In re Haley M.

Filed 8/1/07 In re Haley M. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Appellant Carol M. filed this appeal from an order of the juvenile court that terminated jurisdiction over appellants teenaged daughter Haley M., and returned Haley to the custody of her father, Leo M. Appellant primarily contends the juvenile court erred by appointing a guardian ad litem for Haley who was not an attorney, even though Haley was also represented by a court-appointed attorney. We will reject appellants contentions and affirm.

I. FACTS AND PROCEDURAL HISTORY

The legal issues raised on this appeal do not directly relate to the facts that gave rise to the dependency proceedings. Nevertheless, we will summarize those facts for purposes of background.

In this effort we are not assisted by appellants briefs, which fail to comply with the requirements of the California Rules of Court. Most especially, appellant has not provided an adequate statement of the significant facts, which are required to be properly supported by citations to the record. (Cal. Rules of Court, rule 8.204(a).) Although appellant occasionally provides citations to the record for some asserted facts, there are also many whole pages of her briefing that resort to extensive narratives without any record citations to support the alleged facts. In addition, many of the facts recounted do not appear to be relevant to the legal issue raised on appeal, concerning the appointment of a guardian ad litem for Haley. Instead, appellants narratives often seem to relate to other issues, such as issues arising from proceedings in other jurisdictions dating back to 1991, which are not properly before us.

The legal issues before us arise from dependency proceedings that began in 2004. These proceedings are the last chapter in a long-running series of disputes between appellant, who is the mother of Haley, and Leo M., who is the father of Haley. Haley was born in 1990, and is now almost 17 years old.

The proceedings presently before us began in November 2004, when Haley was 14. A juvenile dependency petition was filed under the terms of Welfare and Institutions Code[1] section 300 by the Solano County Health and Social Services Department (Department). The petition concerned Haley and her younger half brother, Lee M., both of whom had been living with their father, Leo M. The petition alleged that Haley was at substantial risk of serious physical harm because her father, Leo M., had become intoxicated, and he had hit Haley with a telephone, tried to throw an iron at her but missed, and then hit her with the base of the iron and his fists and kicked her in the stomach. It was also alleged that Lee M. was at risk because of the injuries inflicted on Haley, and because Lee M. had previously been disciplined by his father with a belt, which left bruises on him.[2]

Other allegations stated that this family had come to the attention of the authorities in 2002, when Leo M. overdosed on alcohol and sleeping pills, and a family maintenance plan was put into effect. Leo M. had also previously been arrested while on a family vacation in Paris, France, for punching Haley in the stomach. Leo M.s wife Ana, the mother of Lee M., had recently died, so there was no other adult in his household who could properly care for the minors.

The children were initially placed in protective custody, while their father received treatment for alcoholism and other services. Haley was not placed with appellant, because appellant was on probation for abducting Haley, with a no contact order that forbade appellant from contacting Haley. In addition, appellant was reported to have serious health problems, including emotional or mental problems, which affected her ability to provide proper care for Haley, who had not seen appellant for many years. Haley initially expressed a desire not to have contact with or live with appellant, who had previously kidnapped her from school, and who had done or said things that suggested she may have been delusional at times.

Certain issues that arose in the dependency proceedings concerned separate counsel for Haley, and the possible appointment of a guardian ad litem for her. At a detention hearing held on November 12, 2004, the juvenile court first stated it was appointing legal counsel for Haley, Kathryn Stahnke. The court reiterated this oral appointment in a minute order filed on November 12, 2004, in oral discussions at another hearing held on November 16, 2004, and in a formal order filed on January 6, 2005. Appellant was also represented by her own appointed counsel, deputy public defender Kevin Solt.

The court detained the minors at the detention hearing and set the matter for a jurisdictional hearing, which was held on November 23, 2004. At that hearing, Leo M. admitted certain of the allegations of the petition, which were sustained. A contested dispositional hearing was set for January 21, 2005, but was continued many times until April 1, 2005.

At the dispositional hearing held on April 1, 2005, the Department argued that Leo M. had made some attempts at dealing with his alcoholism, and it was now safe to at least temporarily and provisionally place the minors with him, under certain conditions. The court so ordered.

