In re Nathaniel C.

Filed 10/13/06 In re Nathaniel C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.

Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael D. Randall, under appointment by the Court of Appeal, for Appellant Nathan C.

Kathleen Murphy Mallinger, under appointment by the Court of Appeal, for Appellant Nicholas C.

Sharon S. Rollo, under appointment by the Court of Appeal, for Appellant Kendra C.

Dennis E. Wagner, Interim County Counsel, and Dawn M. Messer, Deputy County Counsel, for Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Minor.

Appellant Patricia C. (mother) appeals from the juvenile court’s order terminating her parental rights as to her son, Nathaniel C. (the child). She argues that the order should be reversed because the juvenile court erred in denying her Welfare and Institutions Code section 388^[1] petition and because the court erred in failing to apply the sibling exception (§ 366.26, subd. (c)(1)(E)). Three of the child’s siblings have also appealed the court’s order. We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

Mother lived with her five children: Nathan (5 years 11 months old), the child (5 years 3 months old), Nicholas (4 years 5 months old), Kendra (3 years 1 month old), and Dana (2 years 3 months old) (collectively, the children). Mother’s brother and his wife lived in the same house with mother and her children. Mother suffered from Hodgkin’s Lymphoma. On August 17, 1999, a social worker responded to a referral alleging that Nathan had burn marks on him. The social worker went to his house and found it infested with flies. The home had rancid food on the countertops and in the refrigerator, and there were food, clothes, and debris on the bedroom floors, and an overwhelming stench. The police came and declared the home unfit for human occupancy. Furthermore, mother’s brother and his wife were arrested for child endangerment because they were both under the influence of drugs. Nathan was taken to the hospital and was diagnosed with ringworm. The children were taken into protective custody and placed with the maternal grandmother.

The Department of Children’s Services (DCS) filed section 300 petitions on behalf of the children. The petitions alleged that the children had suffered harm by the negligent failure of mother to provide them with adequate food, clothing, shelter, or medical treatment. (§ 300, subd. (b).) The petition specifically alleged that mother had a medical condition that inhibited her ability to care for the children, that mother should have known about the drug usage in her home, that mother failed to seek medical attention for one of the children, and that the children’s home was unfit for human occupancy.

On August 19, 1999, the court detained the children in the temporary custody of DCS. However, the court placed them with mother, on the condition that she and the children reside in the maternal grandmother’s home. Then, on September 22, 1999, the court found that the children came within the provisions of section 300, subdivision (b), declared them dependents of the court, and placed them in mother’s custody. The court ordered mother to participate in a family maintenance plan.

Section 387 Petitions

On March 24, 2000, DCS filed section 387 supplemental petitions alleging that the previous disposition had not been effective because mother left the children in the care of Richard W., who hit Kendra. The petitions also alleged that Richard failed to change Dana’s diaper, and Dana developed a severe diaper rash resulting in welts. In addition, the house in which the children were living was without gas, heat, or hot water and was filthy. The bathrooms were locked and inaccessible to the children, and there was inadequate food. The police found the home to be unfit for human occupancy. Mother and Richard W. were arrested. The court removed the children from mother’s custody and detained the child with the maternal grandmother, Dana with his father,^[3] and the other children in foster care.

On May 4, 2000, DCS filed an amended section 367 petition, adding the allegation that Kendra had been sexually abused.

On May 26, 2000, the court determined that the children came within section 387, removed them from mother’s custody, and ordered mother to participate in reunification services. The court ordered visitation to be arranged by DCS in the maternal grandmother’s home. The court scheduled a 12-month review hearing for September 22, 2000.

12-month Review

The 12-month review hearing was held on November 2, 2000, after being continued from September 22, 2000. Although mother testified that she completed a parenting class, she never submitted any proof of completion to the social worker. Mother was also required to complete a childcare and development class, protect the children from Richard W., maintain a safe and sanitary home for the children, and demonstrate that she could financially provide for the children. There was no evidence that she had completed any of those objectives. Mother saw the child approximately once every two months since he lived with the maternal grandmother. However, she would only stay for a few minutes to get money from the grandmother. The court terminated mother’s reunification services and set a section 366.26 hearing for March 5, 2001. The hearing was continued.

