In re Brenda L.

Filed 8/16/07 In re Brenda L. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from orders of the Superior Court, Steven L. Berman, Referee. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Michael A. Salazar, under appointment of the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Ofelia L. (mother) is the mother of minor Brenda L. (Brenda). Approximately 18 months after the juvenile court detained Brenda and placed her in foster care based on allegations that mothers boyfriend physically abused both mother and Brenda, mother successfully completed her case plan and obtained a home-of-parent custody order. The Los Angeles County Department of Children and Family Services (DCFS), however, almost immediately filed a Welfare and Institutions Code[1]section 387 supplemental petition seeking to terminate the home-of-parent order and retain Brenda in foster care on the grounds that mother was homeless and could not provide Brenda with the necessities of life. The juvenile court sustained the section 387 supplemental petition, terminated the home-of-parent order, and set a section 366.26 permanent plan hearing. At the subsequent permanent plan hearings, the juvenile court denied mothers requests for an Evidence Code section 730 bonding study, denied mothers section 388 petition based on the assertion she was no longer homeless, terminated mothers parental rights, and freed Brenda for adoption.

On appeal, mother challenges the juvenile courts orders relating to DCFSs section 387 supplemental petition, including the courts denial of her request for a continuance of the section 387 dispositional hearing, contending those prior orders are reviewable on an appeal from a subsequent order terminating parental rights. Mother also asserts claims based on DCFSs restriction of her visitation rights and ineffective assistance of counsel. She further challenges the juvenile courts orders denying a bonding study, denying her section 388 petition, and terminating her parental rights. Mothers basic contention is that Brenda was taken from her solely because mother is poor and homeless.

We hold that mothers challenges to the orders relating to DCFSs section 387 supplemental petition are outside the scope of her notice of appeal, and therefore not subject to review on this appeal. We further hold that mother forfeited her contentions based on the restriction of her visitation rights by not raising that issue in the juvenile court, and that her claim of ineffective assistance of counsel is not cognizable on direct appeal. Finally, we hold that the juvenile court did not abuse its discretion in denying mothers requests for a bonding study and her section 388 petition, and that there is substantial evidence supporting the courts finding that mother failed to establish the section 366.26, subdivision (c)(1)(A) exception to the termination of her parental rights. Based on the applicable standards of review, the record, and our appellate jurisdiction, we affirm the orders of the juvenile court from which mother appeals.

FACTUAL AND PROCEDURAL BACKGROUND

A. Original Detention Hearing

Brenda was born in June, 2003. On November 24, 2004, when Brenda was 17 months old, DCFS filed a petition under section 300, subdivisions (a), (b), and (i), alleging that on or about November 11, 2004, and on prior occasions, Brenda had been exposed to a violent confrontation between [mother] and . . . mothers male companion; that mothers male companion had physically abused [Brenda] by striking the child about the face and head; that on numerous occasions mother had failed to protect Brenda from that abuse; and that Brenda had been repeatedly locked in the bedroom, without adequate adult supervision. The juvenile court held a detention hearing that same day, and ordered that Brenda be detained and suitably placed. The juvenile court ordered DCFS to provide mother with family reunification services and to refer mother to parenting classes, domestic violence counseling, and individual counseling to address anger management. The juvenile court continued the matter for a pretrial resolution conference on January 6, 2005.

B. Original Jurisdictional/Disposition Hearing

On January 6, 2005, mother executed a waiver of rights submitting the petition on the report of the childrens social worker (CSW). The juvenile court found a knowing, intelligent, and voluntary waiver, that there was a factual basis for the petition, and that, by a preponderance of the evidence, the allegations of counts B-1, B-2, and B-3 of the petition were true. Counts A-1, B-4, and I-1 were dismissed in the interests of justice. The juvenile court ordered custody to be taken from mother, and placed Brenda in the care of DCFS for suitable placement. Mother was granted reunification services and required to participate in domestic violence counseling, parent education, individual counseling, and to attend four Alanon meetings. The juvenile court granted mother monitored visits with Brenda, and continued the matter for a six-month review hearing on July 7, 2005.

C. Six-Month Review Hearing

In a status review report dated July 7, 2005, DCFS reported that mother had moved around from one residence to another and [was] currently looking for a residence where she could reside with . . . Brenda. Mother informed the CSW that she had completed her domestic violence classes and that she was still working on the parenting and individual counseling requirements. The CSW was able to confirm that mother had completed 15 sessions of all the classes [mother] was ordered to attend . . . [but was] unable to get written confirmation of her completion [of her domestic violence classes] . . . .

At the July 7, 2005, status review hearing, the juvenile court found mother to be in partial compliance with the case plan, and that there was a substantial probability that mother [would] have [Brenda] returned to her by the six-month date . . . . Accordingly, the juvenile court ordered that further reunification services be provided to mother and continued the matter for a 12-month permanent plan hearing on January 6, 2006.

