Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. Nos. J181669 & J181670
Haerle, Acting P. J.
I. Introduction
Joselyn M., now age 14, and brother J. M., now age 10, were first taken into custody by the Alameda County Social Services Agency (Agency) in February 2001. After both parents failed to reunify, the children’s paternal grandmother, Betty C., was appointed their legal guardian and dependency jurisdiction was dismissed. Betty died in 2006 and, the following year, the juvenile court reinstated dependency proceedings and subsequently set a hearing pursuant to Welfare and Institutions Code section 366.26 in order to implement a new permanent plan for the children.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
John M., the children’s father, seeks review by extraordinary writ of a juvenile court order setting the section 366.26 hearing, claiming that procedural irregularities “may” have violated his due process rights and that he “may have been deprived of effective assistance of counsel.” We deny the writ on the merits.
II. Statement of Facts
A. Background
1. The 2001 Petition
On February 28, 2001, the Agency took seven-year-old Joselyn and her three-year-old brother, J. M., into custody in response to a report of physical abuse. Joselyn was temporarily placed in the home of her paternal grandmother, Betty C., and J. M. was placed in emergency foster care. A March 2, 2001, juvenile dependency petition filed pursuant to section 300, subdivisions (b) and (g), alleged physical abuse and neglect by the mother, who had substance abuse problems, and that the father’s ability or willingness to care for the children was unknown.
According to the Agency’s detention report, Joselyn reported that her mother, who had been drinking, became angry at her for breaking a cup, dragged her into a bedroom and “slammed” her into a wall. Joselyn also reported that she often babysat her brother while her mother slept or went out, and that her mother fed her but sometimes she went without food. Joselyn, who has myopia, was in special education because of her visual impairment. Her special education teacher expressed concern that Joselyn often came to school hungry and missed a lot of school which required her to repeat a grade.
The Agency reported that the children’s parents, John C. and Gwendolyn G., were not married or together, but that John held the children out as his own. These parents also have two older minor children who were living with their maternal aunt, Carolyn H. Gwendolyn admitted to the Agency worker that she had drug and anger management problems but maintained that she only accidentally injured Joselyn. Betty C., the paternal grandmother, confirmed that Gwendolyn had problems with drugs and depression but did not think she was physically abusive. The Agency worker reported that she saw John when she went to Betty’s home but he did not have time to talk and he failed to reply to messages she left for him. The children were detained on March 6, 2001.
Catherine, who was born in 1987, and Jonathan, who was born in 1990, were juvenile court dependents in 1990. Family maintenance services were provided to Gwendolyn and the case was dismissed in 1992. At some point, Gwendolyn placed these children with her sister, Carolyn H.
A jurisdictional and dispositional hearing was conducted on March 20 and 29, 2001. The Agency reported that both parents have long histories of substance abuse and that John also has a lengthy criminal history. His arrest record for drug offenses spanned 25 years. John had been minimally involved in the children’s lives and it was unclear whether he provided financial support for them. It appeared that John was a transient and the Agency worker’s attempts to contact him did not generate any response. John did not appear at the hearing at which the court sustained jurisdiction, removed the children and ordered that reunification services be provided to both parents.
The six-month review hearing was held on August 23, 2001. By that time, both parents had entered drug treatment programs. Before he began treatment, John did not visit the children, although he saw Joselyn when he went to visit his mother. Gwendolyn had inconsistent visits with the children. Both parents appeared at the review hearing. Reunification services were continued.
The 12-month review hearing was held on February 7, 2002. The Agency reported that both parents had remained in their respective drug treatment programs. John was expected to graduate in March and Gwendolyn in June, and both reported they would participate in transition programs. John had been having weekly visits with the children, and Gwendolyn was also more consistent with her visits. John also began working. Gwendolyn had undergone a psychological evaluation but declined to participate in a medical evaluation for depression because she did not want to take any medication. The Agency recommended an in-home placement with family maintenance services for Gwendolyn and reunification services for John. John did not appear at the review hearing where the Agency’s recommendations were adopted.
