In re M.G. CA4/2

Filed 7/15/21 In re M.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re M.G. et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E075247

Plaintiff and Respondent, (Super.Ct.Nos. J276040 & J276041
& J276042 & J276043 & J278394)
v.
OPINION
M.C.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace

and Steven A. Mapes, Judges. Affirmed.

Susan Lawrence, under appointment by the Court of Appeal, for Defendant and

Appellant.

Michelle D. Blakemore, County Counsel, David Guardado, Deputy County

Counsel, for Plaintiff and Respondent.

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 M.G. (Mother) appeals from the judgment establishing a legal guardianship for her

children E.G., Ma.G., I.G., Me.G., and E.C. (collectively, the Children) at a Welfare and

Institutions Code section 366.26 hearing.

Mother claims that (1) there was insufficient evidence to support the juvenile

court’s finding that Mother did not benefit from her services and that the Children could

not safely be returned to her custody at the 18-month review hearing; (2) there was no

substantial evidence that Mother was provided reasonable visitation; and (3) this court

should find good cause to excuse Mother from filing an extraordinary writ from the 18-

month review hearing; or in the alternative this court should not enforce the forfeiture

rule because the 18-month review hearing was fundamentally unfair so that an accurate

and just decision was not obtained.

FACTUAL AND PROCEDURAL HISTORY

A. DETENTION OF E.G., MA.G., I.G., AND ME.G

This family first came to the attention of San Bernardino County Children and

Family Services (Department) when it received a referral on February 9, 2018, regarding

inadequate medical and dental care being given to E.G. (a boy, born May 2008), Ma.G. (a

boy, born Sept. 2009), I.G. (a boy, born Oct. 2013), Me.G. (a girl, born Feb. 2017)

(collectively, older siblings).1

E.G., who was nine years old at the time, was still wearing diapers. He had only

been to the doctor one time. E.G. was afraid of the bathroom. E.G. reported that Mother

1 The father, Is.G. (Father) is not a party to the appeal.

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instigated domestic violence by attacking Father in front of the older siblings, and that he

had broken Mother’s methamphetamine pipe. Mother and Father (collectively, Parents)

were separated. Mother and maternal grandfather had gotten into a fight and maternal

grandfather slapped Mother. I.G. had four black teeth and had not received proper dental

care.

A second referral was received on February 13, 2018, reporting that Ma.G. had

cracked a tooth and it had not been fixed. Older siblings reported that they were not fed

prior to going to school.

A social worker went to the home of maternal grandparents where Mother and the

older siblings were living. The house was clean and had no visible hazards. Mother

advised the social worker that she and Father were getting a divorce. She admitted acts

of domestic violence but the older siblings had not been hurt. She did not have the

money to get I.G.’s or Ma.G.’s teeth fixed and Father provided no financial assistance.

Maternal grandmother told the social worker she had no concerns about Mother. Mother

did not use drugs and took care of the older siblings. She would assist Mother in getting

dental care for I.G. Mother assured the Department she would get I.G.’s teeth fixed and

she agreed that E.G. may need counseling to address his encopresis. I.G. told a social

worker he had seen Parents fight. Ma.G. claimed he had not witnessed any domestic

violence.

Mother was a no-show for a drug test on April 3, 2018. Paternal grandparents

were contacted. On April 27, 2018, a meeting was conducted with Father, paternal

grandmother and Me.G. Mother had left Me.G. in the care of paternal grandparents and

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had not returned. Paternal grandmother reported that Mother would leave for days and

maternal grandparents would care for the older siblings. Father admitted to domestic

violence charges from 2017 and 2018. Mother claimed she had been kicked out of

maternal grandparents’ home but older siblings were still in the home. Maternal

grandfather denied that he kicked Mother out of the home. Mother was a no-show for

drug testing again on May 1, 2018.

On May 2, 2018, Mother went to the home of maternal grandmother and told her

that the social worker from the Department was lying and that Mother was doing

everything she was supposed to be doing. I.G. had been scheduled for a dental

appointment but Parents failed to take him to the appointment.

A meeting was conducted on May 3, 2018, at the Department’s office. Mother

admitted she was using methamphetamine and marijuana. It was determined that the

older siblings would be detained with paternal grandparents. The older siblings could not

be placed with maternal grandparents because Mother lived in the home. She stated she

would move out but had nowhere to stay. The social worker was concerned that maternal

grandmother covered for Mother and would not keep Mother from the older siblings.

Ma.G. disclosed he had witnessed domestic violence between Parents. He had not said

anything prior because he did not want Parents to get in trouble.

On May 7, 2018, the Department filed Welfare and Institution Code2 section 300

petitions against Parents for older siblings. A failure to protect was alleged against

2 All further statutory references are to the Welfare and Institution Code unless
otherwise indicated.

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Parents pursuant to section 300, subdivision (b), based on substance abuse, failing to

provide adequate medical care, and engaging in domestic violence. It was alleged against

Parents for Me.G. and Ma.G. that they failed to obtain adequate dental care for I.G. and

medical care for E.G. This posed a risk to their siblings. It was alleged against Parents

for I.G., that they had failed to obtain adequate medical and psychological care for E.G.

