, who also could not find J.W. and told her to call 911. T.W. then told her that Tabitha took J.W. out and told him to go back home.
Royce was also cooperative with DPSS during his interview. He too claimed not to have seen Tabitha’s head injury but stated that Claudia was aware of it and told him, after J.W.’s death, that she had seen J.W. hit Tabitha with a wash wand several times, but there was no bruising. Royce offered that when he first saw the bruising he indicated to the police that it appeared to have the same pattern as the wash wand, which was against the wall in the back yard. He stated that he did not see the bruising and suggested that maybe it wasn’t there when he last saw her since bruising doesn’t happen right away. He also suggested that there had been no bruising on the back of her neck so that might have happened when she struggled with hospital staff. Royce had seen circular scars on Tabitha’s back once but believed them to be from the fire. He also explained that Tabitha covered herself up, maybe because of her scars from the fire, and stated that he “tended to steer clear of Tabitha,” more so once Claudia told him of the sexual abuse. He “really didn’t want to have anything to do with her” so as not to further traumatize her. He also reported that Tabitha would urinate and defecate on the floor. Claudia told him that Tabitha said she could not wake up at night so they put her on a pallet by the bathroom door but she would still go on the floor. When Claudia made her clean up after herself she shoved her feces down the sink. He again stated that he “did not want to push the issue” with Tabitha who shied away from him, so he did not have much contact with her. The children did not go to school because T.W. was not old enough and Tabitha had behavioral issues. T.W. was very talkative with Royce but quiet around others. Royce called his insurance regarding getting help for Tabitha, but he did not know that she could speak English, as she never did at home. As there was no Indonesian therapist to whom they could send her, they were contemplating sending her to a boarding school in Indonesia so she could get help. They were not getting any good suggestions and did not know where to go for help with her. He stated that the foul odor in the house was from Tabitha urinating and defecating everywhere. The dishes could not be done because Claudia had plugged up the sink with a pot of rice. He told her to empty everything out from below the sink so he could repair it the next day. He tried that night when he got home but was unable to and then went to watch a movie. Both boys were up with him through the night. Claudia had also told him that the children had broken a board in the fence, but he couldn’t repair it because he had to go to work.
Regarding J.W.’s death, he stated that he had placed extra locks in the house; had they caged the child to keep him safe, they would have been in trouble. He did not know how Tabitha had gotten the lock off of her window, as he had tightened it down so tightly with pliers that he could not get it off and had placed a large dresser in front of it, which the children could not move. He believed that Tabitha had gotten the lock off because T.W. told Claudia that Tabitha got the window open and helped J.W. out. He and Claudia believe that Tabitha took J.W. outside and came back in. Two neighbors told them that they had seen J.W. at about the same time T.W. woke Claudia to tell her J.W. was gone.
Tabitha was placed in a psychiatric hospital. While initially uncommunicative and displaying selective muteism and fits of rage, she had begun to open up to certain staff. In her counseling Tabitha disclosed that both she and her brother had been spanked with a belt, that her head had been held on the floor, that her hair was pulled, and that her mother had bitten her. She showed no signs of the reported toileting issues and used English in an age-appropriate manner. She had poor eye contact and sometimes reverted to muteism; she had tantrums and threw things or otherwise acted out but showed improvement over time and with interaction such that she was discharged after 10 days. While she missed her parents, she did not want to return to her family.
An odontologist concluded that the bites Tabitha sustained were inflicted within weeks or days of the pictures being taken and were consistent with an adult bite pattern. Tabitha had not been seen by a doctor or dentist since coming to the United States, some 16 months prior to removal from the home. Some of her developmental skills were delayed, though that may be the result of her mental and emotional issues. Tabitha had been placed in school and was excited and adjusting well, talking about her friends and experiences. No behavior issues had yet been noted by the school. She continued to have nightmares and difficulty sleeping, appeared fearful of adults, and had difficulty forming relationships. She was diagnosed with posttraumatic stress and major depression.
T.W. had last been seen by a doctor in September 2005 and was current on his vaccinations. However, he was also developmentally delayed, as he was not yet toilet trained, had a limited vocabulary, and had limited comprehension skills. He had not displayed any mental or emotional issues.
DPSS concluded that it would be detrimental to the children to leave them in the care of their parents as their inability to ensure the safety and well-being of the children was demonstrated by J.W.’s death and Tabitha’s condition. It recommended that the parents be denied reunification services because of J.W.’s death and Tabitha’s condition. It also recommended closely supervised visitation once per month.
The parents denied the allegations and attempted to provide an explanation for the behaviors that DPSS indicated were inappropriate on their part. They also asserted that some of the information provided by DPSS was erroneous and had been the result of language barriers. They insisted that Tabitha’s injuries were either old, having been inflicted in Indonesia, or had been inflicted by her brother J.W. with a wash wand, not a baseball bat, and that she had never spoken English to them. They asserted that they had done everything that they could to prevent J.W.’s escape from the house and had not been negligent in his death.
At the February 1, 2006, hearing, counsel for Royce argued that the parents had taken Tabitha to a physician regarding her toileting issues, but the doctor refused to see her because the problem seemed to be a psychological issue. Finding a therapist was difficult because of the language issue and they were trying to send her back to Indonesia. Tabitha had been told bad things about her mother by her family in Indonesia and did not interact with her mother or behave as part of the family when she arrived here, including failing to communicate her needs and wants. At that time she was five years old. J.W. had received services from the State of California through Inland Regional Center until he was three years old, so the parents claimed they had been caring for his needs. While making additional findings, the juvenile court also set a hearing under section 366.26 to be heard on June 1, 2006.
At a hearing on February 1, 2006, the juvenile court found the allegations true that the children came within section 300, subdivisions (a), (b), (f), and (g) and adjudged them dependents of the court. It made findings under section 361, subdivisions (a) and (c)(1) and (3). It also ordered that no services would be provided to either parent under section 361.5, subdivision (b)(4) and (6) and ordered adoption as the permanency plan. The juvenile court further found that visitation between the children and their parents was detrimental to their well-being and suspended the visitation order. It then set a hearing under section 366.26 to be heard on June 1, 2006.
Royce and Claudia subsequently sought review of the juvenile court’s rulings by appealing the court’s decision to deny them visitation with Tabitha and T.W. They also each filed a petition for writ of mandate to overturn certain orders of the juvenile court. On October 3, 2006, in a decision certified for partial publication, this court dismissed the appeals as improperly taken from an order made at a hearing in which a section 366.26 hearing was set. (In re Tabitha W., supra, 143 Cal.App.4th at p. 813.) We also denied the petitions for writ of mandate, finding that the juvenile court had made required findings, that there was substantial evidence to support the juvenile court’s findings, and that there was no abuse of discretion. (Ibid.)