Although Haley was represented by appointed counsel, appellant sought the appointment of another person to act as a guardian ad litem for Haley, and appellant referenced and quoted in her request the provisions of former rule 1438 of the California Rules of Court, which provided that such a guardian may be an attorney or a CASA [court-appointed special advocate] . . . .

Haleys appointed counsel, Stahnke, later joined in the request. Stahnke stated that the appointment of a court-appointed special advocate, or CASA, as guardian ad litem would be advisable because appellant desired it, and because Stahnke felt there was a potential for conflict between Haleys wishes and Haleys best interests, which a CASA guardian ad litem could help Stahnke to resolve in her representation of Haley.

In response to appellants requests as joined by Stahnke, the juvenile court approved this request on April 29, 2005, and appointed a court-appointed special advocate or CASA, Maria Moses, to act as guardian ad litem for Haley. The guardian ad litem prepared reports for the court, attended hearings, and guided Haleys court‑appointed counsel, Stahnke, who continued to represent Haley.

Although the CASA guardian ad litem was not an attorney, unlike Haleys appointed counsel Stahnke, appellant did not object on this ground at the time of her appointment. Later, however, the CASA guardian ad litem apparently did not take all of the actions appellant wished. Leo M. made a request that he be allowed to take Haley and Lee on a foreign vacation with him. At the end of a pro se filing directed to opposing that request, which appellant filed on May 23, 2005, appellant stated that the appointment of the CASA guardian ad litem is not sufficient in this case as a matter of law although appellant did not elaborate on her reasons for so claiming, nor did she provide any authority for her statement, and appellant did not make a motion to withdraw the appointment of the guardian ad litem or appoint another.

In June 2005, Leo M. was arrested for driving while intoxicated, after he was involved in an auto accident while Haley and a friend were in the car with him, and while Lee was at home alone. This episode resulted in the filing of a supplemental petition by the Department, and the placing of the children in protective custody again. Leo M. admitted the new allegations, and the petition was later sustained.

On June 17, 2005, appellant filed in propria persona a notice of her intention to file a petition under the provisions of section 388, seeking to modify custody and have Haley placed with herself. Appellants attempt to gain custody of Haley was opposed by the Department, by Leo M., and by Haley herself, acting through her separate counsel. Appellants own counsel Kevin Solt also withdrew from the case, to be eventually succeeded by Thomas Van Zandt, after a period in which appellant was in pro per. The court ordered appellant to appear in court for a hearing on July 1, 2005. At the July 1, 2005 hearing, appellant through her attorney Thomas Van Zandt filed a formal petition to modify under section 388.

Haleys CASA guardian ad litem filed a report with the court for a July 18, 2005 hearing, recommending that Haley be continued in a placement with Lee M. in a neutral, non-relative protective setting. At the hearing held on July 18, 2005, the court retained Haley and Lee M. together in a protective foster care setting, out of their home. The matter was continued for another hearing on October 25, 2005.

On October 25, 2005, Haleys CASA guardian ad litem filed another report for the court. The report indicated that Haley and Lee M. continued to reside in a non-relative foster home in Vacaville. On November 8, 2005, the court ordered that all prior orders should remain in effect.

A contested review hearing was held on January 10, 2006. Appellant and her counsel declined to attend the hearing. At the hearing, Haleys father, Leo M., argued that he had made some progress in recovering from his alcoholism, and Haley had expressed the desire to live with him after she completed her upcoming final exams at school. Placement with appellant was not recommended by the Department, because the Department believed this would create a substantial risk of detriment to Haley. The court ordered that Haley could be placed with her father, and she was later again placed with him, together with Lee M.

In June 2006, however, a new problem came up. Haleys school work in high school had deteriorated. Leo M. attempted to place Haley in a boarding school, but Haley did not want to attend. Haley signed a document in which she stated that she wished to live with her mother instead, depending on the outcome of their scheduled summer visitation. However, after Leo M. decided not to place Haley in the boarding school, and allowed her to attend summer school instead, Haley ultimately decided that she wished to live with her father and attend summer school.