D. January 6, 2006, and February 3, 2006, Permanent

Plan Hearings

In a status review report dated January 6, 2006, DCFS reported that mother had visited Brenda once every week and that the visits had gone very well. Based on the information provided, DCFS recommended that Brenda should remain suitably placed [in foster care] due to mothers partial compliance with court orders . . . [and further recommended] that mother be given six more months of reunification services in order to complete parenting and individual counseling. At the January 6, 2006, permanent plan hearing, the juvenile court continued the hearing to February 3, 2006.

At the February 3, 2006, permanent plan hearing, the juvenile court found there was a substantial probability that Brenda would be returned to mothers custody within the following six months. The juvenile court continued the matter for a section 366.22 permanency review hearing on May 22, 2006.

E. May 22, 2006, Permanency Review Hearing

On May 22, 2006, DCFS reported that mother was living with a new boyfriend, and that, as of March 16, 2006, she was five months pregnant. DCFS further reported that mother continued to visit with Brenda once every week, and had begun to visit on Saturdays and Sundays as well. Brenda also had a two-night unmonitored visit in mothers home. Mother had completed a domestic violence program, a parenting program, and was currently enrolled in individual counseling. DCFS recommended that Brenda be returned to the custody of mother and that mother be ordered to participate in Family Preservation Services and be given six months of family maintenance services in order to continue individual counseling and complete [her compliance with] Court orders.

At the May 22, 2006, permanency review hearing, the juvenile court found mother in compliance with her case plan, terminated its prior suitable placement order, and ordered Brenda placed in the home of mother under DCFS supervision, i.e., a home-of-parent order. The juvenile court continued the matter for a section 364 review hearing on November 20, 2006.

F. May 26, 2006, Section 387 Supplemental Petition

Despite the juvenile courts order returning to mother custody of Brenda, mother never picked up [Brenda] from [her] foster care placement. Instead, mother informed DCFS that she would arrange with the foster caregiver to continue to provide care [for] and supervision of [Brenda]. [Mother] stated that she [would] not have housing . . . and [would] be homeless. DCFS informed mother that Brenda was being detained because mother did not have adequate housing for Brenda and was not able to provide [Brenda] with the provisions of life.

On May 26, 2006, DCFS filed a section 387 supplemental petition, alleging that mother was unable to provide [Brenda] with adequate housing and ongoing care and supervision, and the necessities of life, including food, clothing, shelter and medical care. At the hearing on the section 387 supplemental petition that same day, the juvenile court found a prima facie case for detaining Brenda, and vested temporary care and custody of Brenda in DCFS. The juvenile court also granted DCFS the discretion to release Brenda to mothers custody upon verification that mother had obtained appropriate housing. The juvenile court further granted mother unmonitored visitation, but ordered her to notify DCFS of the location of the visits. The juvenile court continued the matter for a pretrial resolution conference and progress report on June 21, 2006.

G. June 21, 2006, Pretrial Resolution Conference

In a status review report dated June 21, 2006, DCFS reported that mother admitted the allegations of the section 387 supplemental petition. Mother confirmed that neither she nor her boyfriend was employed, and that they had been unable to find a place in which to live. DCFS further reported that mother did not inform the juvenile court of her eviction from her residence prior to the courts May 22, 2006, order placing Brenda at home with mother, and instead allowed the court to be of the impression that [mother] was capable of caring for [Brenda] when she knew she had no suitable housing. DCFS also reported that it had called at least 30 different homeless shelters, but no beds were available for mother and her family.

At the June 21, 2006, pretrial resolution conference, the juvenile court noted that mothers waiver of rights appeared to be deficient because mother had failed to mark individual boxes on the form. As a result, the juvenile court reviewed the waiver form with mother. Mother confirmed on the record that she had discussed the section 387 supplemental petition with her attorney, that the information on the waiver form had been translated into Spanish by the courts interpreter, that she understood what she had signed, that she understood that by submitting the matter the court would find the allegations of the supplemental petition to be true, and that she understood that the juvenile court could permanently terminate her rights to Brenda. The juvenile court found a knowing, intelligent, and voluntary waiver of mothers rights, that mother understood the consequences of the waiver and wished to go forward, and that the allegations in the section 387 supplemental petition were true. The juvenile court sustained the supplemental petition, and continued the matter for a contested disposition hearing on July 24, 2006.

H. July 24, 2006, Disposition Hearing

In a status review report dated July 24, 2006, DCFS reported that a CSW had met with mother three days earlier to establish a plan to assist her to find housing, establish funding sources, enroll in individual counseling, and obtain medical services. During that meeting, mother informed DCFS that her doctor had scheduled an induced labor for later that evening. Mother was concerned that she might not be able to be present at the next court hearing. DCFS further reported that mother had not been able to find a house or an apartment. Moreover, the other residents of the house in which she and her boyfriend had been living had refused to LiveScan or submit to other criminal background checks.