DPSS filed a section 366.26 report on May 16, 2006, noting Tabitha and T.W. were developing well in their respective foster homes. Tabitha had established a close bond with her foster parents and their children and had expressed her needs and wishes to them. She enjoyed family outings, bike riding, and playing with dolls. The foster family had been working with Tabitha on improving her social skills and interactions in the home. Tabitha was in the third grade and enjoyed reading and math. She completed her daily homework with little assistance. T.W. was a friendly boy, who said many words and did not appear to be shy. He did not receive any psychological assistance; the only concerns the foster parents noted were with T.W.’s communication and comprehension. The children had done very well in their foster homes and had all their medical, emotional, and physical needs met. The prospective adoptive parents had been visiting with the children and had expressed a desire to adopt both children and to provide them with a stable, structured, and loving home. Tabitha enjoyed being with the prospective adoptive parents, and the adoptive parents were willing to allow Tabitha to move into their home at her own pace. T.W., on the other hand, had no apprehensions of being adopted and had already claimed a room in the prospective adoptive parents’ home. T.W. was scheduled to move into the home on May 13, 2006.
On June 21, 2006, the juvenile court granted the children’s counsel’s request that Tabitha not be moved from her current foster placement without a court order. Though Tabitha enjoyed visiting with the prospective adoptive parents and her sibling, she was not emotionally ready for the move and desired to remain with her foster parents.
On September 19, 2006, Royce filed a section 388 petition to modify the court orders in T.W.’s case. The petition alleged that Royce had new evidence to show the allegations in the section 300 petition were untrue, including photographs of Tabitha’s arm in a cast while she lived in Indonesia, video footage from the fire in Indonesia, Royce’s completion of a parenting class, and his efforts to set up therapy for Tabitha. Royce claimed the modifications would be in T.W.’s best interest as Royce had a bond with his son, he had provided care and support for T.W., and they had a parent-child relationship. The juvenile court summarily denied Royce’s petition without an evidentiary hearing on that same day.
On September 22, 2006, DPSS noted that Tabitha did not want to be adopted. She felt comfortable with her foster mother and wanted to stay with her as long as possible. DPSS therefore changed its recommendation for Tabitha from adoption to a permanent planned living arrangement. T.W., on the other hand, was doing “very well” in his adoptive home and appeared bonded to his adoptive parents.
At a hearing on October 2, 2006, the parents were not present in court. Royce had been present earlier, but his trial counsel told him to leave and assured him that she would request visitation with T.W. The court denied Royce’s request for visitation.
On March 14, 2007, Royce filed another section 388 petition in propria persona along with numerous supporting documents. The petition erroneously alleged that his parental rights to his son were terminated on February 1, 2006. The petition also alleged that Royce had received ineffective assistance of counsel, and his due process and equal protection rights had been violated. The petition requested that the case be dismissed, reunification services be provided, or a new trial be conducted. Royce claimed he was a good father, T.W. was a great son, and there was no reason why T.W. should not be returned to him. Royce wanted T.W. to live with Claudia’s aunt until Royce got his old job back and was able to support his son.
At a section 366.26 hearing on March 15, 2007, the parents were both present in court. Royce requested a Marsden hearing, claiming his attorney was ineffective for failing to conduct an investigation or present evidence at his trial to rebut the allegations against him. Following Royce’s and his counsel’s arguments, the court found that Royce had been provided with competent representation and that there was no conflict of interest and denied Royce’s request for new counsel. However, at Royce’s insistence, the court permitted Royce to represent himself and relieved his trial counsel. The hearing was subsequently continued to obtain an Indonesian interpreter for Claudia.
On March 19, 2007, Claudia filed a section 388 petition along with the same supporting documents as Royce’s petition. She erroneously claimed that parental rights as to Tabitha and T.W. had been terminated on February 2, 2006.
The continued contested section 366.26 hearing and the hearing on the section 388 petitions were held on March 22, 2007. Royce appeared in propria persona. The court summarily denied the parents’ section 388 petitions.
The court then proceeded with the contested section 366.26 hearing and heard testimony from Claudia and Royce as well as argument from counsel. The court noted that it had read the reports submitted by DPSS as well as this court’s opinion in the parents’ prior appeals. The court found that T.W. was likely to be adopted and terminated parental rights as to him. As to Tabitha, the court ordered a permanent planned living arrangement and noted that sibling relationships had been maintained under section 16002.
On March 28, 2007, Royce filed his notice of appeal. About seven months later, following submission of appellate briefs, Royce filed a petition for writ of habeas corpus, claiming he had received ineffective assistance of counsel.
II
DISCUSSION
A. Denial of Marsden Motion
Royce argues the juvenile court abused its discretion in denying his Marsden request for new counsel, contending he had demonstrated that his trial counsel provided inadequate performance and that there were irreconcilable conflicts in their relationship, rendering counsel’s performance ineffective.
The juvenile court addressed both Royce’s Marsden motion and Faretta motion at the hearing on March 15, 2007. With respect to the Marsden motion, Royce complained that counsel had failed to conduct any investigation regarding the allegations against him, had failed to cross-examine the witnesses upon whose statements DPSS had relied to support the section 300 petitions, had failed to present exculpatory evidence showing the allegations were false, had failed to present evidence showing that he was not negligent in J.W.’s death, and had failed to consult him prior to the jurisdictional/dispositional hearing. The court followed up with questions to Royce about his concerns.
Counsel responded to Royce’s complaints, noting Royce’s anger and agreeing with his feelings in the outcome of the case. She stated that she had spent time with Royce reviewing the case and explaining everything to him; that she had returned Royce’s phone calls and spoken to him about the case at length; that she had met Royce at court every single hearing; that she had responded to Royce’s letters in writing; that she had submitted Royce’s written responses to the social worker’s reports and allegations to the court; that she had explained the ramifications of his testifying with a pending criminal case; that she had informed him that since he had actually responded to the social worker’s reports in writing, she would argue the case and submit; and that he was understandably upset that he lost at the trial court and appellate levels. Counsel further asserted that she believed there had been a breakdown in the relationship and that Royce had told her that he was going to be asking the court for self-representation.
Royce thereafter responded to counsel’s statements, claiming that counsel only spoke to him briefly and that he had no time to prepare a defense or consult with counsel or argue any defense with her; he admitted that counsel had responded to his letters. Royce also asserted that he had not received a fair trial, noting the allegedly erroneous burden of proof and the evidence in the case. Royce further noted that he wanted to represent himself, despite everyone advising him against it.
The court denied Royce’s Marsden motion, noting though there was a conflict, it was not “so great to deny [Royce] effective assistance of counsel.” The court further pointed out that in reviewing the entire file, counsel had “done more than a competent job” and that the court was “very impressed by the representation of all the attorneys on the contract.” The court concluded that Royce had received “very competent representation” although it understood that Royce was “totally unhappy with the results.”
Parents in dependency cases have a statutory right to competent counsel under section 317.5, subdivision (a). In addition, the principles set forth in Marsden, supra, 2 Cal.3d 118, have been held applicable to juvenile dependency cases. (In re Ann S. (1982) 137 Cal.App.3d 148, 150.)
The requirements of Marsden have been explained, in the context of criminal proceedings, by our Supreme Court: “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].” (People v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) The trial court’s denial of a request for substitution of counsel is reviewed under the abuse of discretion standard. (Crandell, at p. 859; Marsden, supra, 2 Cal.3d at p. 124.)
