In re K.S.

Filed 3/5/07 In re K.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Barbara J. (Mother) appeals from orders of the juvenile court denying her petition for modification under Welfare and Institutions Code section 388[1]and terminating her parental rights to her daughter, K.S. Mothers principal contentions on appeal are that the juvenile court erred in denying her section 388 petition without holding an evidentiary hearing, that the juvenile court improperly terminated her parental rights pursuant to section 366.26 without sufficient evidence that K.S. was adoptable, and that Mother received ineffective assistance from her trial counsel who did not raise the issue of K.S.s adoptability in the juvenile court. For the reasons set forth below, we find no error and affirm the juvenile courts judgment.

Factual and Procedural Background

The Section 300 Petition and the Minors Initial Detention

K.S. was born in May 2001. When she was three years old, K.S. and her two older siblings were taken into protective custody by the Alameda County Department of Social Services (the Department).[2] On June 4, 2004, the Department filed a juvenile dependency petition pursuant to section 300, alleging that the oldest sibling had reported repeated instances of sexual abuse by Mothers former boyfriend, Kevin S., the father of the two younger siblings.[3]The petition alleged that Mother had beaten one of K.S.s sisters with switches and extension cords and had stabbed her with scissors. The petition further alleged that the oldest sibling, who was then 11 years old, had witnessed several instances of domestic violence between Mother and Kevin S. and had observed Mother snorting cocaine. The minors were ordered detained on June 7, 2004, but two of them (including K.S.) were released to Mother the next day.

Subsequent Detention and Disposition

Mother had a long history of incarcerations for theft and drug use and had earlier lost custody of two older children (K.S.s half-siblings), who had been placed in guardianships. On July 7, 2004, Mother was again arrested for shoplifting, leaving K.S. and her older sister, S.S., without a parent or guardian. On July 12, 2004, K.S. and S.S. were again ordered detained.[4]At a disposition hearing on August 9, 2004, both K.S. and S.S. were declared dependents of the court, and the court set a section 366.26 hearing for December 6, 2004.

K.S.s Special Needs and Initial Placements

K.S. has a history of developmental delays and emotional problems. Among other difficulties, she has engaged in self-injurious behavior and has been aggressive with other children. Her special needs made foster placement difficult, and following her initial detention, her placement was changed three times between June and August 2004. It was changed twice more in September 2004, after which K.S. was finally placed in a regional center family home on November 20, 2004.

The December 6, 2004 and February 17, 2005 Hearings

The Department report which was prepared for the section 366.26 hearing held on December 6, 2004, recommended a permanent plan of adoption for K.S. The Departments plan was to stabilize K.S.s condition so that she could be placed with her older sister, S.S. After the hearing on December 6, the juvenile court entered an order approving the permanent plan of adoption.

Shortly thereafter, on December 20, 2004, the court scheduled a hearing for February 17, 2005, on a petition for modification pursuant to section 388 that Mother had submitted on October 18, 2004. The petition requested that K.S. and S.S. be placed with her in a program at the prison where Mother was incarcerated. The Department opposed Mothers section 388 petition, on the grounds that the requested modification would result in the children being placed in a facility that would be unable to provide the consistency, attention, and care that they required. The Department also feared that K.S. would encounter younger children in the requested placement and that her aggressive behavior toward them might necessitate yet another change of placement. At the hearing on February 17, 2005, the court denied Mothers section 388 petition and scheduled a further hearing for K.S. on March 8, 2005.[5]

The March 8, 2005 Hearing

The Departments report for the March 8, 2005 hearing recommended that the juvenile court order the permanent plan of a planned living arrangement for K.S. with a specific goal of termination of parental rights and adoption for her. The report noted that K.S. had maintained her placement at the residential care facility and was beginning to show some improvement in her behavior. The Department stated that K.S. needed time in a secure placement so that her special needs could be identified and addressed before a permanent home could be found. At the March 8, 2005 hearing, the juvenile court ordered the permanent plan of placement in the residential care facility and accepted the Departments recommendation regarding termination of parental rights and adoption for K.S.