At the July 24, 2006, disposition hearing, mothers attorney reported that mother was absent from the hearing due to having a labor-induced birth recently. Her attorney therefore requested a short continuance to have my client present so she can assist. The juvenile court stated, The problem is I still have to make [section 366.22] findings at some point. I still have to do disposition orders on the [section] 387 [supplemental petition]. The juvenile court further noted that, regardless of whether mother was present, the matter was beyond the 18-month date. The juvenile court therefore denied the request for a continuance, denied further reunification services to mother, terminated the previous home-of-parent order, retained Brenda in foster care, and set the matter for a section 366.26 hearing on November 20, 2006 to select and implement a permanent plan for Brenda. The juvenile court observed that setting the section 366.26 hearing for November 20, 2006, would give [mother] at least four months to take care of the housing, and we can deal with that at the end of four months.

I. November 20, 2006, Section 366.26 Hearing

At the November 20, 2006, section 366.26 hearing, mother appeared, represented by counsel. Brendas current caregivers, the prospective adoptive parents, were also in attendance. Mother objected to moving forward with the hearing on the grounds that a study of the adoptive parents home had not been completed. Mother also requested that the matter be set for a contested hearing to allow mother to establish an exception to adoption under section 366.26, subdivision (c)(1)(A) and to file a section 388 petition. In response to the juvenile courts statement that mothers three visits[2]with Brenda in the last six months would not establish a section 366.26 (c)(1)(A) exception, mothers attorney explained that mothers new infant daughter had undergone several surgeries during that time period, making it difficult for mother to visit Brenda. Mother did not advise the juvenile court at that time that DCFS had changed her visitation rights with Brenda from unmonitored to monitored visits. The juvenile court continued the matter for a contested hearing on December 8, 2006.

J. December 8, 2006, Continued Section 366.26 Hearing

On December 7, 2006, mother filed a section 388 petition seeking to change the juvenile courts July 26, 2006, order taking custody from mother and placing Brenda in the care of DCFS for suitable placement. Mother alleged that she had arranged for . . . safe [and] suitable housing for [Brenda], and was available to care for Brenda full time. Mother further alleged that there was a strong bond between her and Brenda. Mother requested that the juvenile court issue an order placing Brenda in mothers home.

In a status review report dated December 8, 2006, DCFS reported that on August 24, 2006, it had restricted . . . mothers visits with Brenda to include monitored visits due to the mothers reunification services being terminated and the establishment of a permanent plan. DCFS further reported that since July 24, 2006, mothers visitation with Brenda had been sporadic and inconsistent. Between July 24 and October 19, 2006, mother visited with Brenda once. Between October 19 and November 30, 2006, mother visited with Brenda on four occasions. Mother stated that it had been difficult to maintain consistent visitation with Brenda because mothers infant daughter, Berenice, had serious health problems that required much attention.

Mother appeared at the December 8, 2006, continued section 366.26 hearing represented by counsel. Her attorney represented to the juvenile court that mother had found suitable housing, and requested a continuance of the hearing to allow DCFS to evaluate mothers living situation. Mother also inquired whether the court would consider a bonding study. DCFS objected to a bonding study based on the timing of the request, i.e., the day of the contested section 366.26 hearing. DCFS also objected to the late filing of mothers section 388 petition, as did Brendas attorney.

The juvenile court continued both the section 366.26 hearing and the hearing on mothers section 388 petition, stating: Im going to do something that I have never done before. Im going to put this over. I think that this is a different situation. I understand the mother hasnt had regular visitation, which may or may not affect the [section 366.26, subdivision] (c)(1)(A) exception; however, I also note that mother had another child with [a] heart condition. The mother was homeless, and there may be extenuating circumstances. Im also looking at, again, the monitors reports, and it certainly does seem that the child wanted to go with the mother. [] I dont know whether a [section 366.26, subdivision] (c)(1)(A) [exception] or the [section] 388 [petition] will be granted, but I certainly think there should be an opportunity in this case.

After obtaining the continuance of the hearings, mothers attorney renewed his request for a bonding study. The juvenile court denied the request, stating:

Mother has had five months to request to have a bonding study. The [section 366.26 hearing] was set five months ago, and Im not going to order [an Evidence Code section] 730 [bonding study] . . . Im not going to order the County to pay for a bonding study thats way past overdue.

Prior to the conclusion of the hearing, mothers attorney informed the juvenile court that on August 24, 2006, despite the courts order for unmonitored visitation, DCFS had unilaterally determined that mothers visits with Brenda should be monitored based on the courts order to establish a permanent plan for Brenda. Mothers counsel stated that I guess, technically, I should have brought a contempt proceeding because the court order was being violated; but at this point, unmonitored visits going back to what it was will suffice, your Honor. The juvenile court confirmed its prior order that mother was entitled to unmonitored visits with Brenda, and continued the matter for a contested hearing on January 22, 2007.

K. January 22, 2007, Continued Section 366.26 Hearing

In a status review report dated January 22, 2007, DCFS reported that mother was residing in transitional housing provided by the San Gabriel Valley Center, in a two-bedroom house in East Los Angeles. According to DCFS, although there was no time limit on such housing, the average stay in transitional housing was six months to a year. Mother and her boyfriend were not paying rent or other bills in connection with their transitional housing. DCFS also reported that mothers infant daughter, Berenice, continued to have severe medical problems, necessitating intense medical treatment and hospitalizations, that were taking a toll on the mother and her [boyfriend] and causing them much stress and weight loss.