Gwendolyn received family maintenance services for approximately 17 months while the children lived with her in transition housing. During this period, Gwendolyn had some set backs. She tested positive for crack cocaine on July 10, 2002, and left her transition program. But she entered another transition home, agreed to drug test twice a week and was working part-time. At a January 23, 2003, family maintenance review hearing, the Agency reported that Gwendolyn and the children remained in the transition home and, although Gwendolyn only drug-tested six times during this reporting period, all her tests were negative. She continued to work part-time. On June 13, 2003, Gwendolyn failed to pick up Joselyn from school. The police took both children to Betty’s home where they stayed for an extended visit. On June 16, Gwendolyn admitted to using cocaine and “other stuff.” She was not drug testing or attending therapy on a regular basis.
During the family maintenance period, John was living in transition housing and working as a driver. The Agency worker arranged for John to drug test so he could qualify for Family Preservation Section 8 housing, but John did not follow through. He agreed to a termination of reunification services and said he would apply for Section 8 housing on his own. Reunification services were terminated on August 15, 2002. John continued to live in his transition house and started working as a long-distance driver. Gwendolyn reported that John visited when he was in town.
2. The Section 387 Petition
On July 24, 2003, the Agency filed a section 387 petition alleging that Gwendolyn was unable to care for the children due to a drug relapse. The Agency sought to place the children with Betty. Neither parent appeared at a July 25, 2003, hearing where the court ordered the children were to be retained. Gwendolyn appeared at an August 8, 2003, jurisdictional hearing and submitted a waiver of rights. John did not appear. The allegations in the section 387 petition were sustained.
The dispositional hearing commenced on September 4, 2003, and continued on September 11. After the September 4 hearing, John contacted the Agency and requested services. The Agency reported that Gwendolyn had stopped attending therapy and was involuntarily discharged from her drug program. However, she was prepared to enter another residential treatment program. On September 9, the Agency learned that Joselyn had been molested by Gwendolyn’s boyfriend and that the family wanted him prosecuted. At the conclusion of the dispositional hearing, the juvenile court ordered that the children were to be removed from Gwendolyn’s care, that Gwendolyn had made partial efforts to overcome the problems resulting in dependency, that John had made minimal efforts, and that neither parent was entitled to further reunification services.
On February 25, 2004, the juvenile court adopted a permanent plan for the children of permanent relative placement with Betty. Review reports covering the next several months indicated that Joselyn was doing well but had nightmares about her molestation. At some point during this period, Joselyn testified at the criminal trial of her molester who was found guilty. Joselyn had a history of asthma and had suffered seizures in the past but was currently healthy. J. M. had behavior problems and both children were in therapy.
Gwendolyn continued to struggle with drug problems. She was living in a shelter and began drug testing on April 1, 2004, and had weekly unsupervised visits with the children for a few months. However, she stopped testing in early June and dropped out of her treatment program. She tested positive for cocaine on September 10 and was subsequently ejected from her shelter for fighting. Her visits changed to supervised visits at Betty’s home and she stopped visiting on a regular basis.
During this period, John had regular unsupervised visits and was often accompanied by his fiancé. The Agency became concerned by reports that John and his girlfriend had disciplined the children by hitting them. The Agency requested a background check of the girlfriend. John also admitted to the Agency worker that he had a history of abusing crack cocaine, alcohol, and marijuana. The Agency requested that John be drug tested. In January 2005, the Agency reported that John had daily contact with the children and sometimes slept at Betty’s home, but that he was not drug testing. Betty advised that she would not allow John to have contact with the children if it appeared he was under the influence. The Agency also reported that John’s girlfriend was now prohibited from being alone with the children because the Agency had discovered she had a criminal and Child Protective Services history.
At a January 24, 2005, review hearing, the Agency recommended a permanent plan of legal guardianship for the children. Neither parent had demonstrated the ability to consistently care for the children. Gwendolyn had experienced a drug relapse and did not have stable housing. John was visiting regularly but refused to drug test in order to demonstrate he was living a clean and sober lifestyle. Betty had demonstrated an ability to care for the children and a desire to become their legal guardian. The court scheduled a section 366.26 hearing for May 19, 2005, to adopt a new permanent plan for the children.
On May 19, 2005, the juvenile court filed its section 366.26 order. The court found, among other things, that the children were adoptable but that terminating parental rights would be detrimental to them because the parents had maintained regular contact with the children and the children would benefit from continuing the relationship and because the children were living with a relative who was unable or unwilling to adopt them because of exceptional circumstances. The court appointed Betty as the children’s legal guardian and granted both parents reasonable visitation.
On July 7, 2005, the court terminated its dependency jurisdiction over the children.