Section 387 Petition

On September 27, 2001, DCS filed another section 387 petition regarding the child because the maternal grandmother died. The child was temporarily placed with the maternal grandmother’s sister, Jean, and then with the in-laws of Jean’s daughter (the G.’s). Mother’s whereabouts were unknown.

On October 22, 2001, the court ordered long-term foster care as the permanent plan for all the children. The court also ordered sibling visitation to be arranged by DCS.

On November 6, 2001, the court sustained the section 387 petition and confirmed the permanent plan of long-term foster care. The child remained with the G.’s. The child’s needs were being met in that placement, and the child had made a positive adjustment to the placement.

Status Review Hearings

April 22, 2002

In an April 22, 2002, status review report, the social worker reported that the child was bonded with the G.’s and enjoyed being a member of the family. The G.’s adored him and expressed a desire to adopt him in the future. The social worker believed that the G.’s were caring and supportive. The social worker also reported that the child was grieving his grandmother’s death, so she set up therapy sessions for him. The social worker noted that the last visit the child had with Kendra, Nathan, and Nicholas (the siblings) was in October 2001. There were some problems that occurred with the visits and behavioral problems after the visits, so the previous social worker temporarily suspended the visits. The G.’s were not opposed to reinstating the sibling visits. At the review hearing, the court determined that long-term foster care continued to be appropriate.

October 22, 2002

By the time of the October 22, 2002, status review hearing, the child was eight years old and had been living with the G.’s for approximately one year. He continued to bond with the family. The G.’s were dedicated to meeting his needs. The social worker reported that there had been no visitation during the last six months. The court ordered that long-term foster care remain the permanent plan.

April 22, 2003

The social worker prepared a status review report, in which she reported that the child continued to bond with the G.’s, and the G.’s continued to meet his needs. The social worker further reported that there had been no visitation during the last six months. At the hearing, when the court asked about visitation, father’s counsel stated that the last order for visitation stated that if the children wanted to have contact with the parents or their siblings, they could. The court authorized the social worker to arrange visitation “if appropriate.” The court ordered the child to continue to be maintained in the G.’s home.

September 22, 2003

The social worker prepared another report, in which she stated that the child continued to enjoy living with the G.’s and participating in family activities. The child referred to his foster parents as “mom” and “dad.” In addition, the social worker reported that there had been no visitation in the last reporting period and that she was in the process of assessing the appropriateness of visitation between the child and Kendra. (Kendra had been placed in more than 20 foster care placements in the last three years and needed time to adjust to placements before having sibling contact.) The court ordered long-term foster care to remain the permanent plan.

March 22, 2004

In a March 22, 2004, status review report, the social worker reported that the child continued to do well in the G.’s care. She also reported that mother lived out of state in Minnesota and spoke with the social worker once regarding the child. Mother did not call back to arrange visitation. As to sibling visitation, the social worker attempted to arrange a visit, but had difficulty due to the many placement changes of the siblings. The court ordered long-term foster care to remain the permanent plan.

September 22, 2004

In a September 22, 2004, status review report, the social worker noted that the child was diagnosed with Attention Deficit Hyperactivity Disorder. The social worker also reported that the child was well adjusted to his placement, and that the G.’s were able to meet his emotional, physical, and developmental needs. There had been no sibling visitation during this reporting period, and the social worker simply stated that visitation “will continue to be explored.” The court ordered long-term foster care to continue.