In the present case, Royce was given the opportunity to express his concerns in detail, and counsel responded in detail. Based on the record, we believe that the juvenile court reasonably found that counsel’s representation had been adequate and that counsel had worked diligently on behalf of Royce. Most of Royce’s complaints involved tactical decisions, which did not justify substitution of counsel. That is because, as our Supreme Court has stated in the context of criminal proceedings, “[a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
In addition, Royce’s dissatisfaction with his counsel was primarily due to his frustration with the outcome of the jurisdictional/dispositional hearing, which likewise did not justify substitute counsel. Though the court was empathetic with Royce’s aggravation concerning the rulings made at the jurisdictional/dispositional hearing, the court did not agree with Royce’s assertion that counsel acted in an incompetent manner, but instead found that counsel behaved in a professional manner. It is apparent that any animosity was on Royce’s part mainly due to the rulings made by the court. There is nothing in the record to suggest that counsel failed to investigate the allegations in the section 300 petition, that counsel failed to communicate with Royce prior to the jurisdictional/dispositional hearing, or that counsel failed to zealously advocate on his behalf. Royce’s anger at DPSS or the ruling made by the court and the resulting discord “does not demonstrate an ‘irreconcilable conflict’ that would require the trial court to replace appointed counsel.” (People v. Michaels (2002) 28 Cal.4th 486, 523.) As the Supreme Court explained, again in the criminal context: “‘“[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 . . . .”’ [Citations.]” (Ibid.)
Here, the court reasonably found that counsel’s representation was adequate and that it was Royce’s unhappiness with the orders made at the jurisdictional/dispositional hearing that was resulting in a conflict between Royce and his counsel. We find there was no abuse of discretion in the juvenile court’s denial of Royce’s motion for substitution of counsel. The court fully explored the basis for the motion and reasonably concluded that substitution was not warranted. (See People v. Crandell, supra, 46 Cal.3d at p. 859.)
B. Granting of Royce’s Motion for Self-Representation
Royce contends the court improperly granted his motion for self-representation. A criminal defendant has a federal constitutional right to represent himself. (Faretta, supra, 422 U.S. 806.) In juvenile dependency cases, there is a statutory, rather than constitutional, right to self-representation. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082; see § 317, subd. (b) [mandating appointment of counsel for indigent parent or guardian “unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section”].) Thus, “[a] parent may waive counsel at any point,” and “the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure.” (Angel W., at pp. 1083-1084.) Because the right is statutory, rather than constitutional, our review of the assertion of the right to self-representation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under that standard, we ascertain whether it appears reasonably probable a result more favorable to Royce would have been obtained had his requests for self-representation been denied.
To comply with section 317, subdivision (b), the court must take a waiver of the right to counsel, but “[t]here is no requirement . . . that the court engage in a full Faretta-type admonition and inquiry . . . .” (In re Angel W., supra,93 Cal.App.4th at p. 1084.) If the juvenile court has made the parent aware of the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case, a waiver of counsel is valid. (In re Brian R. (1991) 2 Cal.App.4th 904, 921.)
Here, the juvenile court did not err in permitting Royce to represent himself. By thoroughly explaining the risks of self-representation, the court ensured that Royce was aware of the dangers and disadvantages of self-representation before accepting his waiver of the right to counsel. The court explained that he needed to understand that he was going to be “held to the same standards of professionalism as a lawyer would be.” In other words, the court told Royce that he would have to follow the law and rules of evidence in order to act as his own attorney. After explaining the ramifications of self-representation, the court asked Royce, “Is it your desire to represent yourself?” Royce replied, “It is.” Moreover, the record reveals that Royce was comfortable speaking with the judge and that he had knowledge of the legal issues involved in the case. In addition, he was advised against proceeding pro se more than once.
Royce relies on People v. Lopez (1977) 71 Cal.App.3d 568 to claim his waiver of his right to counsel was not knowing and intelligent because the court failed to give the advisements articulated in Lopez. In Lopez, the court suggested that the trial court should give warnings that self-representation is almost always unwise and that the defendant may conduct a defense to his own detriment; that the defendant will have to abide by the same rules as lawyers and will get no help from the judge; that the People will be represented by experienced professional counsel who will have the advantage of skill, training, and ability; and that the defendant will have no special library privileges nor a staff of investigators at his beck and call. (Id. at pp. 572-573.) The Lopez court further proposed that the defendant be made aware that he cannot later complain that his self-representation was inadequate. (Id. at p. 574.)
The courts have declined to mandate the Lopez admonitions and have instead held that no particular warnings are required. “[T]he attempt to characterize as error the failure to warn in such exact language begs the question. The real task which confronts the trial court, when a defendant insists on proceeding without counsel, is to do whatever the circumstances then and there require to satisfy itself that the defendant in so doing has made a knowing and intelligent election.” (People v. Barlow (1980) 103 Cal.App.3d 351, 365; see also People v. Mellor (1984) 161 Cal.App.3d 32, 37; People v. Longwith (1981) 125 Cal.App.3d 400, 407; People v. Paradise (1980) 108 Cal.App.3d 364, 366.)
The California Supreme Court has held that “[t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case.” (People v. Bloom (1989) 48 Cal.3d 1194, 1225 [no warning required that self-represented defendant is precluded from asserting ineffective assistance of counsel]; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1048 [“[n]o particular form of words is required”], revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293; People v. Pinholster (1992) 1 Cal.4th 865, 928-929 [“[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required”].) It is true that a trial court’s complete failure to make any inquiry into the defendant’s understanding of the risks and dangers of self-representation constitutes error. (People v. Noriega (1997) 59 Cal.App.4th 311, 319-321; People v. Sohrab (1997) 59 Cal.App.4th 89, 102.) But that is not the case here, as explained above.
Royce also argues that his request for self-representation was made out of frustration and disappointment and was prompted by the denial of his Marsden motion, rather than being unequivocal. Though the record shows that Royce was upset with his trial counsel’s performance and the court’s rulings, there is nothing in the record to suggest that his Faretta motion was not made unequivocally.
In People v. Marshall (1997) 15 Cal.4th 1, the California Supreme Court examined the propriety of a denial of a defendant’s requests for self-representation in the context of criminal proceedings. The high court held that “[a] motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied.” (Id. at p. 23.) On the record before it, the high court found that the defendant’s requests “did not represent an unequivocal and sincere invocation of the right of self-representation, and that they were made for the purpose of delay rather than a sincere effort to secure self-representation.” (Id. at p. 27.)