Continued placement with her father, and visitation with her mother, were Haleys expressed desires. It also appeared that the problems created by Leo M.s alcohol abuse had been somewhat reduced through treatment, and Haley was old enough to protect herself and complain about any further abusive conduct.

A hearing as to these issues was held on July 25, 2006, but appellant and her counsel again did not attend. The court ruled that its jurisdiction should be terminated, and that Haley and Lee M. should be returned to the legal custody of their father, Leo M., rather than being placed with appellant, although appellant received visitation rights. In August 2006, the court filed a series of orders and a final judgment so stating.

This appeal by appellant followed. On November 27, 2006, appellant filed a motion seeking to appoint new counsel for Haley, to represent her in this appeal. We ordered that attorney Deborah Dentler should be appointed to represent the minor Haley on appeal. Appellant filed an opening brief, and Haley has filed a brief opposing appellants arguments, in which the Department has joined. We have also previously denied appellants motion to strike the brief filed by Haley, in which the Department had joined.

II. DISCUSSION

Appellant claims in this appeal that the juvenile court erred by appointing, as guardian ad litem for Haley, the court-appointed special advocate (CASA), Maria Moses, who was not an attorney, even though Haley was also represented by a court-appointed attorney, Stahnke. Appellant contends that the juvenile court should have appointed another attorney to act as Haleys guardian ad litem and protect her interests, and that the appointment of a CASA as guardian ad litem was improper.

Haley, by contrast, contends appellant lacks standing to raise such claims regarding a guardian ad litem for Haley, and forfeited any such claims by failing to raise them in a timely fashion in the juvenile court, at the time the guardian ad litem was appointed. Haley also rebuts appellants claims on the merits. Haley further suggests that appellants briefing was inadequate, and we should consider sanctions for the filing of a frivolous appeal or for abuse of process.

We find initially that appellant does have appellate standing to raise issues concerning the propriety of the appointment of a guardian ad litem for Haley. However, we also find that appellant forfeited any such claim by her failure to raise it in a timely and proper fashion in the trial court. In addition, we reject appellants contentions on the merits. We thus affirm the trial courts rulings. Sanctions will not be imposed, despite the defects in appellants briefing.

A. Standing Issue

Haley first contends that appellant does not have standing on appeal to raise any appellate arguments relating to the propriety of the appointment of a guardian ad litem for Haley, because appellant was not legally aggrieved by that order concerning Haley. As this issue of standing concerns our appellate jurisdiction, we address it first. We will conclude, for the reasons that follow, that appellant does have standing to raise this issue on appeal.

Haley cites the case of In re Frank L. (2000) 81 Cal.App.4th 700, 703-704 (Frank L.). In Frank L., the court held that a mother did not have standing on appeal to raise the issue of whether her son had received effective assistance of counsel from his court-appointed attorney, because the mother in that case did not assert that this alleged ineffectiveness had any personal effect on her. (Ibid.) Haleys argument is that appellant similarly lacks standing to complain on appeal about the qualifications of Haleys guardian ad litem and Stahnkes continued representation of Haley.

However, the present appeal is not precisely comparable to Frank L., supra, in which the mother lacked standing, because she was not seeking to have the minor placed with her, and therefore the alleged problems with the minors counsel could have no personal effect on the mother. (Frank L., supra, 81 Cal.App.4th at pp. 703-704.) The present case by contrast involves claims that the guardian ad litem appointed for Haley was not properly qualified because she is not an attorney, and that this error allegedly resulted in harm to appellant, who had sought to place Haley with herself, rather than with Haleys father. Our case somewhat more closely resembles the case of In re Patricia E. (1985) 174 Cal.App.3d 1, 6-7 (Patricia E.), overruled on other grounds in In re Celine R. (2003) 31 Cal.4th 45, 60 (Celine R.). In Patricia E. the court held that a parent had standing to raise on appeal the question of whether independent counsel should have been appointed for the minor, an error which allegedly led to the failure to place the minor with the parent.