The August 24, 2005 Status Review Hearing

The Department prepared a report for the status review hearing on August 24, 2005. The report noted that K.S. continued to exhibit self-injurious behaviors and that she was aggressive toward other children. K.S. had been diagnosed with developmental delays, self-injurious behavior, and regulatory disorder motorically disorganized impulsive type, with a history of severe psychosocial stressors. Nevertheless, the report noted that the child had stopped pulling her hair out and was beginning to use her caregivers to help her stop some of her self-injurious behaviors. K.S.s caregivers reported that although the childs improvements were limited, they were seeing some progress. The report also noted that K.S.s caregivers were interested in adopting her. After the hearing, the juvenile court approved the permanent plan of adoption for K.S. It set a further hearing for January 30, 2006.

Mothers Section 388 Petition and the January 30, 2006 Hearing

Mother filed another section 388 petition on January 19, 2006, requesting that K.S. be placed with her in a program at Walden House on Treasure Island upon her release from prison, which was scheduled for January 16, 2006. In support of her petition, Mother attached her own declaration and exhibits documenting her successful participation in a number of programs and acceptance at Walden House. On January 24, 2006, the juvenile court set Mothers section 388 petition for hearing on January 30, 2006, the same day it had scheduled the section 366.26 hearing regarding K.S.

The Department filed a detailed section 366.26 report for the January 30, 2006 hearing. The report acknowledged that K.S. was extremely developmentally delayed and that she will benefit from special education to address possible cognitive and academic delays. It noted that K.S.s proposed adoptive mother was working closely with K.S.s special education preschool teacher. The report documented K.S.s mental and emotional difficulties and explained that she was receiving psychotropic medication to address her symptoms of aggression, self-injurious behaviors, and destruction of property. Her proposed adoptive mother had expressed the view that the medication was helping K.S. calm down a bit.

On the question of adoptability, the Departments report stated that a child welfare supervisor had conducted an adoption assessment and found that K.S. was adoptable and it appears likely that she will be adopted. The report noted that K.S. is a basically healthy child who has significant developmental delays and mental health issues. It explained that although K.S.s problems made the process of matching her with an appropriate adoptive family more complex, it did not rule out adoption as the most appropriate permanent plan for the child. K.S. had been placed in a highly skilled small family regional center home for 14 months, and the family with whom she was living had the skills and training necessary to deal with the challenges K.S. faced.

The report specifically addressed the qualifications of the proposed adoptive family. The proposed adoptive mother had been a licensed foster parent for over 15 years and had primarily cared for medically fragile children and children with special needs. Both the proposed adoptive mother and her adult daughter have received extensive training through the regional center, and they care for children with high levels of special needs. The Department opined that the proposed adoptive mother is very able to meet [K.S.s] needs as is evidenced by her excellent care of [K.S.] for the past 14 months. The report characterized the proposed adoptive mother as a strong advocate for the medical and educational needs of the children in her care and noted that [s]he also works hard at providing the children with a family like structure including recreational and entertainment activities. The Department also reported that K.S. calls her proposed adoptive mother mom and that she is very affectionate with both the proposed adoptive mother and her adult daughter.

The Department was blunt in its description of K.S.s problems and effusive in its praise for the prospective adoptive mother:

[K.S.] is a healthy child with developmental and mental health challenges that have interrupted several placements for her. That might cause one to conclude that she is not adoptable, but this is not at all the case. What [K.S.s] challenges mean is that she needs a special family who has the skills to help her overcome them. That is what [K.S.] has found with her proposed adoptive mother. When [K.S.] engages in the kinds of behaviors that caused so many placement changes for her in the past, the proposed adoptive mother comes up with ways to teach her alternative behaviors and the consequences of inappropriate behaviors. When problems with MediCal were difficult to solve the proposed adoptive mother hung in there and worked hard at making sure [K.S.] receives the services she needs. The proposed adoptive mother has shown love for [K.S.], great commitment to her, and the skills and abilities needed to help [K.S.] grow and prosper.