Unlike the record in Marshall, there is nothing in the record in this case to support a claim that Royce’s request was equivocal, was made on a whim, or was otherwise asserted for the purpose of delay or frustration of the orderly administration of justice. Although a motion for self-representation made in “passing anger or frustration” may be denied, here, Royce’s anger at his trial counsel was not passing. His anger toward his trial counsel and his desire to proceed by self-representation were both present more than a week before the motion for self-representation was made. His motion was not made on a whim. Rather, it was well thought out and planned, and he was determined to represent himself because the outcome of the proceedings was not turning out in his favor. He was upset, but that did not make his Faretta request whimsical or insincere. In fact, Royce’s intention to proceed pro se was evident even before his Marsden request was made and denied. Royce prepared a section 388 petition on March 5, 2007, 10 days before the hearing on his Marsden and Faretta motions on March 15, 2007. He submitted this petition in propria persona because “he no longer ha[d] confidence or trust in his court appointed attorney . . . or any other attorney due to the way his case has been presented to this court so far.” Apparently, Royce wanted to put on his defense by himself. This decision was made more than a week before he made his Marsden motion, it was denied, and he made his Faretta request.
The cases relied by Royce are distinguishable from the present matter. (See Reese v. Nix (8th Cir.1991) 942 F.2d 1276, 1281 [defendant stated “[W]ell I don’t want no counsel then,” but this was deemed a mere impulsive response to the trial court’s denial of a request for new counsel]; Jackson v. Ylst (9th Cir.1990) 921 F.2d 882, 888-889 [a court “properly may deny a request for self-representation that is a ‘momentary caprice or the result of thinking out loud’”].) In Jackson, the defendant stated: “‘I want to fight it in pro per then. Relieve him and I do this myself.’” (Jackson,at p. 889.) The reviewing court considered the record as a whole, including the defendant’s failure to assert the right of self-representation at a later hearing, and independently determined that the defendant’s request for self-representation was an impulsive response to the trial court’s denial of his request for substitute counsel. Examining the question whether the defendant in fact wanted to represent himself, the court stated, “Jackson’s emotional response when disappointed by the trial court’s denial of his motion for substitute counsel did not demonstrate to a reasonable certainty that he in fact wished to represent himself.” (Ibid., italics omitted; see also People v. Marshall, supra, 15 Cal.4th at pp. 21-22.)
In this case, however, as explained above, Royce did not make his request for self-representation as a result of the denial of his Marsden request. Royce made more than one reference to his right to, and his wish for, self-representation, about two weeks prior to his request. In a letter from his trial counsel, she informed Royce, “[Y]ou have a right to a Marsden hearing and if granted, the court would appoint another attorney to represent you. You could also hire a private attorney at your expense. Another option is that you could proceed by representing yourself.” Besides conveying the options available to Royce, his trial counsel even warned him that self-representation was not the recommendable course of action. Nevertheless, in a reply letter, Royce’s very first sentence to his trial counsel stated, “I want to proceed pro per.” He even went on to explain, “I . . . understand your advice is for me not to proceed pro per and your point is so noted. With that said I wish to proceed pro per anyway.” (Italics added.) This reply letter is dated March 5, 2007, is 10 days before the Marsden hearing. It is clear from the record that Royce had his mind set in representing himself and that this decision was not the result of the denial of his Marsden motion. We cannot equate Royce’s nearly two-week long repeated requests to proceed pro se to be a litigation decision resulting from “temporary whim, or out of annoyance or frustration . . . .” (People v. Marshall, supra, 15 Cal.4th at p. 21.) Nor can we equate Royce’s two-week long self-representation quest to be one made “in passing anger or frustration . . . .” (Id. at p. 23.)
Based on the foregoing, the juvenile court properly granted Royce’s request for self-representation. We conclude that the juvenile court’s exercise of discretion in granting Royce’s motion for self-representation is supported by the record. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085.)
In any event, we find that, even if Royce’s request to represent himself should have been denied, we cannot reverse the orders on appeal, as it does not appear reasonably probable that a result more favorable to Royce would have been reached had he not represented himself.
The egregious nature of the abuse and/or neglect of young Tabitha and the death of J.W., as set forth in detail, ante, are undisputed. There is nothing in the record to indicate that, even had an attorney represented Royce in this matter, he could have presented evidence that Royce was not negligent in J.W.’s death or that he was ignorant of Tabitha’s injuries such that the court would have made rulings more favorable to Royce.
C. Summary Denial of Royce’s Section 388 Petition
Royce next claims that the juvenile court abused its discretion when it summarily denied his section 388 petition.
Whether to conduct a hearing on a section 388 petition alleging changed circumstances or new evidence is within the juvenile court’s discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) When the juvenile court summarily denies a section 388 petition, this court reviews that decision under an abuse of discretion standard. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.)
Section 388 authorizes a petition to modify a prior order of the juvenile court “upon grounds of change of circumstance or new evidence . . . .” (§ 388, subd. (a).) “If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . .” (§ 388, subd. (c).)
The petition must make a prima facie showing as to both elements, change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D., supra,84 Cal.App.4th at p. 432.) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) If the petition fails to state sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the child to modify the order, the petition may be denied without a hearing. (Cal. Rules of Court, Rule 5.570(d); Zachary G., at p. 808.) The juvenile court may rely on its own knowledge of the facts of the case to summarily deny a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)
Royce contends the juvenile court abused its discretion in summarily denying his second section 388 petition because he presented new evidence to show that the February 1, 2006, order denying him reunification services and visitation should be modified. The second section 388 petition essentially requested the same change in order as the first section 388 petition, which was filed by his trial counsel on September 18, 2006. In the first petition, as new evidence, Royce’s trial counsel submitted photographs of Tabitha’s arm in a cast, a DVD containing footage of the fire in Indonesia, a certificate showing Royce’s completion of a parenting class, and a statement that Royce had called a therapist many times to set up an appointment for Tabitha. Trial counsel stated that a modification would be in the best interest of T.W. because Royce “has a bond with his son, [T.W.]. Prior to his removal, [Royce] provided care and support for [T.W.]. They had a parent/child relationship.” The court, however, summarily denied this request, finding “the facts do not support what is requested,” “the request does not state new evidence or a change of circumstances,” and “the request does not show how it will be in the best interest of the child.”
Royce in propria persona submitted a second section 388 petition, signed March 5, 2007, and filed March 14, 2007, along with lengthy purported supporting documentation. He requested modification from the same February 1, 2006, court order denying him services and visitation. The petition alleged ineffective assistance of counsel as well as violations of his due process and equal protection rights. Attached to the petition was a detailed elaboration of the issues; correspondence between trial counsel and Royce; a letter from Royce’s pastor noting Royce to be a good father, expressing his support for the family, and stating that he had overheard Royce state to Tabitha that Royce did not know she could speak English; a letter from a doctor noting that Royce would not have had the mental capacity to have granted consent following his son’s death due to sleep deprivation, stress, and grief; documentation from the State of Wisconsin Department of Health and Family Services response to a Seventh Circuit Court of Appeals decision concerning the authority of child protective services caseworkers to conduct child abuse and neglect assessments on private property; internet information on a tactical training course called Verbal Judo; information about the questionable credibility of the science of bite marks; a medical article concluding that a child’s bruise cannot accurately be aged from clinical assessment, and such should be avoided in child protection proceedings; information defense attorneys should know about false allegations; letters from friends noting Royce to be a very good friend and a loving father; an early development profile on J.W. dated June 21, 2001, indicating that he had qualified for Inland Regional Center services based on a diagnosis of cerebral palsy; and a discharge summary for a hospitalization for J.W. in March 2004 diagnosing him with a right ear canal abscess and Sotos syndrome. Finally, there were four photographs attached to the petition: (1) a picture of Tabitha in Indonesia showing her scarring in January 2004, about two months after the fire; (2) a picture of the neighbor’s swimming pool gate J.W. presumably went through; (3) a picture of the window lock in Tabitha’s bedroom; and (4) a picture of the handle of the wash wand.