In addition, the case of In re Charles T. (2002) 102 Cal.App.4th 869, 873 (Charles T.), held that a mother had standing on appeal to challenge the trial courts failure to properly appoint a guardian ad litem for the minor, because this error allegedly affected the mothers rights regarding her relationship with her child. Those claims raised in Charles T. are analogous to appellants claims in the present case. Under these circumstances, we conclude appellant has standing on appeal to raise the issue of the propriety of the appointment of the guardian ad litem for Haley. (See ibid.)[3]

B. Forfeiture, Waiver, or Estoppel

Haley also contends that appellant is barred by principles of forfeiture, waiver, or estoppel from now contesting on appeal the propriety of the appointment of the guardian ad litem for Haley, because appellant in fact sought this course of action and did not object to it at the time. Similarly, Haley contends that appellant never properly raised in the trial court her present contentions that Haleys attorney, Stahnke, was providing inadequate representation to Haley, and that appellant may not do so now, for the first time on appeal.

Any error in the failure to properly appoint a guardian ad litem is not a jurisdictional error, and could be found to have been forfeited or waived by failure to properly raise it in a timely fashion in the trial court. (Charles T., supra, 102 Cal.App.4th at p. 873.) We therefore revisit the relevant procedural history, to determine whether the guardian ad litem question was timely raised in the trial court.

Haley was represented in this proceeding by appointed counsel, Stahnke, but appellant also sought the appointment of another guardian ad litem for Haley. The court on April 29, 2005, ordered that a CASA should act as such a guardian ad litem for Haley. This action was undertaken in response to appellants urgings, as joined by Stahnke, and appellant did not object at the time to the fact that the appointed CASA guardian ad litem was not an attorney. More than three weeks later, however, at the end of a pro se filing opposing Leo M.s request that he be allowed to take Haley and Lee M. on a foreign vacation with him, which appellant filed on May 23, 2005, appellant stated that the appointment of the CASA guardian ad litem is not sufficient in this case as a matter of law. Appellant did not elaborate on her reasons for so claiming, provide any authority for her claims, or make a motion to withdraw the appointment of the guardian ad litem or appoint another. Appellants present complaints regarding the need to appoint a guardian ad litem who was an attorney were not specifically raised in that filing, or at the time the guardian was appointed, so that the trial court could consider appellants claims in a timely fashion.

Under the circumstances of this case, appellants claims that the guardian ad litem was not properly qualified because she was not an attorney were forfeited. A party may not urge an action on the trial court, and fail to properly object to it at the time, yet later contend on appeal that this very same action was an error requiring reversal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222 (Dakota H.).) In the present case the record shows that appellant repeatedly sought the appointment of a guardian ad litem for Haley, but not that she ever contended such a guardian ad litem should be an attorney, nor did she timely object on that ground.

This is not a special case in which appellant should be allowed to raise the issue for the first time on appeal because a guardian ad litem was appointed for appellant, despite lack of her consent or proper notice to her. (See In re Enrique G. (2006) 140 Cal.App.4th 676, 682-683 (Enrique G.).) Appellant instead urged the court to appoint a guardian ad litem for Haley, had notice of the appointment, and did not object to that appointment at the time it occurred.[4](Dakota H., supra, 132 Cal.App.4th at pp. 221‑222.)

Similarly, although appellant complains in this connection that the legal representation provided to Haley by Stahnke was inadequate, she never complained on this ground in the trial court, nor did she file a motion to replace Stahnke. In fact, appellant praised Stahnke in the trial court for joining in the request to appoint a guardian ad litem, and appellant proclaimed in a filing that she and Stahnke had an amicable relationship since we both agree that the protection of the children is paramount . . . . Under these circumstances, appellants present objections to Stahnkes representation of Haley could also be deemed to have been forfeited in the trial court. (See Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)

Nevertheless, in order to ensure that nothing important is overlooked, we will also proceed to address the merits of appellants claims. (See Charles T., supra, 102 Cal.App.4th at p. 873.)