At the hearing on Mothers section 388 petition on January 30, 2006, Mother changed her request from one for placement with Mother to a request that Mother receive reunification services. The Department objected that the petition did not state a prima facie case that it would be in the best interest of the child to grant the mother reunification services, and urged that the hearing and the petition be denied. The juvenile court allowed argument on that issue. After hearing from counsel, the juvenile court denied Mothers petition without taking evidence from the parties. In her oral ruling, the juvenile court judge indicated repeatedly that she did not see how the requested modification would be in the best interest of K.S. She explained that the court generally grants liberal construction to these 388 petitions . . . [but] its still not demonstrated to me how the childs best interests would be promoted by granting reunification services to the mother and delaying permanency for the child to be in a land of the unknown in six months. Later during the same court session, the juvenile court terminated Mothers parental rights to K.S. pursuant to section 366.26.

Mothers Appeal

Mother filed a notice of appeal on March 8, 2006, from the juvenile courts order denying her section 388 petition. On November 15, 2006, we granted Mothers motion to amend the notice of appeal to include a challenge to the termination of her parental rights.[6]

Discussion

I. The Juvenile Court Did Not Abuse Its Discretion in Summarily Denying Mothers Section 388 Petition.

Mother argues that the juvenile court erred in denying her section 388 petition without holding a hearing. She contends that she was entitled to a hearing and that the juvenile courts decision violated her due process rights. We disagree.

A. Standard of Review

We review the juvenile courts summary denial of Mothers section 388 petition for abuse of discretion but resolve the constitutional issue as a matter of law. (In re Angel B. (2002) 97 Cal.App.4th 454, 460 (Angel B.); In re Anthony W. (2001) 87 Cal.App.4th 246, 250 (Anthony W.).)

B. The Prima Facie Showing Necessary to Trigger a Section 388 Hearing

Under section 388, [a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. ( 388, subd. (a).) If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing be held . . . . ( 388, subd. (c).)

A parent seeking modification of a juvenile court order under section 388 must make a prima facie showing to trigger the right to proceed by way of a full hearing. [Citation.] (In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) As the statutory language suggests, to make the required showing, the petitioner must show that: (1) there has been a genuine change of circumstances or new evidence and (2) revoking the prior order would be in the best interest of the child. (E.g., Anthony W., supra, 87 Cal.App.4th at p. 250.) The juvenile court need not order a hearing if the allegations of the petition, liberally construed, do not make a prima facie showing of both elements. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.); see also Cal. Rules of Court, rule 5.570(d).) The prima facie showing is made only where the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (Zachary G., supra, p. 806.)

C. Mother Failed to Make a Prima Facie Showing That Modification Would be in K.S.s Best Interests.

In this case, we need not decide whether Mother made a showing of changed circumstances, because it is apparent that she failed to make the requisite showing that modification of the order would be in the best interest of K.S. The statements in Mothers petition are directly largely at describing Mothers efforts to turn [her] life around by reciting classes and programs that she has completed. Regarding K.S.s interests, Mothers petition states only that [s]ince the minors came into custody they have not had regular visits with their siblings or biological family. [K.S.s] aggressive behavior has escalated since she came into custody. The mother has a strong bond with [K.S.] [and] believes she can appropriately care for the her [sic] special needs. The attached declaration makes the bare assertion that counselors at Walden House have assured Mother they can assist with K.S.s special needs. (This last point was pertinent to Mothers request to place the child with her at a Walden House program, which had been the original basis for the section 388 petition, but apparently was not relevant to Mothers modified request, made at the January 30 hearing, for reunification services instead.)

First, the conclusory statements in the petition are insufficient to meet Mothers burden of making a prima facie case that K.S.s best interests would be served by the proposed modification. A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. [Citation.] If a petitioner could get by with general, conclusory allegations, there would be no need for an initial determination by the juvenile court about whether an evidentiary hearing was warranted. In such circumstances, the decision to grant a hearing on a section 388 petition would be nothing more than a pointless formality. (In re Edward H. (1996) 43 Cal.App.4th 584, 593.) General averments are not enough to meet the statutory standard; specific allegations describing the evidence constituting the proffered changed circumstances or new evidence are required. (Ibid.)