Between November 15, 2006, and December 27, 2006, mother cancelled one visit with Brenda, and had two unmonitored visits on January 10 and January 17, 2007. DCFS reported that it did not have enough evidence to prove that the visits with . . . mother [were] successful [or] that there [was] a strong bond between . . . mother and [Brenda]. On the other hand, DCFS concluded that the bond between Brenda and her prospective adoptive parents appeared to be stronger than the bond between Brenda and mother.

At the January 22, 2007, continued section 366.26 hearing, the juvenile court granted de facto parent status to Brendas prospective adoptive parents.[3] Mothers attorney renewed his request for a court-ordered bonding study. The juvenile court responded that it would have no objection to the parties obtaining their own bonding study, as long as no confidential information was revealed. Brendas attorney stated that Brenda was opposed to a bonding study, and therefore would not be made available for one. Accordingly, the juvenile court found that Brenda was not available for a bonding study.

Mother appeared at the hearing represented by counsel and testified on her own behalf as follows. Prior to giving birth to Berenice in July 2006, mother visited with Brenda regularly on Saturdays and Sundays from 10:00 a.m. to 8:00 p.m., at mothers residence. Berenice, however, was born with a heart problem that required three to four hospitalizations, over a period of about two months. While Berenice was hospitalized, mother spent all her time at the hospital. Mother was not participating in counseling because she could not leave Berenice alone. Nevertheless, mother believed she could care for Brenda if the juvenile court returned custody of her to mother.

On cross-examination, Mother could not recall if she had missed any visits with Brenda in the prior two months. Mother admitted, however, that when she was unable to make a visit, she would not call to inquire how Brenda was doing because she was worried about Berenice. Mother also admitted that she was unaware Brenda had severe speech delays, that she did not know what comforted Brenda at bedtime, and that she did not know what books Brenda liked to have read to her. When asked how she would care for Brenda if Berenice required further hospitalization, mother responded, I cant answer, but I know that I can take care of both of them.

In closing argument, mothers attorney stated that Berenices medical problems prevented mother from visiting Brenda on a regular basis. He emphasized that mother had secured suitable housing, and that there was a positive relationship between Brenda and mother. According to mothers attorney, Brenda had only been placed in her pre-adoptive home for four months, and her relationship with mother went far beyond that.

Brendas attorney urged the juvenile court to deny mothers section 388 petition, and to terminate parental rights, arguing that Brenda is very bonded with her prospective adoptive parents and she has made leaps and bounds in the past four to five months while she has been in their care. DCFSs attorney made similar arguments, and added that mother had failed to establish both a change of circumstances and that the granting of the section 388 petition would be in Brendas best interest.

After hearing oral argument, the juvenile court observed: I see nothing that shows its in the best interest of [Brenda] to be returned to . . . mother. I see nothing that shows that . . . it would be detriment[al] to sever the parental rights over the need for permanence and taking into account the amount of time the child has been in the system, I think the need for permanence is strong. Accordingly, the juvenile court denied mothers section 388 petition, finding that Brendas best interests would not be promoted by [the] proposed change of order. The juvenile court also found by clear and convincing evidence that Brenda was likely to be adopted, and that return of Brenda to the physical custody of mother would create a substantial risk of detriment. The juvenile court ordered adoption as the permanent plan, and terminated mothers parental rights.

L. Notice of Appeal

On February 27, 2007, mother filed her Notice of Appeal that states: Mother . . . appeals the Courts (sic) findings [and] orders that denied my 388 petition and resulted in the termination of parental rights to . . . [Brenda] . . . . The hearings were held on 11-20-06, 12-8-06, and 1-22-07. Appellant is indigent and requests appointment of appellant counsel.

DISCUSSION

A. Scope of Mothers Notice of Appeal

Mother contends that although she failed to take custody of Brendabecause mother was unemployed and homelessthere is insufficient evidence supporting the sustaining of the section 387 supplemental petition, the termination of the home-of-parent order and the return of Brenda to foster care, and the setting of the 366.26 hearing. Mother also contends that she should have been present at the hearing on the section 387 supplemental petition, and therefore it should have been continued.

DCFS contends that mothers appeal is limited to the two orders referenced in her notice of appealthe January 22, 2007, orders (i) denying her section 388 petition and (ii) terminating her parental rights. Mother, however, argues that her appeal encompasses several other prior orders because the juvenile court did not provide her with adequate notice of her duty to file an extraordinary writ petition challenging the juvenile courts July 24, 2006, order setting the section 366.26 hearing. According to mother, that failure to provide notice allows her to challenge on appeal the following: the June 21, 2006, order sustaining the section 387 petition; the July 24, 2006, order terminating the previous home-of-parent order and retaining Brenda in foster care; and the July 24, 2006, order setting a section 366.26 permanent plan hearing. In addition, mother contends that, for the same reason, she should be permitted to challenge the following: the juvenile courts July 24, 2006, order denying her request for a continuance; the December 8, 2006, and the January 22, 2007, orders denying her requests for a bonding study; DCFSs alleged extrajudicial interference with her visitation rights; and the alleged ineffective assistance of her trial counsel. As discussed below, although we do not read mothers notice of appeal as narrowly as DCFS, it does not encompass all of the orders mother now attempts to review on appeal.