March 22, 2005

In a March 22, 2005 status review report, a different social worker named Paul Erkel recommended that the child be adopted by the G.’s. He reported that the child was extremely fond of both foster parents and that the child clearly felt like he was a part of their family. The social worker further stated that mother had contacted him (the social worker) in October 2004 and asked to begin visits with the child. After speaking with his supervisor and an adoptions specialist, the social worker determined that the child’s emotional progress could be impeded by these visits. This determination was made in conjunction with the G.’s decision to adopt the child. The social worker opined that the child could be confused by the visits and strongly believed that it was not in the child’s best interests to have any contact with mother. The social worker noted that mother had not expressed any interest in visiting the child for several years until recently. In addition, the social worker reported that the child expressed ambivalence when asked about his mother. The child did, however, have a strong desire to visit his siblings. The social worker did not oppose this idea, as long as the visit did not involve mother. Although there had been no sibling visitation during that reporting period, there had been an attempt to arrange a visit. However, the social worker rejected the attempt because the visit involved mother.

Mother was present at the hearing. The court continued minor in the G.’s home. The court set a contested hearing for April 13, 2005.

On April 13, 2005, mother was present at the contested hearing. The court set a section 366.26 hearing for August 11, 2005. The court authorized the social worker to arrange for visitation for the parents and siblings, if appropriate. Counsel for DCS informed the court that the social worker did not feel that visitation was appropriate due to the long lapse of time since the last visit. The court then asked about sibling visitation, and counsel for DCS said the social worker planned on setting up a sibling visit, and, if the visit was not detrimental to the child, visitation would continue.

Mother’s First Section 388 Petition

Mother filed a section 388 petition on April 14, 2005, requesting weekly visitation with the child. As to changed circumstances, the petition alleged that mother had a stroke in October 2001, but her condition had now stabilized. Mother stated that she was now able to take care of the children. She further stated that she moved from Minnesota to San Diego, that she had been visiting with the child’s siblings, and that one of the children was going to be returned to her custody under family maintenance. Mother alleged that weekly visitation would be in the best interests of the child because it would nurture their relationship. Furthermore, since she was visiting with the child’s siblings, she did not want the child to feel left out. Mother also asserted that since she may have one of the children back with her, the child should be able to visit with that sibling.

The social worker responded to the section 388 petition in a special report. He was opposed to any visitation because mother had barely made any effort to visit the child since September 2001 and had not had any contact with him since then. The current social worker was assigned to the case in September 2004 and acknowledged that mother contacted him in October 2004 to ask for visitation. The previous social worker had only spoken with mother once during the prior two years. The current social worker asserted that the child had exhibited tremendous growth, both emotionally and educationally, in the past year. Furthermore, the child was bonded with the G.’s to the point that he looked to them as his parents and loved them as such. Thus, the social worker opined that the proposed weekly visitation with mother would probably cause tremendous emotional trauma and upheaval for the child, and at worst, “be the source of irreparable emotional damage.” The social worker felt that it would be in the child’s best interests not to have visits with mother.

At the hearing on May 11, 2005, mother’s counsel claimed that mother had not been in regular contact with the child because of her health condition. However, her health condition recently improved. The child’s counsel asserted that the child was psychologically bonded to the G.’s as his parents and that he wanted them to adopt him. Furthermore, the child’s recollections of his mother were negative, and he did not want to have contact with her. The court concluded that mother had not stated a change of circumstances. The court denied the section 388 petition, stating that the proposed modification would be contrary to the child’s best interest.

Section 366.26 Report, the Siblings’ Section 388 Petitions, and Mother’s Second Section 388 Petition

The social worker filed a section 366.26 report on August 1, 2005, in which he recommended that parental rights be terminated and adoption be implemented as the permanent plan. The social worker reported that the child visited with his brother Nicholas in June of 2005. This visit was successful, and the social worker recommended future visits. The social worker also reportedly “made overtures” to the social workers of Kendra and Nathan to arrange visitation. However, they informed him that those children were about to be returned to mother’s care. The social worker was seeking to arrange visitation that did not involve mother. The child, who was 11 years old at the time, stated to the social worker that the G.’s had been great parents and that he wanted to stay with them until he reached adulthood. The G.’s were likewise eager to adopt the child.