(§ 300, subd. (j)). It was alleged against Parents for E.G. that they failed to provide

adequate care for I.G. (§ 300, subd. (j)). Supervised visitation was recommended for

Mother one time each week for two hours.

The detention hearing for the older siblings was held on May 8, 2018. Older

siblings remained detained with paternal grandparents. Supervised visitation was for a

minimum of one time each week for two hours with authority to the Department to

increase frequency and duration.

B. JURISDICTION/DISPOSITION REPORTS AND HEARING ON

SECTION 300 PETITIONS FOR OLDER SIBLINGS

A jurisdiction/disposition report was filed on May 24, 2018, for older siblings’

section 300 petitions. It was recommended that the allegations in the section 300

petitions be found true and that older siblings remain detained. Mother should be granted

reunification services. Older siblings were happy and adjusting to paternal grandparents’

home.

Mother was interviewed on May 22, 2018. She felt some of the allegations in the

detention report were untrue. She always properly fed the older siblings. She only

occasionally used methamphetamine and marijuana. She used marijuana to relax and

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only used methamphetamine “ ‘when people piss[ed her] off.’ ” She acknowledged the

domestic violence but she and Father were getting divorced. Mother was not working.

The Department provided information that on February 14, 2018, when the

Fontana Police Department investigated the reports of child neglect, Mother admitted to

using methamphetamine and that she was addicted to the substance.

The matter was sent to mediation. According to the mediation report, Parents

agreed to submit on the section 300, subdivision (b), allegations and the subdivision (j),

allegations as alleged, as to I.G. only. The Department agreed to dismiss the section 300,

subdivision (g), allegations and the section 300, subdivision (j), allegations pertaining to

inadequate medical care for E.G. Older siblings would remain with paternal grandparents

and supervised visitation would be one time each week for two hours.

The jurisdiction/disposition hearing was conducted on June 22, 2018. Mother

waived her rights and submitted on the section 300 petitions as agreed at mediation.

Reunification services were ordered for Mother. Visitation was ordered for two hours

each week with the Department authorized to liberalize visitation as to frequency and

duration. Wraparound services were provided for E.G. effective July 31, 2018, and for

Ma.G. effective October 2, 2018.

C. DETENTION OF E.C.

Mother had been attending a substance abuse program in 2018 while she was

pregnant with E.C. (a boy, born October 2018). Father was helping Mother care for E.C.

but they were not living together. Mother was living with the maternal grandparents.

Mother was allowed to keep custody of E.C. but Father was not to have any contact with

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E.C. Mother had been doing well in her domestic violence therapy. On October 17,

2018, a family planning meeting was held. Mother had moved in with a paternal aunt

who agreed to help with E.C.

On October 29, 2018, the Department filed a section 300 petition for E.C. Father

was named alleged father of E.C. The petition alleged pursuant to section 300,

subdivision (b), failure to protect, that Mother had a history of substance abuse, and had a

history of engaging in domestic violence. It was further alleged pursuant to section 300,

subdivision (j), that older siblings had been detained from Mother due to her substance

abuse and domestic violence and Mother had not completed her reunification services.

At the detention hearing on October 30, 2018, E.C. was removed from Father’s custody

but remained in Mother’s custody.

An amended section 300 petition was filed on November 9, 2018, for E.C. E.C.

had been detained from Mother and had been placed with paternal grandparents. The

allegations in the amended petition remained the same. On November 9, 2018, Mother

moved out of paternal aunt’s home and into a sober living home with E.C. but then she

was removed from the sober living home for failing to follow program rules. Mother

moved back in with maternal grandparents. Further, Mother had been terminated from

individual therapy based on only attending one session. At the detention hearing for

E.C., the juvenile court ordered E.C. remain out of Mother’s custody and he was placed

with paternal grandparents. Visitation was ordered to be one time each week for two

hours, supervised.

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 D. JURISDICTION/DISPOSITION REPORT FOR E.C.

The jurisdiction/disposition report for E.C. was filed on November 20, 2018.

Reunification services were recommended for Mother. The Department was concerned

about Mother living with maternal grandparents as Mother continued to fight with

maternal grandfather. Mother was trying to enroll in another substance abuse program.

E.C. was placed with the older siblings. A paternity test showed that Father was E.C.’s

biological father.

The hearing was held on December 4, 2018. Mother testified. She had been

removed from the sober living facility for taking pain medication and posting a video

online while in the facility. She had no positive drug tests. She then moved back in with

maternal grandparents. She was still planning to divorce Father. She was attending a

new outpatient drug treatment program and had been sober throughout her pregnancy.

She wanted E.C. to remain in her custody. The juvenile court found the allegations in the

section 300 petition true. E.C. was to remain in paternal grandparents’ custody. Mother

had exercised bad judgment and seemed to minimize the issues in the case. Reunification

services were granted to Mother and visitation was to be supervised one time each week

for two hours. Mother was advised that she could seek appellate review if she disagreed

with the orders of the juvenile court and would need to file a notice of appeal within 60

days.