B. The 2007 Investigation and Reinstated Dependency Jurisdiction
In August 2006, Betty died. Subsequently, both John and Gwendolyn moved into Betty’s home. The record does not disclose when the Agency first learned of these changed circumstances.
1. The Agency Investigation
On August 1, 2007, the Agency commenced an out-of-custody investigation in response to reports that John, Gwendolyn and John’s girlfriend were using crack cocaine in the home. An Agency investigator made several attempts at face-to-face contact with the parents but was repeatedly denied both an interview and entry into the home. On September 4, 2007, the investigator interviewed Joselyn and J. M. at their respective schools. The children reported that they were living in Betty’s home with their mother, father, father’s girlfriend, and the daughter of the father’s girlfriend. J. M. shared a bed with his mother and John had another bed in the same room. Joselyn had her own bedroom and John’s girlfriend and her daughter slept on a pull-out couch. J. M., who was now nine, was happy with his living situation, but 13-year-old Joselyn was not.
Joselyn reported that, after her grandmother died, her parents moved in and began doing drugs in the home. Her father’s girlfriend also took “a lot of drugs.” Joselyn said that a lot of people went in and out of the downstairs unit of their duplex which was where her parents took drugs. Joselyn had seen her father with a pipe which he used to smoke crack and her mother told her she uses crack sometimes. Joselyn said she did not want to live with her parents and planned to move in with her older sibling in the near future. Joselyn said there were times when there was no food in the house and that her father had not bought her new clothes in a year. The family had a food bank card but Joselyn did not know where the money went. She had no rules or chores at home and never got in trouble. J. M. admitted that he got in trouble at home for breaking things or throwing glass out the window. He recently got in trouble for coming home at midnight. According to Joselyn, J. M. also got in trouble for stealing soda from a store. J. M. reported that he was happy with his home, neighborhood and friends. He said there was always food in the house and claimed the adults got along and never argued.
On August 28, 2007, the Agency received a second referral about the family, apparently from a relative who had been called to pick J. M. up from school after the boy had waited two hours for his father who never arrived. The relative reported that the inside of the home was dirty and that the parents used controlled substances in the basement in the presence of the children.
2. The December 2007 Petition
On December 4, 2007, the Agency took the children into protective custody and subsequently placed them in the home of their maternal aunt and uncle, Carolyn and Richard H. On December 6, 2007, the Agency filed a juvenile dependency petition on behalf of Joselyn and J. M. pursuant to section 300, subdivision (b) (failure to protect). The Agency alleged that the children faced a substantial risk of serious harm because both parents (1) had lengthy histories of drug abuse which periodically rendered them unable to care for the children, (2) failed to ensure that the children regularly attended school, and (3) failed to cooperate with Agency efforts to investigate current charges of neglect since August 1, 2007. The Agency further alleged that the parents had previously received reunification services and family maintenance services but had failed to reunify with their children necessitating the appointment of the paternal grandmother as the children’s legal guardian.
According to the Agency’s detention report, John, Gwendolyn and John’s girlfriend were all living in Betty’s home notwithstanding that there was a restraining order for John to stay away from both women because of domestic violence. There was also “heavy traffic in and out of the home involving substance abuse.” PG&E had shut off service in July and the parents wrote a bad check in the amount of $1,300 to get it reinstated. The parents received financial assistance for the care of the children, but the money was gone within two days. The children were not supervised at home and, when not at school, spent most of their days at the library. The Agency reported that both parents were interviewed after the children were taken into custody and they wanted the children returned to their care. John claimed his legal rights had been violated and denied he had current substance abuse problems. The children reported they were content in the aunt and uncle’s home.
Both parents appeared at a December 7, 2007, detention hearing and were provided appointed counsel. The children were detained and the Agency was given discretion to continue their placement in the aunt and uncle’s home. A jurisdictional and dispositional hearing was scheduled for December 20, 2007. The Agency recommended that the court order an out-of-home placement for the children and no reunification services for either parent. The hearing was continued to February 4, 2008, after both parents requested a contest.