On August 31, 2005, the child had a visit with his siblings that was scheduled for one hour. The siblings were advised that they could not discuss the dependency matter and could not talk about mother. After a few minutes of playing, Nathan told the child that mother loved him very much. Nicholas then said that mother said to tell the child that she loved him. Nathan and Kendra joined Nicholas, and they all told the child, in unison, that mother loved him and that they were all family. At that point, the social worker interrupted and stopped the visit. Nathan and Nicholas asked the child, “Don’t you love mom?” The child answered, “No.” The social worker stated that it appeared that the siblings had been told to give the child mother’s message.

On September 1, 2005, Nicholas filed a section 388, subdivision (b) petition requesting that the court vacate the setting of the section 366.26 hearing in the child’s case. Nicholas alleged that the sibling exception applied. (§ 366.26, subd. (c)(1)(E).) Nicholas further requested that the court formulate a post-adoptive contract that would ensure that he and the child would have visitation. On September 30, 2005, Nathan filed a similar section 388, subdivision (b) petition.

On November 4, 2005, the social worker filed an addendum report to the section 366.26 report. He stated that sibling visits had occurred between Nathan, Nicholas, and Kendra. However, the child had not been visiting the other children due to geographical distance and the “need to stabilize” the younger three children. The social worker further reported that he learned from Mrs. G. that mother attempted to make contact with the child at a court hearing. The child saw mother waving at him as he drove past her. When the social worker asked the child how he felt about the incident, the child said that he “should have flipped her off.” The child expressed that he was angry with mother for not being there for him for all these years, and for trying to make him live with her now. On several occasions, the child told the social worker that he did not want to return to his mother’s care, and that he loved the G.’s as his parents and wanted to stay with them until he was an adult. The social worker concluded that the child should stay with the G.’s because of their strong bond and how much he had grown in their care. In addition, the social worker submitted a bonding study that was done by a clinical psychologist. After observing the child and the G.’s interact, the psychologist asserted that there was a strong emotional attachment between the G.’s and the child. In contrast, the psychologist observed that the child had obviously separated himself emotionally from mother. She noted the child’s “vehement rejection” of mother when he said that she belonged in the jail for people who had hurt him because “she wasn’t a good mother.” The psychologist concluded that it was in the child’s best interest to protect his attachment to the G.’s.

On November 30, 2005, mother filed another section 388 petition. This petition requested the return of the child to mother’s custody. As to changed circumstances, she alleged that both Nathan and Kendra had recently been returned to her custody. The petition further alleged that it was in the child’s best interest to be returned to mother’s custody because it “[was] likely that [the child would] be made to feel excluded if he can not also live with or see his biological mother.”

On November 30, 2005, Kendra also filed a section 388, subdivision (b) petition, similar to those of Nicholas and Nathan. She alleged that the sibling exception (§ 366.26, subd. (c)(1)(E)) applied. Kendra requested that the court not terminate mother’s parental rights, and, in the alternative, that the court formulate a post-adoptive visitation contract. She asserted that the requests were in the child’s best interest because she and the child used to live together, before DCS intervened, and because they had enjoyed regular visitation as much as possible since their removal.

At a November 30, 2005, combined section 388 and section 366.26 hearing, mother testified that she moved out of state from October 2001 to March 2004 to recover from her stroke. She also stated that her last visit with the child was on September 11, 2001. When asked whether she thought it would be beneficial for the child to visit with his siblings, mother simply answered that she believed that the children “would lose out if they weren’t able to see each other.” Social worker Erkel also testified at the hearing. He admitted that he received six to eight letters from mother to the child in the past year, but did not forward them to the child. The letters inappropriately addressed what had happened in the past, and, after consulting with his supervisor and an adoptions specialist, the social worker determined that it was not in the child’s best interest to give them to him. The social worker was concerned that the letters could only produce negative emotions. He testified that the child wanted to see his siblings again, but did not want to see mother. He also testified that the child wants to live with the G.’s on a permanent basis and was excited for them to adopt him. The social worker stated that he was in favor of sibling visitation, as long as it did not involve mother in any way. The social worker ultimately concluded that it would be detrimental to return the child to mother, since he had been with the G.’s for over four years and was doing well with them. He said that the psychologist that interviewed the child, as well as the adoptions specialist, agreed.