E. STATUS REVIEW REPORTS FOR CHILDREN

A six-month status review report was filed for older siblings on December 19,

2018. It was recommended that older siblings remain in the home of paternal

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grandparents and that reunification services for Mother be continued. I.G. and Ma.G.

both had their teeth fixed. E.G. continued to wear diapers but was making efforts to use

the restroom. There was no medical reason for his inability to control his bladder.

Paternal grandmother reported that the Children were doing well in the home and in

school. They were benefitting from Wraparound services.

Mother had four negative drug tests in August and September 2018. There were

no additional updates although Mother was participating in domestic violence and

parenting classes. Visitation with Mother and older siblings had mostly been appropriate.

During one visit, at which paternal grandmother transported the older siblings to maternal

grandparents’ home, older siblings were uncomfortable because Mother and maternal

grandfather were arguing. E.G. and Ma.G. no longer wanted to visit Mother in maternal

grandparents’ home. During visits, Mother played with older siblings and displayed

appropriate limit settings. Mother had moved out of maternal grandparents’ home and

did not have stable housing. The trial court continued reunification services and added

“authority for unsupervised visits for parents. Any overnights, weekends, and return by

approval packet.”

On February 19, 2019, the Department submitted a progress report from Mother’s

therapist. Mother was not consistent in attending therapy sessions; she attended five out

of eight sessions. Mother had trauma in her childhood. She was reported as being

suicidal and had impulse control problems. The therapist opined Mother’s mental health

difficulties may be a result of substance abuse. The therapist recommended an additional

eight sessions and a full psychological examination, which the juvenile court approved.

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 On May 29, 2019, the Department filed the 12-month status review report for

older siblings. The Department recommended older siblings remain in the home of

paternal grandparents and that family reunification services continue.

Mother had enrolled in an alcohol and drug treatment program but had been

removed from the program for refusing to random drug test on April 3, 2019. She also

admitted using methamphetamine on February 5, 2019, and tested positive on that day.

On February 22 and March 13, 2019, she refused to drug test. She enrolled in her third

drug and alcohol program on April 4, 2019. The Department did not have the results of

Mother’s psychological exam. E.G. still required medical attention for his encopresis.

Ma.G. had been diagnosed with Attention Deficit Disorder. I.G., Ma.G. and E.G. had

become more aggressive but Wraparound services were helping them. E.C. moved into

paternal grandparents’ home in November 2018.

Mother regularly visited with the Children. Mother made paternal grandmother

uncomfortable so visits were supervised at the Department offices. Mother held E.C. and

Me.G., and talked to E.G., I.G. and Ma.G. while they played with toys. Mother had

completed her parenting and domestic violence classes. The juvenile court continued

Mother’s reunification services. Wraparound services were ordered for I.G.

On May 28, 2019, the Department filed a six-month status review report for E.C.

It was recommended reunification services be continued and that E.C. remain in paternal

grandparents’ home. The Department provided the same information as in the older

siblings’ 12-month status review report including the February 4, 2019, therapy update.

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E.C. was healthy and developing normally. On June 5, 2019, the juvenile court

continued reunification services.

The Department filed its 18-month status review report for older siblings on

October 28, 2019, recommending that reunification services be terminated and that the

section 366.26 hearing be set to establish a permanent plan of guardianship. Mother had

completed her parenting class, domestic violence class and a psychological evaluation.

Mother had been discharged from a third drug and alcohol treatment program on June 4,

2019, because she failed to consistently attend the program. She was allowed to reenroll

in the program, but a progress report submitted to the Department on September 23,

2019, showed that she was still not consistent in attending. She had negative drug tests in

August and September 2019. Mother was attending therapy. Mother was making “some

progress” toward reaching her goals. She was sharing her feelings in a more natural way

and was demonstrating more stability. The psychological evaluation was included with

the report. The social worker was attempting to obtain an updated report from Mother’s

therapist.

E.G. was still wearing diapers but had been referred to specialists to determine if

he had a medical issue that could resolve the problem. E.G. got into verbal altercations

and would hit his siblings, and would use foul language, but he was getting better with

Wraparound services. I.G. had become more aggressive but was working with

Wraparound services to control his behavior.

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 Paternal grandparents were willing to be the legal guardians of the Children.

Mother was consistent in visitation with the Children. Mother was living with maternal

grandparents; E.G. and Ma.G. expressed concern about living with Parents.

Mother’s psychological examination was conducted on April 2, 2019. Mother was

31 years old. She had no reports of any abuse or problems in her childhood. She

dropped out of high school in 12th grade and had been employed sporadically due to

being pregnant or caring for her children. Mother occasionally used marijuana but had

not used in two years. She started using methamphetamine regularly when she was 29

years old and had last used two weeks prior to the evaluation. She denied any mental

health issues; she was not depressed. Mother had been with Father since she was 17

years old. When Mother was 27 years old, with three children, Father had employment

problems and cheated on her. In 2017, Father beat her, giving her a black eye. Father

continued to beat her and cheat on her despite her becoming pregnant with their fourth

child. She admitted hitting and kicking him in the past.