Generally, [t]he notice of appeal must be liberally construed. (Cal. Rules of Court, rule 8.100(a)(2).) But the California Rules of Court also require that the notice should identify the particular judgment or order being appealed (ibid.), i.e., the judgment or order should be described in such a manner as to make its identification reasonably certain. (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045.) Thus, in cases where there is no ambiguity in the notice of appeal, and it specifies only a portion of the judgment, the notice cannot be construed liberally to include other parts of the judgment or other orders not specified in the notice. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) As the Supreme Court stated in Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92, an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal.

Here, mothers notice of appeal references the findings and orders that denied [her section] 388 petition and resulted in the termination of [her parental rights]. . . .The notice goes on, however, to specify that the hearings were held on 11-20-06, 12-8-06, and 1-22-07. Each of those proceedings related directly to the section 366.26 hearing that resulted in the termination of mothers parental rights, and also related to the determination of her section 388 petition. Thus, when the notice is read in its entirety, there is nothing ambiguous about the orders from which mother intended to appeal.

By identifying three specific hearing dates, each of which relates to either the termination of her parental rights or the denial of her section 388 petition, mother affirmatively limited the orders under review on this appeal. She clearly manifested her intent to challenge the order terminating her parental rights, including any orders that resulted in that termination that were entered on November 20, 2006, December 8, 2006, and January 22, 2007. Similarly, she clearly manifested an intent to appeal the denial of her section 388 petition, including any orders relating to that petition that were entered on either December 8, 2006, or January 22, 2007.[4] Orders entered prior to those dates, including the June 21, 2006, order sustaining DCFSs section 387 supplemental petition, the July 24, 2006, order terminating the previous home-of-parent order and setting the section 366.26 hearing, and the July 24, 2006, order denying her request for a continuance are not properly subject to review on this appeal.

Mothers argument concerning the juvenile courts failure to advise her of her right to file an extraordinary writ petition is misplaced. As the court explained in In re Athena P. (2002) 103 Cal.App.4th 617, 624-625, When the referral order [setting a section 366.26 hearing] is made at the dispositional hearing, the traditional rule favoring the appealability of dispositional orders yields to the statutory mandate for expedited review. [Citation.] [] Much like failure to appeal from an appealable dispositional order, failure to take a writ from a nonappealable dispositional order waives any challenge to it. [Citations.] But there is one exception to this rule. The juvenile court is required to advise a parent of the writ petition requirement. [Citations.] If it fails to do so, in most cases the parent has good cause to be relieved of the requirement. Thus, even though the parent failed to file a writ petition, he or she can still challenge, on appeal, the order setting a section 366.26 hearing. [Citations.]

In this case, the juvenile court set the section 366.26 hearing on July 24, 2006, during the same hearing at which it made its dispositional order terminating the previous home-of-parent order and retaining Brenda in foster care. Because they were made at the same hearing as the order setting the section 366.26 hearing, those dispositional orders were not directly appealable and could only be challenged by an extraordinary writ petition. But, as in In re Athena P., supra, 103 Cal.App.4th 617, the juvenile court failed to advise mother of the writ petition requirement. As DCFS concedes, mother was therefore not prevented from challenging in a subsequent appeal either the June 21, 2006, order sustaining the section 387 petition or the July 24, 2006, orders terminating the previous home-of-parent order and setting the section 366.26 hearing. (Id. at pp. 625-626.)

As discussed above, however, to perfect those challenges on appeal, mother was nevertheless required to specify those prior orders in her notice. By specifying only that she was appealing from orders entered on specific dates well after the dates of the orders relating to the section 387 supplemental petition, mother limited her appeal to those later orders. Accordingly, the prior orders relating to the section 387 supplemental petition that she now attempts to raise on appeal are not properly before us.

B. December 8, 2006, and January 22, 2007, Orders Denying Mothers Request for a Bonding Study

Mother contends that she requested a bonding study at both the December 8, 2006, andthe January 22, 2007, hearings to assist her in establishing the section 366.26, subdivision (c)(1)(A) exception to the termination of her parental rights. According to mother, DCFS had already improperly interfered with her parental bond with Brenda by unilaterally changing her court-ordered visitation rights from unmonitored to monitored visits, thereby making the bonding study crucial to her ability to demonstrate the section 366.26, subdivision (c)(1)(A) exception.

1. Standard of Review

Mothers challenge to the juvenile courts denial of her requests for an Evidence Code section 730 bonding study is governed by an abuse of discretion standard of review. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.) Under that standard, we determine whether, under all the evidence viewed in a light most favorable to the juvenile courts action, the juvenile court could have reasonably refrained from ordering [an Evidence Code section 730] bonding study]. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330,1341.) The decision to appoint an expert is vested in the sound discretion of the trial court. (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.)