The court denied mother’s section 388 petition. The court agreed that there had been a change of circumstance; however, the court found that the only evidence that it was in the child’s best interest to return him to mother’s custody was the child’s relationship with the siblings; however, that evidence was not strong enough. The court noted the opinion of “the professionals” that it was in the child’s best interest to stay with the G.’s. The court also noted that, since the child was 11 years old, it was giving substantial weight to his wish to stay with the G.’s.

As to the siblings’ section 388 petitions, Kendra’s counsel simply asked that the court consider the petition filed. Nicholas’s counsel stated that, even though Nicholas and the child did not have a strong relationship, the child should live with him and mother simply because they were brothers. Nathan himself testified, and stated that he felt that he and the child had a strong relationship just because they were brothers.

Ultimately, the court found that the bond between the children existed only by virtue of the fact that they were siblings and noted that the relationships had dissipated over time. The court determined that adoption was in the child’s best interests, declined to apply the sibling exception, and terminated mother’s parental rights.

ANALYSIS

I. The Court Properly Denied Mother’s Section 388 Petition

Mother argues that the court abused its discretion in denying her second section 388 petition. We disagree.

A. Standard of Review

A petition under section 388, “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.]” (In re Jasmon O. (1994) 8 Cal.4th 398, 415 (Jasmon O.).)

B. Mother Failed to Show That Returning the Child to Her Custody Would Be in His Best Interest

“At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) “The parent’s interest in having an opportunity to reunify with the child is balanced against the child’s need for a stable, permanent home. The parent is given a reasonable period of time to reunify and, if unsuccessful, the child’s interest in permanency and stability takes priority.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.” (Stephanie M., supra, 7 Cal.4th at p. 317.)

Here, mother’s section 388 petition alleged that her circumstances had changed in that Kendra and Nathan were returned to her custody. The petition further alleged that returning the child to her would be in his best interest because he would likely feel excluded if he could not live with mother. The court properly determined that it was in the child’s best interest to stay with the G.’s. There was no evidence that the child would feel excluded if he could not live with mother. To the contrary, the child expressly stated that he wanted to be adopted by the G.’s. Furthermore, the social worker, the adoptions specialist, and the psychologist all agreed that it was not in the child’s best interests to be returned to mother.

Mother argues that the court erred in denying the section 388 petition on the basis of the child’s need for stability. However, “it is within the court’s discretion to decide that a child’s interest in stability has come to outweigh the natural parent’s interest in the care, custody and companionship of the child. [Citation.]” (Jasmon O., supra, 8 Cal.4th at p. 419.)

Mother further discusses at length that the child’s negative feelings toward her were based on his allegedly erroneous view that she abandoned him. We note that the court’s decision to deny mother’s petition was not based on the child’s negative feelings toward mother. Rather, the court found that mother had presented little evidence that the circumstances in her home would make returning the child to her in his best interest.

Ultimately, the court properly placed special weight on the child’s need for stability, as was appropriate at that stage of the proceedings. Moreover, the court determined that mother had not carried her burden of proof, and thus properly denied her section 388 petition.

II. The Court Did Not Err in Declining to Apply the Sibling Exception

Mother argues that the court erred when it failed to apply the sibling exception under section 366.26, subdivision (c)(1)(E). Kendra and Nathan join in this argument. We disagree.

A. The Sibling Exception Did Not Apply

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subd. (c)(1).) In other words, the Legislature has determined that, “where possible, adoption is the first choice.” (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).) This rule, however, is subject to five statutory exceptions, including the sibling exception. (§ 366.26, subds. (c)(1)(A)-(c)(1)(E).) “The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a ‘compelling reason’ for concluding that the termination of parental rights would be ‘detrimental’ to the child due to ‘substantial interference’ with a sibling relationship.” (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]” (Celine R., supra, 31 Cal.4th at p. 61.)