The evaluator concluded that Mother suffered from mild depression. She had

some indication of “Dependent Personality Traits” as she had a history of dependency on

others. She continued to engage in impulsive drug use when faced with stressors.

Mother should continued to participate in therapy where she could be taught effective

ways to manage these stressors without drug use, and to address her continued

relationship with Father despite domestic violence. She had no real plan for how she

would care for five children on her own. The evaluator concluded, “the same level of

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risk that existed to the children prior to the involvement of [the Department] remains at

the current time.”

On October 28, 2019, the Department provided additional information to the

juvenile court, including the therapist’s report dated July 31, 2019, which showed that

Mother had attended 20 out of 20 sessions between September 2018 and August 2019.

Mother was motivated and engaged at counseling and she was making good progress.

Mother had completed parenting classes, domestic violence classes and her therapy

sessions. “Her behavior and insight have been remarkable.” She was stable both

mentally and functionally and she insisted she was not abusing controlled substances.

On November 1, 2019, at a section 366.22 hearing for the older siblings, the 18-

month review hearing was set contested. Mother’s counsel reported that Mother had

completed 20 weeks of counseling and had completed a drug and alcohol program.

Mother was authorized to have unsupervised visits.

On November 18, 2019, the Department filed a 12-month status review report for

E.C. It recommended that reunification services for Mother be terminated and that a

section 366.26 hearing be set with a permanent plan of legal guardianship with paternal

grandmother. The Department again reported that Mother had trouble being consistent in

her substance abuse treatment. The Department also reported the progress Mother had

made in therapy and included the psychological evaluation. E.C. was happy in paternal

grandmother’s home. Mother was appropriate during visits with E.C. She played with

him, fed him and changed his diaper.

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 The certificate dated October 31, 2019, showing that Mother had completed a drug

and alcohol treatment program was provided to the juvenile court along with the 12-

month status review report.

On November 18, 2019, additional information was provided by the Department

for older siblings. Paternal grandmother reported that Mother had three unsupervised

visits with the Children. E.G. reported to paternal grandmother that during the visit

Mother continuously asked him about Father, which made him uncomfortable. Father

also had given E.G. and Ma.G. cellular telephones and Mother called them three times

each day. Mother tried to call them during school hours. Mother had called E.G. at 1:00

a.m. On November 16, 2019, Mother called several times and was told by E.G. and

Ma.G. they could not talk to her at that time. Mother then texted paternal grandmother

asking to speak with E.G. and Ma.G, and threatened to call the police. E.G. was worried

that the police were going to come to paternal grandparents’ house.

E.G. advised a social worker he was uncomfortable during visits with Mother

because she asked about Father. Mother asked if Father was living with paternal

grandparents, which E.G. denied. Mother did not believe him. E.G. was worried that

paternal grandmother was going to jail. E.G. did not feel safe with Mother because “she

acts weird and she gets into bad moods.” Ma.G. reported Mother called him all the time.

When asked if he felt safe visiting with Mother alone, he responded “I don’t know. Yes.”

Mother was living in maternal grandparents’ home but maternal grandparents had moved

out. Mother did not believe calling E.G. and Ma.G. three times each day was excessive.

She denied she asked E.G. about Father and also denied calling E.G. at 1:00 a.m.

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 The Department was concerned that despite Mother completing her education

classes and counseling she was still a danger to the Children. The Department

recommended that someone from Mother’s family be present during visits.

The 18-month status review hearing for older siblings was held on November 19,

2019. Mother was present and testified. Mother insisted she had finished her case plan

and found a place to live. She completed her drug and alcohol treatment two weeks prior.

Mother had tried to drug test the day before but had not been in the system. She had been

consistent in visitation and she believed the Children wanted to return to her care. They

cried at the end of visits and wanted to go home with her.

Mother denied constantly asking about Father during visits. She had cut down

calling E.G. and Ma.G. to two times a day. She denied calling during school hours and

that she threatened to call the police on paternal grandmother. The call at 1:00 a.m. to

Ma.G. was probably a “butt” dial. Paternal grandmother sometimes made her feel that

she was a bad mom. She did not plan to reunify with Father.

Mother’s counsel objected to the setting of the section 366.26 hearing. The

Children should be returned to Mother’s care. Mother loved the Children and was able to

care for them. The Department argued that despite Mother appearing to have completed

her case plan, she had not benefitted from services. Mother’s therapist had noted in a

November 1 update that Mother had frequent mood swings and had some instability.

Mother testified that “everyone lies” about her. Older siblings had reported being

uncomfortable with unsupervised visits. Further, Mother’s information was, in fact, in

the system to allow her to be drug tested.

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 The juvenile court terminated Mother’s reunification services for older siblings

and set the section 366.26 hearing with a permanent plan of legal guardianship with

paternal grandparents. The juvenile court noted the last therapist’s report showed Mother

had not benefitted from services. Mother’s perception was much different than others.

Visitation continued supervised one time each week. Mother was advised of her right to

file a writ petition.

The 12-month status review hearing for E.C. was held on November 20, 2019.