2. Reasonableness

The record reflects that from and after the birth of Berenice in July 2006, mothers visitation with Brenda was sporadic and inconsistent. Mother attributed the change in her relationship with Brenda to Berenices heart condition and the resulting need for repeated hospitalizations. Nevertheless, mother delayed over four months, until December 8, 2006, to request a bonding study. Like her section 388 petition, the request was made at the hearing scheduled for a contested section 366.26 determination. At that hearing, the juvenile court focused on the timing of the request, and concluded that it was not going to compel the County to pay for a bonding study that was long overdue. But the juvenile court did not state or imply that mother was prohibited from obtaining her own study, and continued the matter for six weeks. Athough mother attempted, but was unable, to obtain her own bonding study during that time period, her inability to do so was the result of confidentiality concerns, not any prohibition imposed by the juvenile court. Thereafter, at the January 22, 2007, hearing, Brendas counsel unequivocally refused to make Brenda available for a study, asserting that it was not in Brendas best interest.

Under those circumstances, it was not unreasonable for the juvenile court to deny mothers requests for a bonding study. The juvenile court was familiar with the facts in the case, and a bonding study would have delayed the proceedings. Given the timing of the requests and the interests of the other parties, including Brendas interest in permanence as acknowledged by the juvenile court, the court did not abuse its discretion in denying mothers belated requests for a bonding study.

C. Section 366.26, Subdivision (c)(1)(A) Exception to the

Termination of Mothers Parental Rights

Mother contends that she cared for Brenda for the first 17 months of Brendas life and that, after Brenda was placed in foster care, mother visited her weekly. Mother emphasizes that by April 2006, she was having unmonitored visits with Brenda on weekends and overnight. According to mother, in August 2006, just before DCFS unilaterally imposed monitored visits, mother had a full bloom parental relationship with Brenda, and it was only due to circumstances beyond her control occurring thereafter, that mothers relationship with Brenda was altered.

According to mother, in making its determination of whether the section 366.26, subdivision (c)(1)(A) exception applied, the juvenile court ignored mothers prior long-standing and bonded relationship with Brenda and, instead, focused only on the relatively short time period during which mother was caring for Berenice and compelled by DCFS to engage in monitored visits with Brenda. From mothers prospective, the juvenile courts disregard for her prior close relationship with Brenda constitutes an abuse of discretion, and requires a reversal of the order terminating her parental rights.

1. Standard of Review

Generally, challenges to a juvenile courts determination under section 366.26, subdivision (c)(1)(A) are governed by a substantial evidence standard of review. (See, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)[5] Under a substantial evidence standard of review the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219, fn. 3.) We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

2. Applicable Principles

The exception in section 366.26, subdivision (c)(1)(A) provides that parental rights will not be terminated if the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The relationship must promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The exception does not apply when a parent fails to occupy a parental role in his or her childs life. (In re Jasmine D., supra 78 Cal.App.4th at p. 1350; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Casey D., supra, 70 Cal.App.4th at p. 51 [parents who have essentially never had custody of children nor advanced beyond supervised visitation will have a difficult time establishing the section 366.26, subdivision (c)(1)(A), exception].) [T]o establish the exception in section 366.26, subdivision (c)(1)(A), the parents must do more than demonstrate frequent and loving contact [citation], an emotional bond with the child, or that the parents and child find their visits pleasant. [Citation.] (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.) A relationship sufficient to support the exception aris[es] from day-to-day interaction, companionship and shared experiences. (In re Casey D., supra, 70 Cal.App.4th at p. 51.) Whether the exception applies is determined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effects of interaction between parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Parents bear the burden of establishing that an exception to termination of parental rights applies. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) A parent must show that he or she has maintained regular visitation and contact with the child, and that a benefit to the child from continuing the relationship would result. (In re Amanda D. (1997) 55 Cal.App.4th 813, 821.)

3. Mother Did Not Satisfy the Requirements of Section 366.26, Subdivision (c)(1)(A)

Mother contends that she presented substantial evidence to support a finding that the section 366.26, subdivision (c)(1)(A) exception applied. As the juvenile court noted, it was questionable whether mother satisfied the first prong of the exception by showing that she had regular visits and contact with Brenda. And, in any event, the juvenile court found that mother had failed to satisfy the second prong of the exception that requires a showing that the benefit to the child from the parent/child relationship outweighs the benefit from a permanent home with new adoptive parents. Contrary to mothers assertion, there is substantial evidence to support those findings.

The record shows that mother did not visit Brenda frequently from and after the birth of Berenice in July 2006. Although mother now proffers explanations for her lack of visitation, including Berenices heart condition and DCFSs restrictions on her visitation rights, the fact remains that she visited Brenda only once between July 24, 2006, and October 19, 2006, on four occasions between October 19, 2006, and November 30, 2006, and on two occasions between November 30, 2006, and January 22, 2007. Moreover, mother admitted that when she missed a visit with Brenda, she did not call to inquire about Brenda. That total of seven visits in a six-month period and apparent lack of contact with Brenda supports a reasonable inference that mother had not maintained regular visitation with Brenda from and after July 24, 2006, and therefore failed to establish the first prong of the section 366.26, subdivision (c)(1)(A) exception.