The court properly determined that there was insufficient evidence to establish that the benefits of the child’s sibling relationships outweighed the benefits of him being adopted. The court stated that, at that point in the proceedings, there needed to be a compelling reason not to terminate parental rights and that the only exception at issue was the sibling exception. However, the evidence of the child’s sibling relationships was not strong enough to outweigh the benefits of permanence through adoption. Both Nicholas and Nathan admitted that they only characterized their relationship with the child as strong because they were brothers. On the other hand, the child had been living with the G.’s for over four years, he had grown tremendously with them, he was emotionally attached to them, he considered them his parents, and he wanted to be adopted by them. Furthermore, the unanimous opinion of DCS and the psychologist was that the child had a strong bond with the G.’s, but had emotionally separated himself from mother. They both recommended that the child stay with the G.’s. (See Stephanie M., supra, 7 Cal.4th at p. 318.)

Moreover, there was no evidence that the sibling visits would be discontinued if the child was adopted by the G.’s. The social worker was in favor of sibling visitation, as long as mother was not involved. Similarly, the G.’s were in favor of post-adoption visits. Ultimately, the benefit of the permanency of adoption was not outweighed by the benefit of continuing the sibling relationships because visitation was expected to continue. Accordingly, the court properly found that the sibling exception did not apply to preclude the child from being adopted.

III. The Court Was Not Required to Consider Kendra’s Best Interests

Kendra states that her section 388, subdivision (b) petition asserted her “right to maintain her own family connections.” Then, for the first time on appeal, she argues that the court should have selected guardianship or long-term foster care for the child, instead of adoption, in order to insure that the siblings would maintain their bond. In support of that argument, she asserts that since she was a dependent of the court, that the court was required to make orders in her best interests, and that her best interests included contact with the child. Kendra’s argument is completely untenable.

Section 388, subdivision (b), provides that “[a]ny person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related . . . to a child who is . . . a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child.”

Kendra’s section 388 petition requested the court to apply the sibling exception, and to formulate a post-adoptive visitation contract. In order to be entitled to appear at the section 366.26 hearing for the child and to assert the sibling relationship exception, Kendra properly petitioned the court under section 388, subdivision (b). (In re Hector A. (2005) 125 Cal.App.4th 783, 792 (Hector A.).) A section 388, subdivision (b) petition must be verified and, among other things, must state why the requested order is in the best interest of the child who is the subject of the petition. (§ 388, subd. (b)(4).) The petitioning sibling, Kendra in this case, “need show only that there is a sufficient bond with the adoptive child that the best interests of that child require full consideration of the impact of interfering with that relationship before a decision is reached on the permanency plan.” (Hector A., supra, 125 Cal.App.4th at p. 793.)

The court permitted Kendra to appear at the section 366.26 hearing, which was combined with the section 388 hearing. Contrary to Kendra’s claim, the court was not required to make orders in the child’s case that were in her best interests. In considering the sibling relationship exception, “the concern is the best interests of the child being considered for adoption, not the interests of that child’s siblings.” (Hector A., supra, 125 Cal.App.4th 783 at p. 791, italics added.) At the conclusion of the hearing, the court properly refused to apply the sibling exception. (See § II., supra.) Furthermore, Kendra never argued below that the court should have selected guardianship or long-term guardianship. She has thus waived that argument. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642 (Anthony P.).)

We additionally note Kendra’s assertion that “[l]ike parental rights, the sibling relationship would also be terminated once the court freed [the child] for adoption.” This contention is unsupported, especially in light of the evidence in this case that showed that sibling visitation would continue even if the child were adopted.

IV. The Disentitlement Doctrine Does Not Apply to Reverse the Judgment Terminating Parental Rights

Nicholas argues that the doctrine of disentitlement prevents DCS from advocating a permanent plan of adoption because of DCS’s failure to arrange sibling visitation for approximately four years. He further asserts that disentitlement supports a plan of guardianship. The other siblings join in the argument. We conclude that the disentitlement doctrine does not apply.