Mother was not present at the hearing. The juvenile court found Mother failed to

complete her court-ordered case plan. Mother’s counsel requested the matter be set

contested. The juvenile court stated that Mother had been present at the hearing the prior

day involving older siblings; it had heard Mother’s testimony and the testimony was

“unconvincing.” Further, since E.C. was only one year old, there was even more need for

permanency. The juvenile court wanted to hear the matter immediately. Mother’s

counsel noted the report did not reflect that Mother had completed a drug and alcohol

program. The juvenile court disagreed and noted that the information had been provided.

Mother’s counsel also noted Mother had appropriate housing, which had not been

assessed. Mother’s counsel argued that reunification services should not be terminated.

Minor’s counsel agreed with the recommendations of the Department. The psychological

evaluation was concerning in that Mother was not capable of caring for E.C. The

Department agreed that Mother was not benefitting from her services. Further, Mother

had been granted unsupervised visits but they were changed back to supervised.

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 The juvenile court noted it would do the same as it had done with the older

siblings. The testimony of Mother for E.C. would be the same as it was for the older

siblings. Reunification services were terminated and a section 366.26 hearing was to set

to be held at the same time as the older siblings’ hearing. Visitation continued one time

each week for two hours.

On November 27, 2019, Mother filed a notice of intent to file a writ petition to

contest the finding at the 12-month review hearing for E.C. and the 18-month review

hearing for older siblings. No writ petitions were filed.

F. SECTION 366.26 REPORT

A combined section 366.26 report for the Children was filed on March 11, 2020.

It was recommended that paternal grandparents be appointed legal guardians and the case

be dismissed. Paternal grandparents believed that legal guardianship was the most

appropriate plan. Mother was regularly visiting with the Children. If Mother failed to

consistently visit, paternal grandparents would seek adoption.

Older siblings had no significant medical issues. E.G. still had uncontrolled

urination and bowel movements. No medical problem had been discovered and it was

believed emotional issues prevented him from going to the restroom. He would receive

continued medical care. The Children were developing normally. Mother had visits with

the Children two or three times each month supervised by the paternal grandparents. The

visits were appropriate. Visitation with Mother was recommended to continue.

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 G. SECTION 366.26 HEARING

The section 366.26 hearing was held on June 17, 2020. Mother’s counsel

requested that the section 366.26 hearing be set for trial so Mother could testify. The

juvenile court noted that the recommendation was legal guardianship and asked what

Mother would be testifying to. Mother’s counsel responded that Mother wanted the

Children returned to her care and she objected to the legal guardianship. The juvenile

court responded, “Well since return is not an issue at a .26 hearing I’m going to deny that

request.”

The juvenile court appointed paternal grandparents the legal guardians of E.C. and

the older siblings. Mother was granted visitation a minimum of two times each month for

two hours. The case was closed.

Mother filed a notice of appeal on June 23, 2020. She did not state from which

order she was appealing.

DISCUSSION

Mother claims insufficient evidence was presented at the section 366.22 review

hearings to support that returning older siblings and Evan to her care would create a

substantial risk of detriment to the safety or well-being of the children, and that she did

not benefit from her services. The trial court also failed at the review hearings to make a

specific finding that reasonable services had been provided to her, including whether she

received reasonable visitation. The juvenile court should not have set the section 366.26

hearing. As acknowledged by Mother, such claims are not reviewable from an appeal of

a section 366.26 hearing. Mother was required to seek relief through the filing of an

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extraordinary writ pursuant to section 366.26, subdivision (l), and she did not file such

writ. Mother insists there is good cause to excuse her failure to file an extraordinary writ

as she should have been given an opportunity to file the writ petition in propria persona

once counsel determined that there were no factual or legal issues upon which to base a

writ petition. Further, she should be excused from failing to file a writ petition because

the 12-month and 18-month status review hearings for the children were fundamentally

unfair because the social worker had a conflict of interest and Mother received ineffective

assistance of counsel (IAC).

A. FAILURE TO FILE WRIT PETITION

A party may not, through an appeal of the most recent dependency order,

challenge a prior order for which the statutory time for a notice of appeal has expired. (In

re Liliana S. (2004) 115 Cal.App.4th 585, 589; see also In re Meranda P. (1997) 56

Cal.App.4th 1143, 1150 [“an unappealed disposition or postdisposition order is final and

binding and may not be attacked on an appeal from a later appealable order”].) “The rule

serves vital policy considerations of promoting finality and reasonable expedition, in a

carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’

through a parent’s attacks on earlier orders.” (In re Jesse W. (2001) 93 Cal.App.4th 349,

355.)

“A setting order is not appealable; direct appellate consideration of the propriety

of the setting order may be had only by petition for extraordinary writ review of the

order.” (In re Cathina W. (1998) 68 Cal.App.4th 716, 719, fn. omitted (Cathina W.); see

§ 366.26, subd. (l).) This writ requirement is implemented by the California Rules of

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Court, rules 8.450 and 8.452. (In re A.A. (2016) 243 Cal.App.4th 1220, 1239-1240

(A.A.).) “Failure to file a petition for extraordinary writ review within the period

specified by rule, to substantively address the specific issues challenged, or to support

that challenge by an adequate record shall preclude subsequent review by appeal of the

findings and orders made pursuant to this section.” (§ 366.26, subd. (l)(2).)