C. Appointment of Guardian Ad Litem and Related Claims

1. Guardian Ad Litem Issues

Appellant contends the juvenile court erred by appointing for Haley a CASA guardian ad litem who was not an attorney, citing In re Josiah Z. (2005) 36 Cal.4th 664, 679-681 (Josiah Z.).

Josiah Z. is not factually on point, but dealt instead with the question of whether counsel for a minor could move to dismiss an appeal the minor had brought, a question that does not arise here. However, if anything, certain dicta in Josiah Z. would indicate that appellants argument is flawed. Josiah Z. observed that although a guardian ad litem must be appointed for certain abused children under the provisions of the federal Child Abuse Prevention and Treatment Act (CAPTA), title 42 United States Code section 5101 et seq., and parallel provisions of state law, there is no requirement that such a guardian ad litem be an attorney. (Josiah Z., supra, 36 Cal.4th at pp. 679-681.) Indeed, Josiah Z. indicates that the role of guardian ad litem may be filled either by the minors appointed counsel or by a separate CASA guardian ad litem, as occurred in the present case: The childs CAPTA guardian ad litem will be either her attorney or, if no attorney has been appointed, a court-appointed special advocate [CASA]. (Josiah Z, supra, at p. 680.) Josiah Z. also specifically recognizes that there will be situations, such as this one, in which the guardian ad litem appointed in the trial court is not the appointed trial counsel. (Id. at p. 681; cf. In re Mary C. (1995) 41 Cal.App.4th 71, 75-80 [separate counsel may be appointed for a minor on appeal].)

In the present case, Haley was represented in the trial court by her own appointed counsel, and she also had a court-appointed special advocate, or CASA, to act as her guardian ad litem. Section 356.5 provides that an appointed child advocate such as a CASA shall have the same duties and responsibilities as a guardian ad litem. Thus, the procedure followed by the trial court in this case went beyond the applicable legal requirements, because Haley had both appointed counsel and a guardian ad litem. (See Josiah Z, supra, 36 Cal.4th at p. 680.)

Other authority cited and relied upon in Josiah Z., supra, 36 Cal.4th at page 682, footnote 8, also holds that the juvenile court need not appoint both separate counsel for a minor and a guardian ad litem who is an attorney. (Charles T., supra, 102 Cal.App.4th at pp. 878-879.) In Charles T., a mother whose parental rights were terminated following the denial of reunification services contended that the order should be reversed because no separate guardian ad litem was appointed for the minor. The appellate court held that for purposes of CAPTA and the implementing state law ( 326.5),[5]it is sufficient in California to appoint counsel for a child, who may also fulfill the role of a guardian ad litem. (Charles T., supra, at p. 879.) The court further held the guardian ad litems role in dependency proceedings differs from the role of a guardian ad litem in adversarial proceedings, where the minor is a plaintiff or defendant in the action: However, the function of a guardian ad litem in a dependency proceeding is different from that of a guardian ad litem in an adversarial proceeding and closer to the functions of minors counsel as described in section 317. Minors counsel advocates for the protection and safety of the child, investigates, participates in presenting evidence to the court, advises the court of the childs wishes, and investigates interests of the child beyond the dependency. . . . These functions are both more and less than a traditional guardian ad litem in an adversarial proceeding, but are precisely those necessary to provide an independent voice for the child. (Charles T., supra, at p. 878, fn. omitted.) The Charles T. court thus concluded that the duties of counsel as advocate for the minor, and the role of the guardian ad litem, were aligned, and therefore no conflict precluded effective performance of those roles. (Id. at p. 878.)

Appellant suggests that performance by an attorney of the role of guardian ad litem should have been required, even though Stahnke had previously been appointed as separate legal counsel to represent Haley. However, Charles T. indicates the opposite. Significantly, Charles T. noted that to require both legal counsel and a separate attorney as guardian ad litem in order to protect the minors interests leads to an unreasonable and absurd result by duplicating the roles of legal counsel, as well as duplicating the effort and expense involved. (Charles T., supra, 102 Cal.App.4th at p. 878, italics added.) The Charles T. court also explicitly noted that the court may, but need not, adopt the course taken here, of ordering that the minor be represented by appointed counsel, with a CASA guardian ad litem: Of course, CAPTA contemplates the possibility that a juvenile court may appoint both a CASA volunteer and counsel to protect the minors interests in an appropriate case but does not require both. (Id. at p. 879, italics added.)