At the outset, we note that the siblings never raised the issue of a lack of sibling visitation or the disentitlement doctrine below. Therefore they have waived the issue. (Anthony P., supra, 39 Cal.App.4th at p. 641.)

Notwithstanding the waiver, the disentitlement doctrine does not apply here to bar DCS from advocating a permanent plan of adoption. Under the disentitlement doctrine, “[a] party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.]” (MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277; see In re Kamelia S. (2000) 82 Cal.App.4th 1224, 1227-1229.) In other words, “a court may refuse assistance to a party who fails to comply with a court order.” (In re C.C. (2003) 111 Cal.App.4th 76, 84 (C.C.).)

Here, nothing in the record indicates that DCS had “an attitude of contempt to legal orders” or that it failed to comply with a court order. On October 22, 2001, the court ordered a permanent plan of long-term foster care for all of the children and ordered sibling visitation to be arranged through DCS. Apparently, DCS did arrange visitation but then had to suspend visitation due to ongoing behavior problems after the visits. The record indicates that the court made its next order regarding sibling visitation on April 22, 2003. The court stated that the social worker was authorized to arrange sibling visitation “if appropriate.” The record shows that the social worker took time to assess the appropriateness of visitation. The record also shows that the social worker attempted to arrange visitation but had difficulty doing so because of the many placement changes of the siblings. One attempt to arrange visitation was rejected by the social worker because he determined that the visit would be inappropriate since it involved mother. At a hearing on April 13, 2005, the court asked if sibling visits had occurred and counsel for DCS informed the court that the social worker planned on setting up a sibling visit, and if it was not detrimental to the child, continuing visitation. The court then simply confirmed the previous visitation order, and none of the siblings objected. Thus, although sibling visitation did not occur for a long time for various reasons, the record indicates that the social worker complied with the court’s orders in assessing the appropriateness of sibling visits before arranging visits.

Nicholas boldly asserts that DCS “illegally weakened the sibling relationship, and by doing so, gained its goal, the plan of adoption for [the child].” In support of this contention, he cites section 16002, subdivision (b), which provides that “[t]he responsible local agency shall make a diligent effort . . . to develop and maintain sibling relationships.” It is undisputed that the social worker should have arranged sibling visitation when possible. However, Nicholas appears to be inferring that DCS prevented the child from visiting his siblings in order to further its alleged goal of having the child adopted. While there is no explicit explanation on the record as to why sibling visitation did not occur for so long, there is certainly no indication that DCS purposely failed to arrange sibling visitation. Moreover, DCS would gain no ostensible benefit from the child being adopted. Thus, Nicholas’s contention is tenuous at best.

Nicholas further argues that the disentitlement doctrine supports a plan of guardianship, rather than a plan of adoption. This argument is unsupported by any legal authority. In any event, the disentitlement doctrine did not apply here.

V. The Siblings Have Failed to Establish Ineffective Assistance of Counsel

Kendra, Nicholas, and Nathan contend that they were deprived of effective assistance of counsel because of their counsels’ failure to object to the lack of sibling visitation. In addition, Kendra argues that Attorney Clara Ledford’s joint representation of her and the child until September 30, 2005, created a conflict of interest, and that Ms. Ledford’s failure to withdraw constituted ineffective assistance of counsel. We reject these claims.

“Our past decisions establish, with regard to ineffective-assistance-of-counsel claims, that ‘[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected. [Citations.] As we explained in [People v. Pope (1979) 23 Cal.3d 412, 426], because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct.” (People v. Wilson (1992) 3 Cal.4th 926, 936 (Wilson).)

Here, the record sheds no light on why the siblings’ counsel failed to raise the issue of the lack of sibling visitation, or why Ms. Ledford failed to withdraw from her representation of both Kendra and the child. Thus, these claims should properly be made in a habeas corpus proceeding. (Wilson, supra, 3 Cal.4th at p. 936.)