The jurisdictional/dispositional report reflects that the aunt and uncle were willing to provide a home for the children until adulthood and that both children stated they wanted to live there. The children had a close relationship with their aunt and uncle, their older brother, Jonathan, lived in the aunt and uncle’s home, and both children could remain at the same schools. Both children were in special education programs at their respective schools. Joselyn was in a program for visually impaired students and her teacher, who she had been with since elementary school, was very supportive. J. M. was in special education because of trouble with receptive language. The Agency reported that, when Joselyn was in Betty’s care she received Bs and an A in P.E. While living with her parents, Joselyn’s grades dropped to Ds and Fs. Out of 64 days of school, Joselyn had four excused absences and 16 unexcused absences and was frequently tardy. J. M.’s school records for the 2006-2007 school year showed that he was tardy 20 times and was absent 23 out of 180 days for the year. J. M. had reported to the Agency worker that, while he lived with his parents, he got himself ready and went to school without any adult assistance.
The Agency also reported that, after the detention hearing, both parents had admitted they needed help with their substance abuse and other problems. John had asked for information about domestic violence and anger management and Gwendolyn expressed a desire to enter a de-tox program. Both parents were given referrals for several programs. In a February 4, 2008, addendum report, the Agency reported that Gwendolyn had not followed up on referrals to drug treatment programs. Although John had stated he planned to attend an outpatient substance abuse program, he had not yet provided the Agency with verification of his attendance. The children were interviewed at their schools on January 9, 2008, and both said they were happy living at the aunt and uncle’s and they did not want to return to their parents.
3. The February 2008 Hearing and Order
At the February 4, 2008, contested hearing, John appeared with his appointed counsel. Gwendolyn did not appear but was represented by counsel. The children were represented by a public defender. At the beginning of the hearing, the court stated that it had conducted an in chambers conference prior to the hearing during which the parties entered into a stipulation that (1) the December 6, 2007, section 300 petition would be treated as a section 388 petition, and (2) John’s opposition to the Agency’s recommendation of no reunification services would be treated as his own section 388 petition for the return of the children to his custody.
Pursuant to section 388, any person having an interest in a dependent child may file a petition in the same action in which the child was found to be a dependent child for a hearing to change, modify or set aside a previous order of the court on the grounds of change of circumstance or new evidence.
After all parties approved the stipulation on the record, Agency counsel formally moved under section 388 to reinstate dependency for both children on the basis that the death of the children’s guardian constituted a change of circumstance and that it was in the best interest of the children to reinstate the dependency. The Agency requested that the court adopt its recommendations to place the children with the aunt and uncle and deny services to the parents. The motion was supported by evidence in the December 20, 2007, report and the February 4, 2008, addendum.
John’s counsel then made an oral section 388 motion alleging that the children had lived with him since their guardian died and that he “would like to see his children continue to remain in his home . . . .” To support his motion, John made an offer of proof that, after the Agency filed its petition, he took steps to alleviate the circumstances which led to removal by enrolling in an outpatient treatment program on December 27. John also offered to present an attendance card verifying he had attended in-take and three sessions of Phase 1 counseling, at least one men’s group, and two sessions of a parenting class. Based on this offer of proof, John argued that it was in the children’s best interests that they remain in his home and that “he be their caregiver with appropriate Family Maintenance services and conditions.”
After the court took a recess to consider the evidence, all the parties conceded that the death of the children’s guardian constituted a changed circumstance warranting the reinstatement of dependency, and that the present contest pertained only to the question of who should care for the children. Through his counsel, John expressly stipulated that it would be in the best interests of the children to reinstate dependency.
Through counsel, John argued that he had cared for his children since Betty’s death. He acknowledged there may have been some “issues” in the home but claimed that he had taken steps to alleviate the problems by availing himself of the Agency referrals and enrolling in a treatment program. Counsel argued that John “loves his children, that he is in a position at this point to provide for their care and he would like to do so, and that their interests would be best served thereby.”
The children’s counsel opposed John’s section 388 motion. She pointed out that John’s history with the Agency went back 18 years to 1990 when his older children were removed from the home, and that he had a 20-year drug history. Children’s counsel also argued that evidence that John had just got started in a treatment program was insufficient to show any change in his circumstance and that he had presented no evidence to support his contention he could care for the children. Agency counsel concurred with the children’s counsel that John’s petition should be denied. He underscored that these children had been in the system since 2001, and that numerous unsuccessful efforts had been made to reunite the family. Counsel pointed out that the children had been through so much and that they wanted to stay with their aunt and uncle.