Royce mistakenly stated that the order terminating his parental rights should be changed. However, the February 1, 2006, hearing had not terminated his parental rights; rather it was the jurisdictional/dispositional hearing, at which reunification services and visitation was denied.
After review of all such documentation, the court summarily denied Royce’s section 388 petition because “the facts do not support what is requested,” “the request does not state new evidence or a change of circumstances,” and “the request does not show how it will be in the best interest of the child.”
Royce claims that the court’s denial of a section 388 hearing was based on improper grounds. He claims that the court was denying the petition based on Royce’s mistake in stating in his petition that he was requesting a change of the court’s order terminating parental rights, when in fact it should have been a request to change the court’s order denying services. However, the court had summarily denied Royce’s request for the reasons noted above. This court order was made on March 6, 2007, in response to Royce’s section 388 petition, which was received by the court on March 5, 2007, and prior to the March 15, 2007, hearing. Therefore, the juvenile court denied the petition on proper grounds.
At the section 366.26 hearing, which was held on March 22, 2007, the court noted it was denying the section 388 petition because (1) parental rights had not been terminated yet, so it was premature; and (2) “this type of request” was “not a proper subject for this type of forum.”
Regardless, even if the juvenile court denied the petition on improper grounds, we are not persuaded that Royce made the requisite prima facie showing of changed circumstances or new evidence. Royce contends there was sufficient new evidence to warrant a hearing on his section 388 petition. Under all the circumstances, the court could reasonably conclude otherwise. The alleged new evidence was either redundant to the evidence already provided by his trial counsel or irrelevant to the case. Moreover, the petition contained no evidence why it would be in the best interest of the child to modify prior orders.
Additionally, as in any custody determination, a primary consideration in determining the child’s best interest is the goal of assuring stability and continuity. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) “When custody continues over a significant period, the child’s need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.” (Ibid.) Hence, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence, that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. (Ibid.; see § 388; In re Audrey D. (1979) 100 Cal.App.3d 34, 45.)
This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have not been ordered. After the termination of reunification services, a parent’s interest in the care, custody, and companionship of the child is no longer paramount. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) Rather, at this point, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child (id. at p. 310); such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Thus, in In re Edward H. (1996) 43 Cal.App.4th 584, the denial of the parent’s section 388 petition made at the time of the section 366.26 hearing and seeking to modify the order terminating reunification services, was upheld. The reviewing court noted that “[a]t the point of these proceedings -- on the eve of the section 366.26 permanency planning hearing -- the children’s interest in stability was the court’s foremost concern and outweighed any interest in reunification. [Citation.]” (Edward H., at p. 594.) The court concluded that the prospect of an additional six months of reunification to see if the mother would and could do what was required to regain custody would not have promoted stability for the children and thus would not have promoted their best interests. (Ibid.)
Here, Royce made no such showing. Love alone does not support Royce’s contention that it would be in T.W.’s best interest to change the court’s order. Rather, as noted above and as the record shows, if the orders were changed, T.W. would not have any stability and permanency in light of Royce’s declaration that he had no job and therefore was unable support T.W.
Therefore, the court properly denied Royce’s section 388 petition without a hearing. In addition, because Royce’s petition failed to state a prima facie case for modification, the court’s denial of the petition without a hearing satisfied both the statute and constitutional due process. (In re Angel B. (2002) 97 Cal.App.4th 454, 461; see In re Marilyn H., supra, 5 Cal.4th 295, 309-310.)
D. Sufficiency of the Adoption Assessment Report
Royce next argues that the juvenile court erred in terminating his parental rights because DPSS allegedly gave an inadequate assessment of T.W.’s developmental status and that therefore the court’s finding of T.W.’s adoptability was not supported by substantial evidence.
Initially, we note Royce waived this issue by failing to object below to the sufficiency or adequacy of the adoption assessment in any respect. Courts have held that a parent forfeits a claim that an adoption assessment does not comply with the statutory requirements where the parent fails to object to the adequacy of the assessment in the juvenile court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [failure to object to assessment report at section 366.26 hearing waived the issue of the report’s inadequacy].) One rationale for this rule is that it is “’”unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” [Citation.]’ [Citation.]” (In re Dakota S. (2000) 85 Cal.App.4th 494, 501, italics omitted.)
We see no reason why the general rule of waiver should not apply here. “Any other rule would ‘“‘permit a party to play fast and loose . . . by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.’” [Citations.]’ [Citation.]” (In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
In re Brian P. (2002) 99 Cal.App.4th 616 is not contra. In Brian P., the Court of Appeal held an objection below was not necessary to preserve a claim on appeal that substantial evidence did not support the juvenile court’s adoptability finding. However, at the same time, it noted that defects in the adoption assessment report were subject to waiver or forfeiture on appeal by a parent’s failure to object below. (Id. at pp. 622-623.)
In any event, aside from the waiver issue, the assessment report substantially complied with the statutory requirements, and the deficiencies, if any, did not constitute prejudicial error.
When services are terminated and a section 366.26 hearing is set, the juvenile court must direct the social services agency to prepare an adoption assessment report that, among other things, evaluates the child’s medical, developmental, scholastic, mental and emotional status, and includes a statement from the child concerning adoption unless the child is too young to give a meaningful response. (§§ 366 .21, subd. (i)(3), (5) & 366.22, subd. (b)(3), (5); In re Crystal J., supra, 12 Cal.App.4th at p. 411.)
The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child’s best interests. (See In re Dakota S., supra, 85 Cal.App.4th at p. 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (Ibid.)
Royce complains evidence of T.W.’s developmental status was lacking. We disagree. The reports described T.W.’s current medical, developmental, and mental and emotional status. He was reported as being in good health. In terms of his mental and emotional status, T.W. was reported to be enjoying interactions with other children. Further, he had not displayed any emotional or mental issues. The reports further noted that T.W. did not appear to be shy and that he had enjoyed outdoor activities such as bike riding. He had also enjoyed books, playing toy golf, running around, making noise, and watching cartoons in the mornings. He was described as a boy with “boundless energy.” He was portrayed as very social and playful and a typical happy young boy.