“ ‘When the court orders a hearing under Welfare and Institutions Code section

366.26, the court must advise all parties and, if present, the child’s parent, guardian, or

adult relative, that if the party wishes to preserve any right to review on appeal of the

order setting the hearing under Welfare and Institutions Code section 366.26, the party is

required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and

Request for Record (California Rules of Court, Rule 8.450) (form JV–820) or other

notice of intent to file a writ petition and request for record and a Petition for

Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV–825) or

other petition for extraordinary writ.’ ” (A.A., supra, 243 Cal.App.4th at p. 1240.)

“The courts have consistently held that when a parent is not properly advised of

his or her right to challenge the setting order by extraordinary writ, and consequently the

parent does not timely file a writ petition, good cause exists to consider issues relating to

the setting hearing in an appeal from the order terminating parental rights.” (In re A.A.,

supra, 243 Cal.App.4th at p. 1235; see In re Cathina W., supra, 68 Cal.App.4th at pp.

722-725.)

Here, Mother was present at older siblings’ 18-month review hearing at which the

juvenile court set the section 366.26 hearing. Mother was advised of the requirement to

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file a writ petition if she did not agree with the findings at the hearings. She was not

present at E.C.’s 12-month review hearing but was sent notice by mail of her requirement

to file a writ. Mother’s counsel filed a notice of intent to file writ petition on November

17, 2019, for both E.C. and the older siblings. Mother’s counsel sent a letter to this court

on January 6, 2020, advising that she had carefully reviewed the factual and legal issues

and determined that there were no grounds to file a writ petition pursuant to California

Rules of Court, rules 8.450 and 8.452.

As such, the failure by Mother to file the writ petition bars consideration of the

issues raised by Mother on appeal. Her claims that insufficient evidence was presented to

support the juvenile court’s decision that it would be a detriment to return the Children to

her care, that she had not benefitted from her services, and that she had not been afforded

reasonable reunification services, and the court’s ultimate decision to set the section

366.26 hearing, are not cognizable.

B. GOOD CAUSE FOR FAILURE TO FILE WRIT PETITION

Mother insists there is good cause for her failure to file a writ petition as her trial

counsel did not give her notice that counsel had decided not to file the writ petition; and

this court should create a new rule that Mother should be notified and afforded the

opportunity to file her own writ petition.

California Rules of Court, rule 8.450(c) provides in pertinent part that “petitioner’s

trial counsel, or in the absence of trial counsel, the party, is responsible for filing any

notice of intent and writ petition under rules 8.450-8.452.” Here, a notice of intent to file

writ petition for the Children was filed on November 17, 2019, by Mother’s trial counsel.

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Thereafter, counsel for Mother, the same counsel present at the 18-month review hearing,

notified this court that such writ petition would not be filed as no factual or legal issues

existed to support filing the writ.

Mother’s counsel did not have an obligation to file a writ petition. “[I]t is

incumbent upon counsel who participate in dependency cases to advocate their clients’

positions fully and effectively. This does not mean that counsel should file a . . . petition

in every case, or in every case in which the client has filed a notice of intent to file such a

petition. To the contrary, an attorney is required to maintain only such actions or

proceedings ‘as appear to him or her legal or just.’ ” (Glen C. v. Superior Court (2000)

78 Cal.App.4th 570, 582 (Glen C.).) In other words, “[W]hen an attorney evaluates a

case and determines there is no potentially meritorious issue to be raised, a petition for

extraordinary writ simply should not be filed.” (Id. at p. 584, italics added.)

We must conclude on this record that Mother’s counsel properly determined that

filing a writ petition was not warranted under the facts of the case. As stated, without the

filing of the writ petition, Mother cannot contest the findings at the 18-month and 12-

month review hearings.

Mother contends that this court should conclude that when trial counsel

determines a writ should not be filed, a parent should have the opportunity to file the writ

petition in propria persona within the 10-day limitation period. Mother acknowledges

that there is no case law supporting such a rule.

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 We decline to impose such a rule. While there are no cases directly on point

addressing the filing of an in propria persona writ petition once counsel has decided that a

writ petition should not be filed, there is support in other analogous cases for this court’s

determination that Mother is not entitled to such opportunity.