Thus, in a case such as this one where a minor is represented by separate appointed counsel, the appointment of a guardian ad litem who is also an attorney is not required by law. (Charles T., supra, 102 Cal.App.4th at p. 879.) Therefore, we find no error.

Appellant, however, insists that appointment of another guardian ad litem who was also an attorney was required here, because Haleys appointed counsel had noted a potential for a conflict in the case as between Haleys expressed desires and Stahnkes perception of Haleys best interests, which caused Stahnke to join in appellants requests that a guardian ad litem should be appointed. We perceive no impropriety in the fact that Haleys counsel favored the appointment of a guardian ad litem. The statutory scheme and the relevant case law obviously contemplate that the appointment of a guardian ad litem, in addition to appointed counsel, will be advisable in some circumstances. (See  356.5; Charles T., supra, 102 Cal.App.4th at p. 879.) Further, the approved way to deal with such a potential for conflict was to take the action the court took in this case, as requested by appellant and Stahnke, and to appoint a CASA guardian ad litem, who was a separate person who could guide and direct the actions of appointed counsel. (See Charles T., supra, at p. 879.)

2. Unsupported Assertions of Inadequate Representation

In related arguments, appellant asserts that appointed counsel Stahnke did not provide effective assistance to Haley, apparently because she did not support placing Haley with appellant. Haley opposes these claims.

In assessing claims of ineffective assistance, we must determine whether counsels performance fell below the applicable standard of care, and specifically whether appellant has made an affirmative showing sufficient to overcome the presumption that counsels performance was adequate. (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711, 1716 (Emilye A.); see also Strickland v. Washington (1984) 466 U.S. 668, 689; People v. Pope (1979) 23 Cal.3d 412, 426; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) In addition, the appellant must affirmatively demonstrate prejudice, i.e., that the ultimate result of the proceeding would have been different if counsel had provided adequate assistance. (Emilye A., supra, at p. 1711.)

Appellant has not overcome the presumption of adequate performance. Her claims of ineffective assistance as to Haley are unsupported by relevant citations to any evidence in the record in her briefing, or to relevant case authority. For instance, appellant complains, without relevant citations to the record, as follows: On or about mid-September 2005, Hal[ey] requested of Kathryn Stahnke and of social services that she have unsupervised visitation with Appellant Carol M. Neither Attorney Kathryn Stahnke nor C.A.S.A. Maria Moses filed a 388 or any other motions on Hal[eys] behalf. Hal[ey] informed her older sister Natalie M. that she was upset because Stahnke did not return any of Hal[eys] phone calls. Natalie also related to Carol M. that Hal[ey] made a request to social services that she be removed from foster care and be placed with Carol M. and not to be returned to the home of Leo M. These alleged facts concerning Stahnkes failure to represent Haley properly in such matters as visitation orders or placement orders in September 2005 are not properly supported by any references to any evidence in the appellate record, and the clerks transcript of the proceedings in September 2005 also does not provide any evidence in support of them. In fact, in the reporters transcript for October 25, 2005, attorney Stahnke states that she will be requesting the court to allow Haley to have unsupervised visitation with appellant, because this was Haleys desire. Appellants bare allegation that Stahnke did not convey Haleys wishes to the court, unsupported by the record or any evidence, does not suffice to overcome the presumption of adequate representation. (See Emilye A., supra, 9 Cal.App.4th at pp. 1711, 1716.)

In this regard, appellant also faults Stahnke for not removing herself as counsel for Haley in April 2005, when Stahnke noted a potential conflict and urged the court to appoint a CASA guardian ad litem. However, as previously observed, appellant did not object at the time to the appointment of a CASA guardian ad litem, but in fact sought the appointment. Appellant also did not contend that Stahnke should remove herself from the case, but in fact praised Stahnke. Further, Stahnke was not legally required to withdraw as counsel merely because a guardian ad litem was to be appointed. Such a withdrawal would have left Haley without legal representation, and was unnecessary in light of the rule that a court may appoint both counsel and a non-attorney guardian ad litem for a minor. (Charles T., supra, 102 Cal.App.4th at p. 879.)