The court found there was no dispute that the guardian’s death constituted a change of circumstance and that it was in the children’s best interests to reinstate dependency and place the children in the care of the Agency until a new permanent plan was adopted. With regard to John’s petition, the court found that the circumstances were “just beginning to change but they have not changed yet,” and that John had not established he was in a position to care for his children. The court noted, among other things, that to establish a change in his own circumstance, John would have to show that he was consistently not using drugs and was sober for a reasonable period of time. Further, John would also have to show a change in the conditions of his household since other people with drug problems were living there. Therefore, the court denied John’s petition. However, the court noted that John was not precluded from filing another section 388 petition, once he could make the required showing regarding a real change in his circumstances. The court advised that John would also have to show that he could parent his children by continuing to have a relationship with them while they lived with the aunt and uncle. In this regard, the court adopted the Agency recommendation to grant both parents visitation.
When the juvenile court has dismissed dependency jurisdiction following the establishment of a legal guardianship and the legal guardianship is subsequently revoked or terminated, the court “may vacate its previous order dismissing dependency jurisdiction over the child.” (§ 366.3, subd. (b).)
In a February 4, 2008, minute order, the juvenile court found, among other things, that the welfare of the children required that custody be taken from both parents, that the home of removal was the home of the mother and father, that reasonable services had been provided by the Agency, and that the extent of progress made by both mother and father toward alleviating or mitigating the causes necessitating the out-of-home placement was “none.” The court reinstated dependency, ordered the Agency to arrange visitation, and scheduled a section 366.26 hearing for May 28, 2008.
On March 21, 2008, John filed a petition for extraordinary writ pursuant to which he requests that this court direct the trial court to vacate the order setting the section 366.26 hearing. By order of this court filed April 2, 2008, the section 366.26 hearing scheduled for May 28, 2008, was temporarily stayed.
III. Discussion
A. The Writ Petition
A writ petition to review an order setting a section 366.26 hearing must comply with the requirements set forth in rule 8.452 of the California Rules of Court (rule 8.452) which states, among other things, that the petition must be accompanied by a memorandum. The memorandum must “state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority.” (Rule 8.452(b)(2).)
In the present case, John’s petition is accompanied by an attachment which is slightly longer than two pages in length. The attachment is divided into two “Addendum,” the first of which briefly summarizes the facts of this case. The second Addendum, which is called “Assignment of Errors,” is comprised of four short paragraphs describing the two grounds upon which John bases this petition. No separate memorandum of points and authorities has been supplied.
John’s first assignment of error is that the February 4, 2008, hearing was “fraught with procedural irregularities,” although he identifies only two: (1) the treatment of the December 2007 petition as a section 388 petition and (2) granting John leave to make an oral section 388 petition. John concedes he stipulated to these procedures, but contends that he is aware of no authority authorizing them. Therefore, John asserts that procedural errors “may have been a violation of due process.” As authority for this claim, John directs our attention to two cases which he does not discuss at all, In re Lance V. (2001) 90 Cal.App.4th 668 (Lance V.); and In re Nina P. (1994) 26 Cal.App.4th 615 (Nina P.), overruled in part by San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882.
John’s second assignment of error is that he may have been deprived of effective assistance of counsel. To support this contention, John makes the following argument: “Petitioner’s counsel is the author of this writ petition and believes, even in hindsight, that entering into the procedural stipulations described above resulted in a not unreasonable and expeditious resolution of the issues which were not quite properly before the Court. On the facts, Counsel has difficulty envisioning how a stubborn insistence that the Agency re-file and re-notice its petition on a new form would have served petitioner’s interest in the continued care, custody and companionship of his children. However, counsel acknowledges that he is not as clever or subtle as some of his colleagues at the Appellate bar. To the extent that counsel’s stipulation to irregular procedures deprived petitioner of due process, petitioner may have been deprived of effective assistance of counsel, and petitioner would preserve this as a ground for subsequent appeal of the Order setting the Permanency Planning Hearing.”
We are required to liberally construe this petition. (See rule 8.452(a)(2).) Nevertheless, we have serious doubts that John’s “Assignment of Errors” Addendum qualifies as the memorandum required by rule 8.452(b)(2). We strongly urge John’s counsel to review this court’s decision in Glen C. v. Superior Court (2000) 78 Cal.App.4th 570. In that case, we were presented with an “utterly deficient petition,” and our efforts to remedy the situation disclosed that petitioner’s counsel believed the petition had no arguable merit. (Id. at p. 583.) We noted, among other things, that filing a petition the attorney does “not believe to be ‘legal or just’ would violate the attorney’s professional obligation and would be frivolous.” (Id. at p. 584.) We also advised that “[i]n order to impress upon counsel the importance of adequate presentation of writ petitions that are filed, we herewith announce our general intention to, in the future, summarily deny petitions that fail to comply with [applicable requirements] as well as to take appropriate steps (e.g., report the conduct to the trial court or State Bar or initiate sanction proceedings, if appropriate) to deter repeated violations.” (Ibid.)