Second, even if they are accepted at face value, Mothers statements do not suffice to meet her burden because they do not address her childs best interests. Mothers statements concerning her completion of substance abuse programs and parenting classes do not by themselves support a finding that K.S.s interests would be served by granting Mother reunification services at this late stage in the dependency proceedings. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348 [upholding summary denial of section 388 petition] (Ramone R.).) Mothers willingness to participate in services is not a compelling consideration at this point in the process. (Ibid.; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451 [hearing denied where mothers participation in drug recovery program and receipt of services for her developmental delays did not show that modification of guardianship order would be in childs best interest].) Nor does her claim that she has a strong bond with K.S. counter the evidence in the record that K.S. is making progress in her current foster placement. (See In re Aaron R. (2005) 130 Cal.App.4th 697, 706 [petitioners conclusory allegation that she had formed a bond with child held insufficient to rebut the mass of evidence in the record indicating that [the child] was thriving under [his foster mothers] care] (Aaron R.).) In fact, Mothers assessment of the strength of her bond with K.S. is of questionable value, given that because of her incarceration, she had neither seen nor spoken with K.S. for 14 months at the time the section 388 petition was filed.[7] (See Ramone R., supra, at p. 1348 [mothers insight into childs personality was of questionable value because she had not seen child for a year].) As noted above, the Departments section 366.26 report states that, K.S. calls the proposed adoptive mother mom, and is affectionate with the proposed adoptive mother and her adult daughter.

Finally, Mothers petition was insufficient because it did not assess K.S.s needs and explain how those needs would be met by the proposed modification. (Aaron R., supra, 130 Cal.App.4th at p. 706 [ 388 petition failed to state prima facie case because it contained nothing assessing [the childs] needs and the comparative advantages of the two homes].) After termination of reunification services, a presumption arises that continued care is in the best interest of the child. (Marilyn H., supra, 5 Cal.4th at p. 310; Angel B., supra, 97 Cal.App.4th at p. 465 [there is a rebuttable presumption that, in the absence of continuing reunification services, stability in an existing placement is in the best interest of the child].) This is especially true when the placement is leading to adoption by the long-term caretakers. (Angel B., supra, at p. 465.) To rebut this presumption, Mother must make some factual showing that the best interests of the child would be served by modification. (Ibid.)

Here, Mother has not done so. Reunification services had been terminated on August 9, 2004. The record before the juvenile court showed that K.S. was placed in a highly skilled, small regional center home with a family who has specialized training in dealing with children with special needs. K.S.s proposed adoptive mother and primary caregiver has been a foster parent for over 15 years and has primarily cared for medically fragile and special needs children. Both the proposed adoptive mother and her adult daughter run the home and have received extensive training through the Regional Center. The proposed adoptive mother has the support of her grown children, family members, friends, and church community. According to the Department, K.S. has thrived in this setting and has become a loved member of the proposed adoptive family. Significantly, the Department also reports that the proposed adoptive mother has had some success in improving some of K.S.s problematic behaviors. K.S.s placement with the proposed adoptive mother came after five unsuccessful placements in the first few months after her initial detention.

Mothers petition presents nothing to counter this record evidence and does not explain how the modification would be in K.S.s best interest. As a consequence, Mother failed to make a prima facie case that the proposed modification would be in the childs best interests. As the juvenile court observed, this is the first stability [K.S.] has had, and shes been able to be there and thrive in 14 months with a family that loves her and cares about her and is committed to her. She deserves to have permanency and not have it disrupted. The juvenile court did not abuse its discretion in denying Mother a hearing on the section 388 petition.[8]

D. The Juvenile Court Did Not Violate Mothers Right to Procedural Due Process.

Mother also contends that where credibility is an issue, the denial of an evidentiary hearing on a section 388 petition constitutes a denial of procedural due process. Mother relies upon In re Clifton V. (2001) 93 Cal.App.4th 1400 (Clifton V.). In that case, the appellate court held that the juvenile court had violated the mothers procedural due process rights when it resolved her section 388 petition on the parties written submissions and the arguments of counsel, despite the fact that statements in the paternal grandmothers declaration directly contradicted statements in the mothers verified petition. (Id. at p. 1405.) Under those circumstances, which the Court of Appeal characterized as a clear credibility contest between mother and the paternal grandmother, the juvenile court should have received mothers oral testimony and permitted cross-examination of the paternal grandmother and the social worker who prepared a report on which the juvenile court relied. (Ibid.)