Even assuming, arguendo, that mother could overcome her failure to maintain regular contact with Brenda, there is substantial evidence in the record to support the juvenile courts finding that any benefit Brenda might have derived from a continued relationship with mother was outweighed by the benefits Brenda would enjoy in a permanent home with her prospective adoptive parents. There is evidence that mother spent a substantial portion of her time caring for Berenice, that she did not check on Brenda when she missed a visit, that she did not know that Brenda had speech difficulties, that she did not know what comforted Brenda at bedtime, and that she did not know the books Brenda liked to have read to her. On the other hand, the evidence showed that Brenda was thriving in the home of the prospective adoptive family, that they had arranged for therapy to address her speech delays, and that there was a significant bond between the family and Brenda. The evidence further established that the family had assumed full responsibility for Brendas day-to-day care, whereas mother had no such responsibility for Brenda. Moreover, DCFS opined that the bond between Brenda and her prospective adoptive family outweighed any bond she might still have with mother.

At best, mothers evidence showed the type of frequent and loving relationship that has been held insufficient to support the application of the section 366.26, subdivision (c)(1)(A) exception. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) Mother did not show that she occupied a parental role in Brendas life sufficient to satisfy the benefit prong of the exception. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) Thus, the juvenile courts finding that mother had failed to establish the 366.26, subdivision (c)(1)(A) exception is supported by substantial evidence.[6]

E. Order Denying Mothers Section 338 Petition

1. Standard of Review

The juvenile courts order denying mothers section 388 petition is reviewed under an abuse of discretion standard. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Under an abuse of discretion standard, a reviewing court will not disturb [the trial courts] decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]. (In re Stephanie M., supra, 7 Cal.4th at p. 318, quoting In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

2. Requirements for a Section 388 Petition

To prevail on her section 388 petition, mother was first required to demonstrate the existence of changed circumstances from the time of the juvenile courts July 24, 2006, order terminating the previous home-of-parent order and retaining custody of Brendabased on its June 21, 2006, finding that mother could not provide the necessities of life for Brendaand then to show that the requested order returning custody to mother would be in Brendas best interests. (In re Jasmon O., supra, 8 Cal.4th at p. 415.) At the hearing on the petition pursuant to section 388, the juvenile courts task was to determine whether the Department had demonstrated by a preponderance of the evidence that there was new evidence or a change of circumstances demonstrating that it was in [the minors] best interests that the previous permanency planning order . . . be changed, modified or set aside. (Ibid.)

3. Change of Circumstances

Mother contends that the evidence showed that she had procured transitional housing in a two-bedroom home in East Los Angeles for her family, and that evidence suffices to establish a change of circumstances warranting a change in the July 24, 2006, dispositional order that terminated the previous home-of-parent order. The July 24, 2006, order was based on mothers lack of a permanent residence in which to care for Brenda. As the trial court acknowledged, mothers evidence in support of her section 388 petition established that she had procured permanent housing in which to care for Brenda. That evidence showed the change of circumstances necessary to satisfy the first prong of the section 366.26, subdivision (c)(1)(A) exception.

4. Brendas Best Interest

Despite the change in mothers housing status, the juvenile court found that Brenda would not derive any significant benefit from a continuing relationship with mother, and that her need for a permanent, stable adoptive home outweighed any arguable benefit from a continued relationship with mother. The evidence of mothers infrequent contact with Brenda from and after July 2006, when balanced against the evidence of the significant bond that had developed with the family that had cared for Brenda daily since September 2006, and was ready, willing, and able to adopt her, demonstrates that it was not arbitrary, capricious, or patently absurd for the juvenile court to find that mother failed to establish the section 366.26, subdivision (c)(1)(A) exception.

F. DCFSS Change from Unmonitored to Monitored Visits

Mother contends that DCFS unilaterally restricted mothers visitation rights with Brenda by requiring monitored visits and, in doing so, unlawfully interfered with mothers parental relationship with Brenda. As a result, mother argues, she was prevented from demonstrating the parental bond with Brenda necessary to establish the section 366.26, subdivision (c)(1)(A) exception. Even assuming for sake of argument that DCFSs unilateral change in the status of mothers visitation rights from unmonitored to monitored visits is in violation of the juvenile courts order, mother has forfeited any challenge on appeal based on that administrative action by failing to raise the issue in the juvenile court.

According to mother, on May 26, 2006, the juvenile court granted her unmonitored visits with Brenda. On August 24, 2006, DCFS unilaterally imposed monitored visitation in alleged violation of the juvenile courts order. But mother made no effort to challenge that action in the juvenile court for over three months, including at the original November 20, 2006, section 366.26 hearing. Instead, she first raised the issue at the December 8, 2006, section 366.26 hearing. At that time, her attorney said he should have brought a contempt proceeding, but he did not request any form of sanction against DCFS. The only affirmative relief mothers attorney requested was confirmation from the juvenile court that mothers visitation rights should be unmonitored, relief which the trial court granted. Having obtained the only relief she requested, mother did not raise the issue again during the January 22, 2007, hearing at which her parental rights were terminated. If, as mother now contends, DCFSs unilateral action had a material and detrimental effect upon her ability to visit and bond with Brenda, she was obligated to bring that issue to the juvenile courts attention in a timely manner and request affirmative relief.