Relying on past statements made by the social worker concerning T.W.’s comprehension skills, Royce claims “no developmental evaluation was completed to diagnose or treat the source of his comprehension difficulties, assess his developmental status, or determine the impact of these issues on his adoptability and the likelihood of having a successful adoption.” According to the January 9, 2006, jurisdictional/ dispositional report, T.W., who was then about four years old, was reported to appear to be developmentally delayed. He was not toilet trained at the time and had limited vocabulary and comprehension skills. However, the subsequent reports stated T.W. was within appropriate developmental guidelines for his age. Furthermore, these same reports stated that T.W. was not a client of Inland Regional Center and was not receiving psychological services. Though the reports stated that T.W. seemed to have issues with comprehension of sentences and often misunderstood questions being asked, he was nevertheless able to say many words, consistent with appropriate developmental guidelines of a five year old. The change in the reports shows that either there were improvements in T.W.’s developmental status or that T.W.’s developmental status was not abnormal for a child of his age. (See In re Y.R. (2007) 152 Cal.App.4th 99, 112-113 [court found that improvements in past behavioral problems supported a finding of adoptability].) Further, contrary to Royce’s claim, it did not appear that it was necessary to have a “diagnosis and prognosis for any developmental or possibly neurological problems,” as T.W.’s comprehension difficulties would not deem him any less adoptable. T.W. was able to say many words, and it is not unusual for a child of his age to miscomprehend some sentences and misunderstand some questions. Moreover, the prospective adoptive parents, who were willing, able, and committed to adopt T.W. and provide him with a stable and structured home, had a good understanding of T.W.’s developmental needs and were willing to commit to the child on a full time basis.
To the extent Royce is contending there was insufficient evidence that T.W. was likely to be adopted within a reasonable time, he also cannot prevail. Whether a child is likely to be adopted is the “pivotal question” at the section 366.26 hearing. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) Parental rights may be terminated only after a finding by clear and convincing evidence that a child will be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “‘“‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]”’” (Jerome D., at p. 1205.) We review the juvenile court’s finding for substantial evidence, viewing the evidence favorably to the judgment and drawing all legitimate inferences that support the finding. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
“[T]he issue whether a dependent child is likely to be adopted focuses on the child rather than on the prospective adoptive family . . . .” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) Pertinent factors are whether the child’s age, physical condition, and emotional state make it difficult to find a person or family willing to adopt the child. (Id. at p. 1649.)
A finding that a child is likely to be adopted does not require the child’s placement in the home of a prospective adoptive parent or even that one be “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11; see also § 366.26, subd. (c)(1).) However, the fact that prospective adoptive parents express a willingness to adopt a child is evidence the child’s age, physical and mental state, and other characteristics are not likely to dissuade others from adopting if the anticipated placement fails. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T., supra, 3 Cal.App.4th at pp. 223, 225.) Further, the court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt. (See In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Here, whether or not T.W. had developmental delays, by the time of the section 366.26 hearing, T.W. had been living with his prospective adoptive parents for about a year. The prospective adoptive parents, who had an approved home study, were aware of T.W.’s comprehension issues, but they also saw that T.W. had made progress and was continuing to do so. They remained committed to adopting him.
Royce claims that the juvenile court lacked an adequate assessment of the nature and quality of the contact and relationship between T.W. and Royce. Specifically, he argues that the report did not contain information about the visit the parents were given during the first two months of the case when the court had ordered supervised visitation. County Counsel concedes that the report did not detail the nature of that visit but maintains that the report nevertheless satisfied the statutory requirement that the social worker describe the amount and nature of any parent-child contact and that any such deficiency was supplied by other evidence and was therefore harmless.
Royce also complains that his visitation with his son was unlawfully denied. However, as he later appears to acknowledge, that is not relevant here.
In re Lorenzo C. (1997) 54 Cal.App.4th 1330 is instructive. In that case, the father alleged that the assessment report did not include information regarding his visits with his son. The only references to the amount of visitation were statements that there were periods for which there were no reported visits, periods for which there were regular visits, periods for which the father lived with his son, and then periods for which there had been no contact. (Id. at p. 1337.) The only reference to the nature of the contact was that “‘[t]here is no information available as to the quality of these visits’” and later a mere conclusory statement that “‘[t]here did appear to be some evidence of bonding between the father and the minor . . . .’” (Ibid.) The court found that the department’s reports were adequate. (Id. at p. 1336-1337.) The court stated that the report “well satisfies the statutory command that the social worker describe the amount and nature of any parent-child contact.” (Id. at p. 1337.)
Royce argues that “[u]nlike the report in Lorenzo C., the department assessment omitted any information about the relationship between [T.W.] and his father or his mother and failed to fully evaluate [T.W.’s] needs and best interest.” The record belies this contention. The January 9, 2006, report stated that a visit between the parents and children had been arranged. This was the one visit that Royce had with T.W. On February 1, 2006, the juvenile court found visitation between the children and parents to be detrimental and suspended visitation. The June 1, 2006, assessment report stated this fact. The report noted that there would be a visit and it thereafter stated that the court suspended visitation. Therefore, the amount of contact was reported. As Lorenzo C. explained, there is no requirement that the social worker describe the “actual amount” of time or detail the quality of the visits.
Though the nature of the visit was not reported, it was revealed by other evidence, i.e., testimony of Royce and Claudia. During the direct examination of Claudia, she testified that the last time she had seen T.W. was at the DPSS office at the second hearing. She also stated that when she first came to see him, he looked sad; that T.W. whispered to her and said he wanted to go home; and that the visit was for one hour. According to Claudia, T.W. wanted to follow her home. Royce also testified and stated that he only had one visit with his son and that T.W. tried to follow him when the one-hour visit was over. He further stated that T.W. was upset he could not return to his home. Thus, the nature of the visit was before the court for its consideration.
Royce also complains that the report failed to contain information about T.W.’s relationship with Tabitha. Royce is mistaken. The assessment on the prospective adoptive parents states that T.W. enjoyed going to the park with Tabitha and that Tabitha liked visiting with her brother. In addition, there was other evidence in the record about the relationship between the siblings. For example, Royce testified that T.W. and Tabitha were close and that it was likely that they were communicating and confiding in one another daily.
Royce also incorrectly asserts that DPSS “failed to fully evaluate [T.W.’s] needs and best interest.” The best interest of T.W. is promoted by stability and permanency -- in other words, adoption. According to the January 31, 2007, report, the prospective adoptive parents have the financial means, stable home, and nurturing disposition to care for the child and provide him with a stable home. We reiterate that an assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F., supra, 27 Cal.App.4th at p. 1378.)
In spite of any deficiencies, given the totality of the evidence before the court, the assessment reports provided an adequate basis for selecting and implementing adoption as T.W.’s permanent plan. (See In re Heidi T. (1978) 87 Cal.App.4th 865, 876.) Royce’s arguments to the contrary are to no avail.
Under these circumstances, we find substantial evidence supported the juvenile court’s finding that T.W. was likely to be adopted.
E. Parental Relationship Exception to Adoption
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the six exceptions set forth in section 366.26, subdivision (c)(1)(A) through (E). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)
See footnote 3, ante, page 3.
Royce claims that the juvenile court erred in not finding applicable the section 366.26, subdivision (c)(1)(A) exception to termination of parental rights, as he had maintained regular contact with T.W. as he was permitted and T.W. would benefit from the continued contact with him.
The parental benefit or “beneficial relationship” exception is set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where “‘[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. (1999) 73 Cal.App.4th 823, 826.) The parent has the burden of proving that the exception applies. (Id. at p. 826.) “The parent must do more than demonstrate ‘frequent and loving contact[,]’ [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a ‘parental role’ in the child’s life.” (Id. at p. 827.)