In any event, the siblings have failed to establish ineffective assistance of counsel. To establish their claims, they must meet the two-prong test, which includes a showing that their counsels’ representation fell below an objective standard of reasonableness and “a showing of prejudice, that is, [a] ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) The siblings have failed to show that they were prejudiced by the lack of sibling visitation. It is pure speculation to assume that those visits would have formed a sibling bond that would have outweighed the benefit the child would receive from a permanent adoptive home. (See Celine R., supra, 31 Cal.4th at p. 61.) Similarly, Kendra cannot show that she was ultimately prejudiced by Ms. Ledford’s representation of her and the child. Thus, the siblings’ ineffective assistance of counsel claims fail.

VI. The Court Was Not Required to Appoint a Guardian Ad Litem for Nathan

Nathan contends that the order at the section 366.26 hearing must be set aside because the court failed to appoint a guardian ad litem for him at the hearing. Nathan’s argument is meritless.

We first note that Nathan was represented by counsel at the section 366.26 hearing. At no time did Nathan’s counsel request that a guardian ad litem be appointed for him. Thus, Nathan has waived this issue on appeal. (In re Kevin S. (1996) 41 Cal.App.4th 882, 885-886 (Kevin S.).)

Notwithstanding the waiver, Nathan’s argument fails. Nathan relies upon Code of Civil Procedure section 372, subdivision (a) to support his claim that the court was required to appoint him a guardian ad litem. However, that statute only provides that “[a] guardian ad litem may be appointed in any case when it is deemed by the court in which the action or proceeding is prosecuted, or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor. . . .” (Italics added.) Furthermore, section 372, subdivision (a) pertains to civil matters. “‘Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. [Citations.]’” (In re Josiah Z. (2005) 36 Cal.4th 664, 678.) The rules governing dependency guardians ad litem are different than those applicable in civil proceedings. (Id. at p. 679.)

In any event, Nathan was represented by counsel at the hearing; thus, he was not prejudiced by the failure of the court to appoint a guardian ad litem. Nathan cannot establish that the appointment of a guardian ad litem at the section 366.26 hearing would likely have resulted in a different outcome. (See In re Lisa M. (1986) 177 Cal.App.3d 915, 920, fn. 4.)

VII. DCS Was Not Required to Provide Nathan with Copies of the Section 366.26 Report Prior to the Hearing

Nathan claims that DCS was required to provide him, not just his counsel, with copies of the section 366.26 reports 10 days prior to the hearing, pursuant to California Rules of Court, rule 1463(c) (rule 1463). Nathan is simply wrong. Rule 1463 only requires DCS to provide copies “to the parent or guardian and all counsel of record. . . .” (Cal. Rules of Court, rule 1463(c).) Nathan’s counsel did receive copies of the reports, albeit on the day of the hearing. Nathan’s counsel did not object to receiving the reports that day, and thus, waived any issue concerning the timing of the receipt of the reports. (Kevin S., supra, 41 Cal.App.4th at pp. 885-886.)

VIII. The Proceedings Were Not Fundamentally Unfair to Nathan

Nathan finally claims that the proceedings were fundamentally unfair because he had the burden of establishing that the sibling exception applied, but the “disparity between respondent and [him] was too great.” He claims that shifting the burden to him violated due process, and requests this court to reverse the order terminating parental rights.

Nathan fails to explain how his due process rights were violated. Moreover, section 388, subdivision (b) permits any person to petition the court to assert a sibling relationship or to “make any other request for an order which may be shown to be in the best interest of the dependent child.” (§ 388, subd. (b).) Since Nathan was the petitioner asserting the sibling exception, it is absurd to suggest that it was unfair to require him to establish the reason why the sibling exception applied.

Furthermore, Nathan does not challenge the court’s ultimate finding that terminating mother’s parental rights and proceeding to adoption was in the child’s best interest. Thus, there is no basis to reverse the order terminating parental rights.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Hollenhorst

J.

We concur:

/s/ Ramirez

P.J.

/s/ McKinster

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.

^[2] Counsel for the child filed a letter brief on July 5, 2006, joining in the respondent’s brief.

^[3] There is little information in the record about Dana after this point. Thus, further references to “the children” will not include Dana.