In Glen C., supra, 78 Cal.App.4th 570, an inadequate writ petition was filed by the

father of minors and he argued on appeal that the appellate court should independently

review the record for possible errors. The court held, “Independent review along the

lines of Anders v. California (1967) 386 U.S. 738 [] and People v. Wende (1979) 25

Cal.3d 436 [] would impose an extraordinary burden on the courts [citation] and is not

required by either constitutional principle or policy for appeals from orders adversely

affecting child custody or parental status (In re Sade C. (1996) 13 Cal.4th 952 []). Sade

C. determined that Anders review, which is prophylactic in nature, is constitutionally

required only for a criminal defendant represented by appointed counsel on his or her first

appeal of right. [Citation.] Weighing the factors identified in Lassiter v. Department of

Social Services (1981) 452 U.S. 18, 27 [], in the context of dependency appeals—and

stressing the presumptive accuracy and justness of the decision appealed from—the court

found the private interests of the parent and child ‘fundamental’ and ‘compelling,’ but

presumptively inconsistent; the interest of the state in the child’s welfare and in accurate

and just resolution of the parent’s appeal ‘compelling’ and ‘important,’ and its interest in

reducing the cost and burden of the proceedings ‘legitimate’; and the risk of error from

absence of Anders review ‘negligible.’ ” (Id. at p. 579.) The court concluded “Certainly

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parents in these proceedings have no constitutional right to Anders/Wende review.” (Id.,

at p. 580.)

Further, in In re Phoenix H. (2009) 47 Cal.4th 835, mother’s parental rights to her

two sons were terminated. Her counsel on appeal filed an opening brief setting forth the

procedural facts and history of the case but presented no arguable issues. Appellate

counsel requested that the Court of Appeal independently review the record on appeal to

determine if reversable errors were made. In addition, counsel requested that the

appellate court give mother the opportunity to file her own supplemental brief. (Id. at p.

838.) The Court of Appeal declined to allow the filing of a brief by the mother and the

California Supreme Court granted review. The California Supreme Court concluded,

“the Court of Appeal is not required to permit the parent to file an additional brief absent

a showing of good cause.” (Id. at p. 843.) It determined as such, surmising “The delay

that would ensue from requiring the Court of Appeal to permit an indigent parent to

personally file a brief after appointed counsel has determined there are no arguable

issues, absent a showing of good cause, would not be justified by an increase in fairness

or accuracy of the proceedings.” (Id. at p. 844.)

Here, Mother’s counsel attested to this appellate court that she had carefully

reviewed the record and found no factual or legal issues on which to base the

extraordinary writ. Based on such finding, counsel did not file the writ and the matter

was dismissed. We decline to find that Mother should have been afforded the

opportunity to file a writ in propria persona. Like the court in Glen C. declined to

independently review the record for error when counsel filed a no issue writ, and the

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court in In re Phoenix H. declined to allow the mother to file a supplemental brief

without good cause, we also decline to impose a rule that when counsel does not file a

writ finding there are no issues properly raised in a writ, a parent is entitled to file his or

her own writ as such review is not constitutionally mandated and would overburden the

courts.3

Mother also appears to claim that she received IAC due to her counsel’s failure to

file the writ petition. Mother surmises that it is “doubtful” counsel reviewed Mother’s

last counseling report prior to informing this court she would not be filing a writ petition.

Counsel should have filed a writ petition to address that the juvenile court failed to

properly address Mother’s final therapist’s report.

“We address a claim of [IAC] in the dependency context by applying a two-part

test. In the first step, we examine whether trial counsel acted in a manner expected of a

reasonably competent attorney acting as a diligent advocate. If the answer is no, we

move to the second step in which we examine whether, had counsel rendered competent

service, the outcome of the proceeding would have been more favorable to the client.”

(In re Ana C. (2012) 204 Cal.App.4th 1317, 1329-1330.) We reverse for IAC “only if the

record on appeal affirmatively discloses that counsel had no rational tactical purpose for

his [or her] act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

3Mother’s counsel at oral argument briefly referenced a miscellaneous order that
supported her position but such argument was not raised in the briefing and will not be
addressed by this court.

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 Here, the record is silent as to the specific reasons Mother’s counsel did not file

the writ petition. Mother’s counsel stated that she had reviewed the record and

determined that there was no factual or legal basis for filing the writ petition. Based on

the appellate record, we must presume Mother’s counsel reviewed the record as stated,

which indisputably included Mother’s final therapist’s report, but also included Mother’s

psychological evaluation and an update on the visits between her and the older siblings.

The record does not support that Mother’s counsel simply ignored the records in this case

in deciding not to file the writ petition.

As stated, it was incumbent upon Mother’s counsel, if she determined that there

were no meritorious issues to be raised, to not file the petition. (Glen C., supra, 78

Cal.App.4th at p. 582.) Based on the record, Mother’s counsel could have reasonably

determined that a writ petition should not be filed. Without any further evidence in the

record that Mother’s counsel failed to review the record or relied on improper records,

Mother cannot establish an IAC claim on appeal on the grounds that counsel should have

filed a writ petition.

C. FUNDAMENTALLY UNFAIR REVIEW HEARING

Mother additionally claims that this court should review her claim by finding an

exception to the waiver rule because the review hearings were fundamentally unfair

based on (1) the social worker had a conflict of interest and worked against her; and

(2) her counsel was ineffective because she failed to adequately prepare for the review

hearings.

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 As we have stated, “The [waiver] rule serves vital policy considerations of

promoting finality and reasonable expedition, in a carefully balanced legislative scheme,

and preventing late-stage ‘sabotage of the process’ through a parent’s attacks on earlier

orders.” (In re Jesse W., supra, 93 Cal.App.4th at p. 355.) As explained in In re M.F.