The parent must also show that his or her relationship with the child “‘promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’” (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
“ . . . ‘The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the child’s life spent in the parent’s custody, the “positive” or “negative” effect of interaction between parent and child, and the child’s particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.’” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350, quoting In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
“Where a biological parent . . . is incapable of functioning in [a parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’ [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) One court has observed, “The ‘benefit exception’ found in section 366. 26, subdivision (c)(1)(A) may be the most unsuccessfully litigated issue in the history of law.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
There must be a “‘compelling reason’” for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a “quintessentially discretionary determination.” Thus, we review the juvenile court’s determination for an abuse of discretion. (Id. at p. 1351.) Nevertheless, “‘[e]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . . ”’ [Citations.]” (Ibid.)
We note that courts have reached different conclusions as to the standard of review that applies to a juvenile court’s ruling on exceptions to adoptability under section 366.26, subdivision (c)(1). In In re Autumn H., supra, 27 Cal.App.4th 567, the court held that a finding that no exceptional circumstances exist to prevent the termination of parental rights is reviewed under the substantial evidence test. (Id. at pp. 575-576.) In contrast, in In re Jasmine D., supra, 78 Cal.App.4th 1339, the court applied the abuse of discretion standard of review. (Id. at pp. 1351-1352.) For purposes of the present case, it makes no difference which standard applies because, as discussed below, we conclude that the juvenile court did not err under either test.
Here, though Royce, under the circumstances of this case, could satisfactorily demonstrate that he had maintained contact as permitted with T.W., he had failed to show that the child would benefit from continuing the relationship. As stated above, “the parent must show more than frequent and loving contact or pleasant visits. [Citation.] ‘Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.]’ [Citation.] The parent must show he or she occupies a parental role in the child’s life, resulting in a significant, positive, emotional attachment from child to parent. [Citations.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “In other words, for the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt. [Citation.]” (In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
Royce was given one visit, which he attended before visitation was terminated based on a finding of detriment to the children.
There was insufficient evidence that T.W. would benefit more from continuing his parent-child relationship with Royce than from adoption. T.W. was removed from the parents’ home in December 2005. Reunification services were terminated on February 1, 2006. For over a year, T.W. had lived with his prospective adoptive parents, who had provided him with permanency and stability. There was no evidence to show that T.W. would be greatly harmed by terminating the parents’ parental rights. The social worker noted that T.W. was doing well in his prospective adoptive home and that his prospective adoptive parents were willing to adopt him and give him a permanent home. In addition, while Tabitha did not want to be adopted, T.W. appeared excited about living with his prospective adoptive parents and had even claimed a room in their home.
Moreover, a return to the home would put T.W.’s well-being in jeopardy. Severe neglect in Royce’s home was obvious as evidenced by the emotional and physical scars to Tabitha, the death of J.W., and the conditions of the home. As noted by the court, “These children were severely neglected. We now have a dead child. We have a child so damaged we don’t know if we can ever fix her.” Furthermore, Royce had continued to deny any responsibility for the severe neglect, instead continuing to blame Tabitha for J.W.’s death and J.W. and the fire in Indonesia for causing the physical injuries to Tabitha.
We conclude the juvenile court reasonably found there was insufficient evidence that T.W. would benefit more from continuing his relationship with Royce than from adoption. T.W. is doing well in his prospective adoptive family’s home. There is no evidence that the child would be harmed — much less “greatly harmed” (see In re L.Y.L., supra, 101 Cal.App.4th at p. 953) — by severing his parent-child relationship with Royce. The juvenile court thus properly found that the beneficial parental relationship exception to termination of the parents’ parental rights did not apply.
F. Sibling Relationship Exception to Adoption
Royce also argues that the juvenile court erred in finding that the sibling relationship exception to adoption under section 366.26, subdivision (c)(1)(E) did not apply. This subdivision provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a “substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(E).)
See footnote 3, ante, page 3.
The juvenile court undertakes a two-step analysis in evaluating the applicability of the sibling relationship exception. First, the court is directed “to determine whether terminating parental rights would substantially interfere with the sibling relationship by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds. [Citation.] If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child’s best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.” (In re L.Y.L., supra, 101 Cal.App.4th 942, 951-952.) “[T]he concern is the best interests of the child being considered for adoption, not the interests of that child’s siblings.” (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.)
“Reflecting the Legislature’s preference for adoption when possible, the ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (In re Celine R., supra, 31 Cal.4th at p. 61.) We review the court’s finding on this issue for substantial evidence. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.)
Here, Royce failed to present any evidence to support his assertion that section 366.26, subdivision (c)(1)(E) applied. Based on his “personal observations of the interactions of these two children,” Royce contends that T.W. and Tabitha adored each other and that they were very close and appeared to be in communication with each other. However, as Royce stated, he did not even “know that Tabitha could speak any meaningful English.” Yet, his contention is nonetheless that it “is highly likely that she and [T.W.] were communicating and confiding in one another daily.” Royce’s speculation is unsupported by the evidence. Rather, there was little, if any, evidence that T.W. would suffer detriment from severing the relationship with his half sibling Tabitha even if contact between the siblings were terminated. T.W. and Tabitha merely resided in the same home for about two years before they were removed from the parents’ custody and placed in different foster homes. T.W. was only two years old when Tabitha first came from Indonesia to the United States. T.W. is now at an age when he needs permanency and stability in his life, which his prospective adoptive parents are providing. There was no evidence that T.W. even had a relationship with Tabitha. Regardless, T.W. will be having sibling visits with his half sister, as the prospective adoptive parents were very receptive to sibling visitation as well as open to continued contact with Tabitha. Because the child’s prospective adoptive parents were willing to maintain sibling contact, there was no substantial interference with the sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 254.)
Contrary to Royce’s contention, the record does show the prospective adoptive parents commitment in allowing sibling contact. The prospective adoptive parents had developed a loving and committed relationship with both Tabitha and T.W. and were willing to extend that relationship to a permanent adoptive home for both children. In fact, the prospective adoptive parents were willing to wait for Tabitha until she felt more comfortable with the move. Instead, it is very doubtful that Royce would promote, or even allow, sibling contact if T.W. was placed in his care. Based on the record, it appears that he had no emotional attachment to Tabitha and informed the court that he was not Tabitha’s “presumed father, real father, or any other kind of father.” He initially indicated through counsel that he did not want visitation with Tabitha and did not want to reunify with her. It is evident that Royce merely wanted T.W. and did not want to be connected to or responsible for Tabitha in any way.
Moreover, while there was some concern about Tabitha being moved into the adoptive parents’ home, there was no evidence T.W. would suffer any detriment from being adopted. In fact, T.W. wanted to be adopted by his prospective adoptive parents and had even claimed his room. The suggestion that T.W. would not have a relationship with Tabitha or somehow suffer detriment due to the fact that their permanent plan differed is speculation and without support in the record. (See In re Jacob S., supra, 104 Cal.App.4th at p. 1019 [sibling exception did not apply when, among other reasons, no evidence that relationships between siblings will necessarily cease upon termination of parental rights].)