The petition before us, though perhaps not quite as bad as the Glen C. petition, is inadequate. Further, the tone of counsel’s argument certainly suggests he is not convinced any error occurred. Nevertheless, we will address this petition on the merits for the sake of these children, who are clearly entitled to an expeditious resolution of the matter.
B. Due Process
Initially, we reject John’s suggestion that he was somehow wronged because he was permitted to make an oral section 388 petition. This stipulated procedure could only have benefited him by affording him the opportunity to seek the return of the children to his care. The fact that John’s section 388 petition was denied cost him nothing since, as the court expressly advised, John was free to file another petition if and when he could produce evidence to support it.
With regard to the treatment of the Agency’s December 2007 petition as a section 388 petition, John has failed to demonstrate that this procedural ruling was erroneous. His sole contention is that he is unaware of any authority authorizing this procedure. Even absent statutory authority, courts have inherent power and wide discretion to “develop rules of procedure aimed at facilitating the administration of justice.” (In re Jeanette H. (1990) 225 Cal.App.3d 25, 34.) This is particularly true in dependency cases where “[j]uvenile courts are required to ‘control all proceedings with a view to the expeditious and effective ascertainment of the jurisdictional facts and of all information relevant to the present condition and welfare of the child.’ [Citation.]” (Id. at p. 36; see also Code Civ. Proc., § 187 [absent statutory directive, a court may adopt procedure which appears most conformable to the spirit of the law].)
Furthermore, even if John could show there was some procedural problem, he waived this claim of error. Not only did John fail to object in the trial court, he expressly stipulated to treating the petition as a section 388 petition. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] ‘The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.’ [Citations.] Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources ‘to address purported errors which could have been rectified in the trial court had an objection been made.’ [Citation.] In addition, it is inappropriate to allow any party to ‘trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.’ [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
In any event, the record before us affirmatively demonstrates that John was not deprived of due process. There is no dispute that John received notice of the petition and of the Agency’s recommendation. John also received notice of the February 2008 hearing, appeared at that hearing, and was afforded the opportunity to present evidence. The decision to treat the December 2007 petition as a section 388 petition did not alter the fundamental nature of this proceeding in any substantive way but simply relabeled the matter to more accurately reflect the true procedural posture of the case.
The two cases John cites in his petition only reinforce the conclusion that John’s due process rights were not violated here. In Nina P., supra, 26 Cal.App.4th 615, the juvenile court changed the permanent plan for a dependent child from long term foster care to guardianship notwithstanding that the Agency had not filed a section 388 petition. Another panel of this court found that “section 388 must be followed in all instances in which modification of a permanent plan is sought,” (Nina P., at p. 622), but it held that the failure to follow section 388 did not violate the parent’s due process rights in the case before it because she had actual notice of the requested change and ample opportunity to present evidence on the matter. (Nina P., at pp. 622-623.) In Lance V. supra, 90 Cal.App.4th 668, the appellate court found that a juvenile court erred by reducing a mother’s visitation when the Agency had not filed a section 388 petition for modification and that the mother’s due process rights to notice and an opportunity to be heard were violated because the juvenile court made the order without holding a properly-noticed hearing on the merits. (Lance V., at pp. 676-677.)
John’s citation to and reliance on Nina P. is also inappropriate as he fails to acknowledge that our Supreme Court has expressly rejected the Nina P. court’s conclusion that an interested party can seek modification of a permanent plan only by filing a section 388 petition. (See San Diego County Dept. of Social Services v. Superior Court, supra, 13 Cal.4th 882.)
In any event, unlike both Nina P. and Lance V., in the present case, the Agency did file a section 388 petition. That the petition was initially labeled as a section 300 petition does not alter the fact that it provided substantive notice of the need to establish a new plan for these children. Furthermore, even if there was something improper about deeming the December 2007 petition to be a section 388 petition, John had both notice and the opportunity to be heard. Thus, his due process rights were not violated.