A party who fails to raise an issue at the trial court level generally forfeits that issue on appeal. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) Appellate courts have applied this doctrine in dependency proceedings in a wide variety of contexts. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Many dependency cases have held that a parents failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1338.) The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the trial court so they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) [A]ny other rule would permit a party to . . . deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1339.)

Here, the record shows that mothers unmonitored visitation rights were changed on August 24, 2006, and that she was presumably aware of that change because she visited with Brenda after that DCFS action. Her failure to raise the issue with the juvenile court for over three months, and afford that court the opportunity to remedy the prejudice of which she how complains, forfeits the issue on appeal.

G. Ineffective Assistance of Counsel

Mother contends that the failure of her trial counsel to raise the issue of monitored visits with the juvenile court and obtain appropriate relief constitutes ineffective assistance of counsel in connection with the termination of her parental rights, requiring a reversal of the termination order. As mother views the record, if her counsel had timely raised the monitored visits issue with the juvenile court, she would have been able to establish the section 366.26, subdivision (c)(1)(A) exception to the termination of her parental rights. Mother also contends that her counsel failed completely at the January 22, 2007, hearing to advance the exception in opposition to the termination of her parental rights, thereby compounding the prejudice to her arising from her counsels original failure to raise timely the monitored visits issue.

In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where there simply could be no satisfactory explanation for trial counsels action or inaction. [Citation.] (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1 [105 Cal.Rptr.2d 705]; accord, In re Eileen A. (2000) 84 Cal.App.4th 1248, 1253 [101 Cal.Rptr.2d 548].) Usually, however, [t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at trial is typically motivated by considerations not reflected in the record. . . . Evidence of the reasons for counsels tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. [Citation.] (In re Arturo A. (1992) 8 Cal.App.4th 229, 243 [10 Cal.Rptr.2d 131]; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [62 Cal.Rptr.2d 437, 933 P.2d 1134].) (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.)

Where the ineffective assistance concept is applied in dependency proceedings . . . [f]irst, there must be a showing that counsels representation fell below an objective standard of reasonableness . . . [] . . . under prevailing professional norms. [Citations.] Second, there must be a showing of prejudice, that is, [a] reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711 [12 Cal.Rptr.2d 294] [Fourth Dist., Div. Two], quoting Strickland v. Washington(1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064-2065, 2068, 80 L.Ed.2d 674].) (In re Athena P., supra, 103 Cal.App.4th at p. 628.)

In the instant case, the record on appeal is silent as to the reasons why mothers trial counsel did not raise the monitored visits issue until December 8, 2006. Similarly, there is nothing in the record to establish the appropriate standard of legal practice in the community relevant to the unmonitored visits issue.

As a result, basic facts necessary to the ineffective assistance analysis are not before us. For example, there is nothing to indicate when mothers trial counsel was advised that DCFS had restricted mothers visitation rights to monitored visits. That her counsel made no mention of the issue at the initial November 20, 2006, section 366.26 hearing suggests that he may only have learned of it just prior to the December 8, 2006, hearing at which he raised the issue for the first time. Moreover, even assuming mothers counsel was advised immediately of the issue in August 2006, there is nothing in the record to indicate why he did not raise it until three months later, in December 2006. Perhaps mother also advised him in August 2006 of Berenices heart condition and the resulting need for repeated hospitalizations. According to mother, Berenices heart condition required mother to provide her with constant care and attention, and that is why mothers visits with Brenda were so infrequent. If mothers counsel was aware of these facts in August 2006, it may explain why he took no action in response to the change in mothers visitation rights because, regardless of whether those visits were monitored, mother was unavailable for frequent visitation. Without an adequate evidentiary record on these and other issues, we cannot determine mothers claim of ineffective assistance on appeal.

Mother contends that a single statement by her counsel at the December 8, 2006, hearing allows us to determine that there is no satisfactory explanation for her counsels inaction, such that we can resolve the issue on appeal. According to mother, that statementI guess, technically, I should have brought a contempt proceeding because the court order was being violatedconstitutes an admission by mothers counsel that he had no reasonable or satisfactory explanation for not taking immediate action in response to the monitored visits issue.

The statement by mothers counsel cannot reasonably be construed as such an admission. Counsels statement does not establish when he was informed of the unmonitored visits issue, nor does it address other information about mothers situation that she may have provided to him, such as Berenices heart condition. At best, her counsels statement suggests that pursuing a contempt proceeding at that late stage in the proceedings would not have been practical or productive, a conclusion that, under the circumstances, was reasonable on its face. Because her counsels single statement concerning contempt proceedings doe