Clifton V. is inapposite. First, unlike the case before us, in Clifton V. it appears that the juvenile court concluded the mother had made the requisite prima facie showing, and therefore granted a hearing on the mothers section 388 petition, although no live testimony was permitted. (Clifton V., supra, 93 Cal.App.4th at pp. 1404-1405.) In the case now before us, in contrast, the juvenile court properly denied Mothers section 388 petition without a hearing, because Mother had failed to make a prima facie case for modification. Here, the issue was not whether, having made a prima facie showing that required the juvenile court to conduct a hearing, Mother was entitled to present live testimony. Rather, the question was whether Mother made the requisite prima facie showing in the first instance. (Angel B., supra, 97 Cal.App.4th at p. 461.)

Second, in the case before us, unlike Clifton V., there was no credibility issue for the juvenile court to resolve. In support of her petition, Mother submitted her declaration, as well as letters and certificates documenting her successful participation in a number of programs. None of this information was disputed in the juvenile court. On appeal Mother does not identify the alleged credibility issues that would require an evidentiary hearing.[9]

Accordingly, we hold that the juvenile courts summary denial of Mothers section 388 petition did not violate Mothers rights to procedural due process.

II. The Juvenile Court Did Not Err in Terminating Mothers Parental Rights and Ordering K.S. Placed for Adoption.

Mother also argues that the juvenile court erred in terminating her parental rights because there was insufficient evidence to support a finding that K.S. was adoptable. To the contrary, we conclude that substantial evidence supports the juvenile courts finding.

A. General Principles

Section 366.26, subdivision (c)(1) authorizes the juvenile court to terminate parental rights and order a dependent child placed for adoption if the court determines by clear and convincing evidence that it is likely the child will be adopted. ( 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204 (Jerome D.).) The question of adoptability focuses on whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt the child. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (Carl R.).) For a child who is generally adoptable, it is not necessary that the child already be placed in a preadoptive home or that a proposed adoptive parent be waiting. (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).)

It is the social services agencys (here, the Departments) burden of presenting evidence to the court sufficient to support a finding of adoptability. (See  366.26, subd. (c)(1); In re Chantal S. (1996) 13 Cal.4th 196, 210.) Where the merits are contested in the juvenile court, a parent is not required to object to the social service agencys failure to carry its burden of proof on the question of adoptability. [Citation] (Brian P., supra, 99 Cal.App.4th at p. 623.) On appeal, our review of the juvenile courts determination of adoptability is limited to whether its findings are supported by substantial evidence. (Carl R., supra, 128 Cal.App.4th at p. 1061.)

B. Substantial Evidence Supports the Juvenile Courts Finding That K.S. is Adoptable.

In her brief on appeal, Mother discusses the record evidence concerning K.S.s developmental delays and mental and emotional problems. On the basis of this evidence, she contends that there is nothing in the Departments reports that established K.S.s general adoptability or the probability of her adoption. Mother argues that because K.S. is not generally adoptable, then there must be at least one qualified prospective adoptive family willing to adopt a child. In essence, her argument is that because the adoptive home study for K.S.s prospective adoptive family needed to be updated, no such family existed. We disagree.