C. Effective Assistance of Counsel
Johns’ second assignment of error is that his counsel’s stipulation to “irregular” procedures at the February 2008 hearing may have constituted ineffective assistance of counsel. To support this claim, John would have to show defective performance and prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.)
In his petition, John essentially concedes that his counsel did not perform deficiently because he provides a valid explanation for entering into the stipulation, i.e., that it was a reasonable and expeditious resolution of the issues, and that attempting to compel the Agency to re-file its petition on a new form would not have advanced John’s position. John also fails to carry his burden of proving prejudice. Apparently his sole contention in this regard is that he was prejudiced by the stipulation because it may have deprived him of due process. As already discussed above, John’s due process rights were not violated because his counsel stipulated that the title of the Agency’s petition could be changed to reflect its substantive content. Furthermore, when viewed as a whole, the stipulation benefited John because it permitted him to make his own request, pursuant to section 388, to change the children’s permanent plan by returning them to his care.
John states that he makes an ineffective assistance claim in this petition in order to preserve this issue for later review on appeal. We are perplexed by this statement. A party cannot appeal an order setting a section 366.26 hearing unless he has previously filed a timely writ petition which “substantively addressed the specific issues to be challenged and supported that challenge by an adequate record,” and that petition was “summarily denied or otherwise not decided on the merits.” (§ 366.26, subd. (l)(1)(A)-(C).) In the present case, despite the lack of substantive support for either of John’s claims of error, we reach the merits as to both and find neither a due process violation nor ineffective assistance of counsel.
D. Indian Child Welfare Act
Finally, we briefly address a request by the Office of the County Counsel which represents the Agency in this writ proceeding. That counsel seeks a “conditional reversal” of the February 4, 2008, order, and a remand so the juvenile court can determine whether the Agency has complied with the requirements of the Indian Child Welfare Act (25 U.S.C. § 1901, et seq.) (ICWA). County Counsel asks us to direct that, after remand for compliance with the ICWA, if it is established the children are not Indian children within the meaning of the ICWA, the February 2006 order is to be reinstated. (Citing In re Elizabeth W. (2004) 120 Cal.App.4th 900, 909 [pursuant to parents’ appeal, order terminating parental rights conditionally reversed in order to establish compliance with ICWA].)
We find that the issue of ICWA compliance is not properly before us in this writ proceeding. John has not raised this issue as a ground for relief and the Agency has not filed a writ petition in this court. “Opposition to a writ petition . . . may not raise new issues for review. To contest trial court rulings not challenged in a writ petition, a party must seek review by way of his or her own writ petition (in the nature of a cross-petition) or appeal.” (Eisenberg, et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) [¶] 15:227.5, p. 15-98.2 (rev. # 1, 2007), citing Campbell v. Superior Court (La Barrie) (2005) 132 Cal.App.4th 904, 922.)
Although we decline to rule on the question of ICWA compliance, we offer the following observations with respect to the ICWA requirement “that when the court knows or has reason to know an Indian child is involved, the agency must notify the child’s tribe, or if the tribe is unknown, the BIA, as agent for the Secretary of the Interior.” (In re X.V. (2005) 132 Cal.App.4th 794, 802.)
In the present case, the record demonstrates that, since Joselyn and J. M. were first taken into custody in February 2001, the Agency has consistently reported that the ICWA does not apply to these children. John has never disputed this assertion despite his appearances at numerous hearings during the past seven years. Furthermore, the Agency’s history with John dates back more than 18 years when his older children were court dependents in 1990 and there is absolutely no indication that John ever gave the Agency any reason to believe that the ICWA applies to his children.
However, on December 7, 2007, John’s present counsel filed a “Parental Notification of Indian Status” which John signed. On that form John or his counsel checked a box next to the statement: “I may have Indian ancestry.” The form does not identify a specific tribal affiliation. Nor does it contain any information which explains why John believes he “may have” Indian ancestry. Further, there is no evidence this notice was ever served on the Agency.
Apparently, County Counsel is concerned that John will attempt to use the ICWA and his December 7, 2007, notice, to further delay resolution of this case. Although we question the value of John’s belated and extremely vague statement, we share County Counsel’s concern and we urge the juvenile court to resolve the matter at or before the section 366.26 hearing.
IV. Disposition
The petition for extraordinary relief is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).) The temporary stay of the section 366.26 hearing is lifted and this case is remanded to the juvenile court for further proceedings consistent with this opinion.
We concur: Lambden, J., Richman, J.