For the foregoing reasons, we hold that there is substantial evidence in the record to support the court’s conclusion that the sibling relationship exception to adoption does not apply.
G. Habeas Corpus Petition
Royce collaterally attacks the termination order by means of a petition for writ of habeas corpus, which is supported by declarations by him, his trial counsel, and his appellate counsel. Royce contends his trial counsel rendered ineffective assistance at various hearings in the dependency proceedings: the February 1, 2006, jurisdictional/ dispositional hearing, at which T.W. was declared a dependent, removed from Royce’s custody, and Royce was denied reunification services and visitation; the September 19, 2006, hearing, at which the juvenile court denied Royce’s section 388 petition; and the March 22, 2007, hearing, at which the juvenile court denied Royce’s second section 388 petition and terminated his parental rights to T.W.
We will not issue an order to show cause on Royce’s habeas corpus petition. As stated by the court in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161 (Meranda P.), “the Legislature has expressly prohibited the collateral dispute of a termination order.” 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.” (Meranda P., supra, 56 Cal.App.4th at p. 1161; see also In re Heather B. (2002) 98 Cal.App.4th 11, 15; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1316 [“[a]n order of the dependency court terminating parental rights may be modified only by timely direct appeal from the order”].)
Furthermore, “there is the rule of law, reaffirmed by the Supreme Court less than a decade ago, that ‘habeas corpus may not be used to collaterally attack a final nonmodifiable judgment in an adoption-related action where the trial court had jurisdiction to render the final judgment.’ [Citation.]” (Meranda P., supra, 56 Cal.App.4th at p. 1161, fn. omitted.) The termination order here is “a final, statutorily (§ 366.26, subd. (i)) nonmodifiable order, issued by a court with subject matter jurisdiction over the cause finding [the child] adoptable, terminating [parental] rights and freeing the child for adoption by a third person.” (Id. at p. 1162.) “[T]he order, and the [section 366].26 hearing from which it came, were ‘adoption-related.’” (Ibid.) In addition, by the time a termination order is entered, the interests of the parent and child collide and the child’s interest in finality prevails. (Id. at p. 1163.) Here, T.W. is bonded with his prospective adoptive parents, who strongly desire to provide a stable, loving, and permanent home for the child.
Meranda P. is instructive. There, a mother appealed from an order terminating parental rights, complaining that the entire dependency proceeding was defective from its inception because she continuously received ineffective assistance from appointed counsel. (Meranda P., supra, 56 Cal.App.4th at pp. 1150-1151.) The Court of Appeal found that the mother had waived any complaints she had about counsel by failing to timely appeal or petition for extraordinary relief far earlier in the dependency process. (Id. at pp. 1151-1152.)
Here, Royce has been essentially complaining about counsel since the inception of this case. Yet when he filed a writ petition following the denial of services and visitation, he did not pursue the issue. He also did not pursue the issue following the denial of the first section 388 petition, even though the order was appealable. (See In re Aaron R. (2005) 130 Cal.App.4th 697, 703.) Royce could have filed a writ petition claiming ineffective assistance following the adjudication and disposition of the petition as well as following the denial of the first section 388 petition. By waiting until after his parental rights were terminated to complain about alleged attorney misconduct that occurred a year and about six months earlier, respectively, Royce waived his right to claim ineffective assistance.
The case of In re Darlice C. (2003) 105 Cal.App.4th 459 (Darlice C.) does not aid Royce. That case rejected Meranda P.’s analysis that habeas corpus may be used to collaterally attack an order terminating parental rights. The mother in Darlice C. claimed that she was not afforded competent assistance of counsel at the 366.26 hearing. Specifically, while appeals were pending, the mother petitioned for writ of habeas corpus alleging that appointed counsel was incompetent for failing to advise the court of the existence and applicability of the sibling relationship exception to adoptability. (Darlice C., at p. 462.) The court held that a parent has the right to seek review of claims of ineffective assistance of counsel by writ of habeas corpus where the juvenile court has ordered parental rights terminated. (Id. at p. 463.) The court began its discussion by stating that an indigent parent has a statutory right to appointed counsel in dependency proceedings and is entitled to competent counsel. (Ibid.; see also §§ 317, 317.5.) The court further stated that this right “‘has been interpreted in substantially the same manner as the constitutional right to the effective assistance of counsel. [Citation.]’ [Citation.]” (Darlice C., at p. 463.) The court then explained that since action taken or not taken by trial counsel was typically motivated by considerations not reflected in the record, the establishment of ineffective assistance of counsel most commonly required a presentation that went beyond the record of the trial. (Ibid.) Thus, the issue had to be adjudicated by means of petition for writ of habeas corpus. (Ibid.)
We also reiterate that the correct vehicle for raising a claim of ineffective assistance of counsel is generally a writ of habeas corpus, not an appeal. (Darlice C., supra, 105 Cal.App.4th at p. 463.) However, “[h]abeas corpus may not be utilized to challenge antecedent final orders.” (In re Carrie M. (2001) 90 Cal.App.4th 530, 534 (Carrie M.).) As the Court of Appeal in Carrie M. explained, “A petition for writ of habeas corpus in a dependency matter raising a claim of ineffective assistance of counsel does not lie from a final order. [Citations.] An order is final when the time for appeal has expired and no timely appeal has been filed or the order has been appealed and affirmed. [Citations.] It is appropriate, however, to raise the issue of ineffective assistance of counsel by petition for writ of habeas corpus filed concurrently with an appeal from a final order. [Citation.] The 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.] Thus, for example, a claim of ineffective assistance of counsel in connection with jurisdiction and disposition orders may be raised in a petition for writ of habeas corpus filed in connection with an appeal from the disposition order. [Citation.] The same claims may not be raised by a habeas corpus petition filed in connection with an appeal from an order terminating parental rights. [Citation.]” (Id. at pp. 533-534.)
The only possible viable issue in this case would have been whether or not Royce had been provided with ineffective assistance of counsel at the section 366.26 hearing. (See Carrie M., supra, 90 Cal.App.4th at pp. 533-534.) In this regard, Darlice C. is distinguishable from the present matter. Here, Royce chose to represent himself at the 366.26 hearing; therefore, he cannot claim ineffective assistance of counsel on appeal from the judgment which followed. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 545-546.) Hence, Darlice C. and Carrie M. do not aid Royce.
Moreover, it is not in T.W.’s best interests that an order to show cause issue. T.W. has been placed in his prospective adoptive home since May 2006 and has been provided with stability, love, and nurturing. Any legal action by Royce that delays T.W.’s permanent plan is not in T.W.’s best interests. (In re Emily L. (1989) 212 Cal.App.3d 734, 743; In re Francisco W. (2006) 139 Cal.App.4th 699, 706.)
Accordingly, based on the foregoing, we will not issue an order to show cause on Royce’s habeas corpus petition.
III
DISPOSITION
The judgment is affirmed.
The petition for writ of habeas corpus is DENIED.
We concur: HOLLENHORST Acting P.J., MILLER J.