(2008) 161 Cal.App.4th 673, “The waiver rule balances the interest of parents in the care

and custody of their children with that of children in expeditiously resolving their custody

status. [Citation.] In most instances, a parent’s due process interests are protected

despite the application of the waiver rule because the dependency system has numerous

safeguards built into it to prevent the erroneous termination of parental rights. [¶] But,

the waiver rule will not be applied if ‘ “due process forbids it.” ’ ” (Id. at pp. 681-682.)

There are exceptions to the waiver rule. “First, there must be some defect that

fundamentally undermined the statutory scheme so that the parent would have been kept

from availing himself or herself of the protections afforded by the scheme as a whole.

Lack of notice of [the right to file a writ petition] was one such example in Cathina W.

Second, to fall outside the waiver rule, defects must go beyond mere errors that might

have been held reversible had they been properly and timely reviewed. To allow an

exception for mere ‘reversible error’ of that sort would abrogate the review scheme

[citation] and turn the question of waiver into a review on the merits.” (In re Janee J.

(1999) 74 Cal.App.4th 198, 208-209 (Janee J.).)

Mother has presented no defect that fundamentally undermined the statutory

scheme so that she was prevented from availing herself of the protections afforded by the

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scheme as a whole. Mother admits she was advised of her right to file a writ petition.

We have rejected her claim of IAC in failing to file a writ petition.

Mother insists that the social worker had a conflict of interest and worked against

her. Mother claims the social worker determined during the reunification period that it

was best for the Children to be placed in a legal guardianship with the paternal

grandparents; the social worker failed to properly investigate the domestic violence

allegations; and failed to timely obtain Mother’s progress reports in therapy. Further, the

social worker failed to properly update the reports submitted to the juvenile court.

Although Mother claims that this resulted in the proceedings being fundamentally unfair,

as we have set forth at length in our procedural and factual history, the Department

submitted all of the reports from Mother’s therapist and a psychological evaluation. The

Department recommended on two occasions that Mother be granted additional

reunification services. Mother simply is attempting to avoid the waiver of her claims by

raising “errors that might have been held reversible had they been properly and timely

reviewed” but do not entitle her to escape the waiver rule. (Janee J., supra, 74

Cal.App.4th at pp. 208-209.)

Mother further attempts to avoid the waiver rule by claiming that her counsel at

the 18-month and 12-month review hearings was ineffective because it was clear she was

unprepared. Such ineffective assistance of counsel rendered the review hearings

fundamentally unfair. “[L]ate consideration of [IAC] claims defeats a carefully balanced

legislative scheme by allowing a back-door review of matters which must be brought for

appellate review by rule [8.450] writ at the setting hearing stage or by earlier appeals, that

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is, before the point is reached where reunification efforts have ceased and the child’s

need for permanence and stability become paramount to the parent’s interest in the

child’s care, custody and companionship.” (Janee J., supra, 74 Cal.App.4th at p. 208.)

Mother’s IAC claim is merely an attempt to raise a claim that should have been

raised in a writ petition or at the 18-month review hearing. Mother complains that her

counsel was not prepared for the hearing and did not protect her rights. She insists that

counsel did not read the updated report from Mother’s therapist and was not prepared at

the review hearings.

Initially, if Mother had been concerned at the 18-month review hearing that her

trial counsel was not pursuing her interests, she could have asked for new counsel. (See

In re V.V. (2010) 188 Cal.App.4th 392, 398 [juvenile courts allow “parents, who have a

statutory and a due process right to competent counsel, to air their complaints about

appointed counsel and request new counsel be appointed”].) Mother remained silent

regarding her counsel at the 18-month review hearing and did not attend the 12-month

review hearing the following day for E.C. Mother expressed no concern with her

counsel’s performance at the review hearings.

Further, Mother’s claim that counsel was not prepared and did not review the

record is not supported by the record on appeal. Mother acknowledges that the

Department provided the final therapist’s report to the juvenile court on October 28,

2019, in which it was reported that Mother had attended all of her therapy sessions and

was making good progress and her “behavior and insight have been remarkable.” At the

18-month review hearing, Mother’s counsel vigorously argued that Mother had

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completed all of her case plan, including her therapy, which warranted return of the

Children to her care. The Department had submitted Mother’s therapist’s report to the

juvenile court on October 28, 2019, and it was considered by the juvenile court and

Mother’s counsel.

Based on the foregoing, Mother has failed to establish that she falls outside the

waiver rule as she cannot establish the review hearings were fundamentally unfair. As

such, she cannot raise any claims that the juvenile court’s rulings at the 12- and 18-month

review hearings for E.C. and the older siblings were not supported by the evidence or that

she did not receive reasonable visitation. Mother raises no claims as to the section

366.26 hearing. The juvenile court order establishing a legal guardianship for E.C. and

the older siblings with paternal grandparents is upheld on appeal.

DISPOSITION

The juvenile court’s order appointing paternal grandparents as legal guardians of

the Children is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
J.

We concur:

McKINSTER
Acting P. J.

MENETREZ
J.

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