First, regarding K.S.s adoptability, Mother ignores crucial portions of the report prepared for the section 366.26 hearing, which state that a child welfare supervisor conducted an adoption assessment and found that [K.S.] is adoptable and it appears likely that she will be adopted. The report acknowledges that K.S.s developmental delays and mental health issues made the process of matching her with an adoptive family more complex, but states that these difficulties do not rule out adoption as the most appropriate permanent plan for [K.S.]. The report goes on to discuss the success K.S. has had in her current placement with her prospective adoptive family, and notes that the family has the skills needed to assist K.S. with her problems. The report also states that K.S.s proposed adoptive mother has helped K.S. improve some of her troublesome behaviors and that K.S. has thrived in this setting and has become [a] loved member of the proposed adoptive family. Significantly, the proposed adoptive mother wishes to adopt K.S. and is committed to caring for her despite the fact that this will take a lot of work. A prospective adoptive parents . . . interest in adopting [the child] is evidence that the childs age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.)

Second, contrary to Mothers contention, that the adoptive home study for K.S.s prospective adoptive family needed to be updated does not mean that no qualified adoptive family was available. As the Departments report states, the prospective adoptive family is a licensed foster family that has adopted children in the past. The prospective adoptive mother has been a foster parent for over 15 years. The Department report indicates that [n]othing was discovered during the foster care licensing homestudy assessment or a previous adoption homestudy that indicates any member of this household has an undesirable criminal record. As a licensed foster parent, the prospective adoptive mother has already been screened. (See In re L. Y. L. (2002) 101 Cal.App.4th 942, 956 [noting that licensed foster parents had already been screened for factors required in adoption assessment report]; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482 (Diana G.) [any potential inadequacy in adoptability assessment of prospective adoptive families was harmless where all families were licensed foster families who were required by statute to submit, inter alia, evidence of reputable and responsible character, criminal record clearance, employment history, and ability to meet childs needs].) Furthermore, even if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies go to the weight of the evidence and may ultimately prove insignificant. (In re John F. (1994) 27 Cal.App.4th 1365, 1378 [Substantial compliance with the assessment provisions has been deemed enough], citing Diana G., supra, at pp. 1481-1482.) Furthermore, the section 366.26 hearing was merely the preliminary step to adoption, and the prospective adoptive family will undergo further evaluation before any adoption can be approved. (Diana G., supra, at pp. 1481-1482.)[10]

We conclude that substantial evidence in the record supports the juvenile courts finding that K.S. was likely to be adopted.

III. Mother Has Failed to Substantiate Her Claim of Ineffective Assistance of Counsel.

Finally, Mother contends that she received ineffective assistance of counsel when her trial counsel failed to raise the issue of adoptability in the juvenile court. Mother asserts that there was no reasonable strategic or tactical reason why her counsel did not raise this issue as the minor was neither generally nor specifically adoptable. According to Mother, trial counsels failure to raise the adoptability issue demonstrated ineffective assistance of counsel. On the record before us, we do not agree.

To make a claim of ineffective assistance of counsel, Mother must demonstrate both that: (1) her appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates, and (2) absent this failure, it is reasonably probable that a determination more favorable to her interests would have been reached. (Diana G., supra, 10 Cal.App.4th at p. 1479.) In general, the proper way to raise such a claim in a juvenile dependency matter is by writ of habeas corpus, not appeal. (In re Darlice C. (2003) 105 Cal.App.4th 459, 463.) Establishing 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 a trial is typically motivated by considerations not reflected in the record. (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.) Evaluation of trial counsels decisions and tactics usually requires consideration of matters outside the appellate record, and therefore the issue must be adjudicated by means of a petition for writ of habeas corpus. (Darlice C., supra, at p. 463.)

A claim of ineffective assistance of counsel may be raised on direct appeal, however, where there simply could be no satisfactory explanation for trial counsels conduct. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254, overruled on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Mother apparently seeks review under this exception by claiming that there was no reasonable strategic or tactical reason for trial counsels failure to raise the adoptability issue. (See In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1 [party invoked this exception to have ineffective assistance claim reviewed on direct appeal by arguing that there was absolutely no advantage to counsels failure to object to district attorneys participation in dependency proceedings].) We will therefore decide Mothers claim of ineffective assistance of counsel on the merits, rather than deferring decision to a possible later habeas corpus proceeding. (Id. at p. 98.)