Thus, appellants various and numerous attacks on the performance of Stahnke as counsel for Haley, as well as her other attacks on the performance of the guardian ad litem and county counsel, are insufficient to rebut the presumption of adequate representation, because appellant does not point to any evidentiary proof in the record, and the record shows that Stahnke did provide adequate representation in support of Haleys desires. (See Emilye A., supra, 9 Cal.App.4th at pp. 1711, 1716.) In sum, appellant has failed to carry her burden of making an affirmative showing of ineffective assistance of counsel. (Ibid.)

3. Lack of a Showing of Prejudice

Even if we were to accept appellants claims of error regarding impropriety in the appointment of the CASA guardian ad litem who was not an attorney, or appellants claims regarding ineffective assistance of counsel for Haley, appellant would also be required to make a showing of prejudice, in order to justify reversal. (See Enrique G., supra, 140 Cal.App.4th at pp. 684-685 [the assertedly improper appointment of a guardian ad litem in dependency proceedings would require reversal only if prejudice was shown]; Emilye A., supra, 9 Cal.App.4th at p. 1711 [ineffective assistance of counsel must be prejudicial in order to justify reversal].)

In the present case no such prejudice has been shown. It does not appear to have made any difference as to the ultimate outcome that Haleys CASA guardian ad litem was not an attorney, because Haley was also represented by appointed counsel, and the adequacy of representation by Haleys counsel has not been rebutted. We also note that appellants various claims about visitation and other matters do not appear to be directly relevant to the ultimate outcome of this case, which ended in a final order placing Haley with her father, according to her expressed desires. Appellant, of course, was also represented by counsel, and could raise any issues she desired directly, without depending on Haleys counsel or guardian ad litem to do so. Thus, even if appellant had shown some error (see Emilye A., supra, 9 Cal.App.4th at pp. 1711, 1716), there was no adequate showing of prejudice to justify reversal. (Ibid.; Enrique G., supra, 140 Cal.App.4th at pp. 684-685; see also Celine R., supra, 31 Cal.4th at pp. 59-60 .)

D. Other Issues

Appellant also attempts to raise various other issues, which are not properly before us. Appellant refers to issues concerning other court orders, sometimes going back many years, to at least 1991, and relating to the placement of Haley with her father during prior proceedings in the 1990s. The time to appeal from those proceedings expired years ago, and those proceedings and orders are not before us in this appeal, which arises only from the order of the trial court terminating the most recent dependency proceeding, which had been instituted in 2004. The only legal issues raised in this appeal, filed from the order terminating the latest dependency proceeding that had been begun in 2004, are with regard to appellants claims concerning the appointment of a guardian ad litem for Haley, and we have rejected those claims.

Appellant complains more generally that the juvenile courts order terminating jurisdiction in the present proceeding leaves Haley in the custody of a father with a previously demonstrated alcohol abuse and violence problem. Appellant seems to claim that the trial courts custody order and its order terminating jurisdiction should be reversed because Haleys CASA guardian ad litem was legally unqualified and conflicted. We disagree. As discussed above, there was no legal error in the placement order arising from the fact that Haleys CASA guardian ad litem was not a lawyer. (See Charles T., supra, 102 Cal.App.4th at p. 878.)

Finally, Haley suggests that appellants briefing was inadequate or misleading,[6] that this appeal was frivolous, and that the appeal may constitute abuse of process by appellant, her counsel, or Ronald Mazzaferro, who assisted appellant in this litigation. Haley also suggests the imposition of sanctions may be warranted.

However, Haley did not file a separate motion for sanctions, properly supported with evidence, as required by the applicable provisions of the rules of court regarding a motion seeking imposition of sanctions. (Cal. Rules of Court, rule 8.276(e)(2).)

In any event, we would be unable to conclude that this appeal is so totally and completely without all arguable merit as to justify an award of sanctions on appeal, under the demanding standard set forth in the case of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty). It is true that appellants briefs were not in compliance with the applicable requirements of the rules of court, especially regarding the requirement that there should be a statement of significant facts, with every fact stated properly supported by citations to the record. (Cal. Rules of Court, rule 8.204(a).) Her arguments were also difficult to understand and included long digressions as to issues that were not relevant to the guardian ad litem issues she sought to raise on appeal. However, appellants arguments were not totally and completely without all arguable merit, and appellant actually prevailed on one procedural issue, relating to her appellate standing. Therefore, we would not award appellate sanctions in any event. (See Flaherty, supra, at p. 649.)[7]

III. DISPOSITION

The orders of the juvenile court are affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

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[1] All subsequent statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

[2] Appellant does not raise any issues on appeal as to Lee M., and therefore we do not discuss any issues relating to him, except insofar as they may be relevant to Haley.

[3] Haley also questions whether the notice of appeal filed by appellant was sufficient to raise this issue on appeal. The notice of appeal does seek to raise guardian ad litem issues. We therefore conclude the notice of appeal is sufficient to raise this guardian ad litem issue. (See In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1115.)

[4]In her reply brief, appellant contends for the first time that she properly preserved her present appellate arguments regarding a guardian ad litem and Stahnkes representation of Haley, by raising those issues in a petition for habeas corpus that she filed on December 5, 2005. That petition for habeas corpus is not part of the appellate record, and we have denied, by order dated April 4, 2007, appellants attempt to belatedly add her habeas petition and other documents to the record. The additional documents in question have been ordered stricken. In addition, we observe that a habeas corpus petition filed on December 5, 2005, could not constitute a timely objection to a court order filed on April 29, 2005.

[5] Section 326.5 provides, in pertinent part, that the Judicial Council shall adopt a rule of court providing for the appointment of a guardian ad litem for abused children, and that the guardian ad litem may be an attorney or a court-appointed special advocate. The relevant rule of the California Rules of Court, formerly rule 1438, now rule 5.660, so provides, stating:(f) CASA volunteer as CAPTA guardian ad litem ( 326.5) [] If the court makes the findings as outlined in (b) and does not appoint an attorney to represent the child, the court must appoint a CASA volunteer as the CAPTA guardian ad litem of the child. (Bold in original.) In the present case of course, the court-appointed both counsel for the minor, and a CASA guardian ad litem.

[6] Haley points specifically to appellants assertions in her opening brief that the termination of reunification services to Leo M. had been ordered by the court on November 23, 2005, even though no such order appears in the record. The record does show that Leo M. was admonished in July of 2005 that termination of reunification services might occur by November 23, 2005 if he did not comply with his case plan. In fact, reunification services were not terminated, but were continued, and ultimately those reunification efforts ended in the reunification of Haley and her father. Appellants briefs are replete with similar inaccurate assertions, unsupported by relevant citations to the record.

[7] Appellant contends in her reply brief that certain documents in the appellate record were not properly filed in the trial court, or were confidential documents that should not have been placed in the appellate record. These documents consist primarily of a disposition hearing report and its attachments that were prepared for the trial court, and lodged for its consideration, as shown by the transcript of a hearing held on December 14, 2004, without any objection at that time. The documents in question are presently included in the appellate record, certified as accurate by the clerk of the superior court, and they could be properly included in the appellate record, although they do not seem to directly relate to the issue of the appointment of a guardian ad litem. Similarly, appellant in her reply brief complains that a document has been improperly attached to the brief filed by Haley. This attachment consists of a redacted copy of an unpublished opinion of the federal bankruptcy court filed in the year 2001, long before the dependency petition in question here was filed in 2004. The attachment does not appear to have any relation to the legal issues raised in this appeal concerning appointment of a guardian ad litem for Haley, but Haley suggests the document relates to Haleys suggestion that sanctions should be imposed, so that the attachment of this unpublished opinion is proper under the California Rules of Court. We have rejected the suggestion that sanctions should be imposed, for the reasons stated in the text above, and this attachment therefore is not relevant to our decision. We therefore disregard it.