At the outset, we observe that Mother devotes only two short paragraphs in her opening brief to this argument, and nothing at all in her reply brief to respondents contrary position. Turning to the merits, Mothers claim of ineffective assistance fails. First, she has failed to demonstrate that there was no satisfactory explanation for her trial counsels conduct. As we described in detail in the preceding section, there was ample andexcept for the completion of the updated home studysubstantial evidence in the record to support the juvenile courts finding that K.S. is adoptable and that a prospective adoptive family is willing to adopt her. In light of that evidence, counsels failure to raise the adoptability issue does not seem unreasonable, much less does it appear that trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates[.] (Diana G., supra, 10 Cal.App.4th at p. 1479.)

Second, Mother has failed to establish that even if counsel was ineffective on this point, it is reasonably probable that the juvenile court would have reached a result more favorable to Mothers interests. Given the record evidence of: (1) Mothers long history of inability to care for her children; (2) ample factual support for the Departments conclusion that K.S. was adoptable; (3) the undisputed fact that K.S.s behaviors have improved in her current placement; and (4) K.S.s current caregivers skills, qualifications and desire to adopt her, Mother cannot show a reasonable probability that the juvenile court would have reached a different result. (Diana G., supra, 10 Cal.App.4th at p. 1479.)

Mothers claim of ineffective assistance of counsel is thus without merit and not a basis to reverse the juvenile courts judgment.

Disposition

The judgment is affirmed.

MILLER, J.*

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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[1]All statutory references are to the Welfare and Institutions Code.

[2] Although two of K.S.s siblings were also the subject of the proceedings below, the present appeal concerns only K.S.

[3] The Department later filed amended petitions on July 9, July 12, and July 29, 2004.

[4] On July 19, 2004, Kevin S. signed a formal waiver of reunification services. He is not a party to this appeal.

[5]The Department had also recommended that the court terminate Mothers parental rights with respect to K.S.s older sister, S.S. The court did so at the hearing on February 17, 2005. Mother appealed from the juvenile courts order terminating her parental rights to S.S. This court dismissed her appeal on September 20, 2005.

[6] After the Department argued in its responsive brief that Mothers failure to appeal from the order terminating parental rights rendered her appeal from the denial of her section 388 petition moot, Mother moved to amend her notice of appeal.

[7]At the time of the hearing, K.S. was 4 years and 8 months old.

[8]The juvenile court commented that although I believe that the Mother has done quite a bit in addressing her issues, its still not demonstrated to me how the childs best interests would be promoted by granting reunification services to the mother and delaying permanency for the child to be in a land of the unknown in six months. Were talking about time, which can be an eternity for a four-year-old, six months, because that would be the delay. And then what; where are we at that point? Its an unknown. [] But we do know where we are right now with the child in her placement, and we know that her best interests are being promoted by that placement.

[9]As the court in Angel B., supra, explained, the right to an evidentiary hearing attaches only after a party has made the requisite prima facie showing. (Angel B., supra, 97 Cal.App.4th at p. 461.) The court noted that the statutory scheme embodied in section 388 is constitutional because of its many safeguards. One such safeguard . . . is that if a parent makes a prima facie showing of a change of circumstance such that a proposed change in custody might be in the child's best interest, then the juvenile court must hold a hearing. Thus, the real issue here is . . . whether Mother made the requisite prima facie showing; if she did, then we shall simply reverse and direct the juvenile court to hold the hearing due process does require. (Angel B., supra, at p. 461.)

[10]Mothers reliance on Jerome D., supra, 84 Cal.App.4th 1200, in this context is misplaced. In that case, the court held that there was insufficient evidence of adoptability where the agencys adoption assessment did not state whether there were any approved families willing to adopt a child of the minors age, physical condition, and emotional state. (Id. at p. 1205.) In addition, the assessment had failed to consider the minors close relationship with his mother or his prosthetic eye, which required care and treatment. (Ibid.) Furthermore, the assessment did not address the criminal or child protective services history of the proposed adoptive parent. (Ibid.) No such facts are present here.

* Judge of the Superior Court of San Francisco County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.