In re Q.C.

Filed 10/5/06 In re Q.C. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Amber C. (appellant), the mother of a dependant child, Q.C., appeals from an order after a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26[1] that terminated her parental rights, and found Q.C. to be adoptable.

She contends that the order must be reversed, without any showing of prejudice, because her guardian ad litem, who was also an attorney at law, substituted for her appointed counsel at the section 366.26 hearing, and performed the dual role of guardian ad litem and counsel for appellant. We shall hold that the error, if any, would require reversal only upon a showing of prejudice, and shall affirm.

Facts

Q.C. was born in June 2004. At the time of his birth, he and his mother, appellant Amber C., tested positive for amphetamine and methamphetamine. The Contra Costa County Children & Family Services Bureau (hereafter, the bureau) took Q.C. into temporary custody and filed a petition alleging he came within the jurisdiction of the juvenile court under subdivisions (b) and (g) of section 300. The court detained Q.C., and, after a contested jurisdictional hearing, found he was a child described by section 300, subdivision (b). At the dispositional hearing, the court adjudged Q.C. a dependant child, removed him from appellant’s care and ordered the bureau to provide her with reunification services. This court affirmed the jurisdictional and dispositional order in an unpublished opinion. (In re [Q.C.] (June 29, 2005, A108060.)

In the status review report for the February 3, 2005 review hearing, the social worker reported that appellant completed drug testing irregularly in August and September 2004, and then missed all tests until January 2005. The tests she actually took were negative. Q.C. had been placed with his maternal grandmother, who also was the legal guardian of Q.C.’s half-sister, Alicia. The grandmother had been supervising appellant’s visits with Q.C. until an incident on December 7, 2004, which resulted in the grandmother obtaining a restraining order against appellant,[2] and discontinuing her supervision of visits. The bureau offered appellant supervised visits at its office in Antioch, but appellant declined, saying that they interfered with her work schedule. She did not visit Q.C. between December 7, 2004, and February 2005. Appellant denied that she had a serious drug problem, and did not comply with the reunification plan. The grandmother was willing to adopt Q.C., and the agency recommended that the court order termination of reunification services and schedule a hearing pursuant to section 366.26.

At the February 3, 2005 review hearing the court granted appellant’s Faretta motion (People v. Faretta (1975) 422 U.S. 806) and relieved the public defender’s office. It set the review for contest on February 28. The court also appointed Anthony Ashe, Esq., as appellant’s guardian ad litem.[3] Mr. Ashe asked the court to appoint counsel for appellant, and after the public defender’s office conflicted out, the court appointed Mary Ousley of the alternate public defender’s office. The contested review was set again for hearing on May 16, 2005.

In a supplemental review memorandum, the social worker reported that appellant had not drug tested since January 21, 2005. She had visited Q.C. consistently since February 2005, but had refused therapy referrals, and failed to provide evidence that she had attended therapy, or satisfied any other requirements of the reunification plan. She also was not returning the social worker’s calls, or responding to letters. On May 16, 2005, the court granted the maternal grandmother de facto parental status, and granted an oral motion for a continuance by appellant’s counsel.

On June 3, 2005, the continued hearing date, appellant appeared by telephone, and appellant’s counsel again sought a continuance because appellant had been bitten by a spider the night before and was ill. The court ordered appellant to provide verification that she sought treatment for the spider bite, suspended provision of reunification services, and continued the hearing to June 9, 2005.

At the hearing, appellant again sought to relieve her appointed counsel and represent herself. After holding a hearing with appellant, her appointed counsel and guardian ad litem, the court denied the motions. Ms. Ousley sought another continuance based upon a doctor’s letter appellant had given her suggesting a recent medical diagnosis of posttraumatic stress disorder, ADHD (Attention Deficit Hyperactivity Disorder) and Cushing’s disease.[4] Ms. Ousley argued that these medical conditions could have affected appellant’s ability to comply with the reunification plan, and asked the court to continue reunification services, and allow counsel time to interview the doctor. Mr. Ashe, appellant’s guardian ad litem, also urged the court to consider a declaration that appellant had filed regarding her illnesses. When appellant herself also sought to argue the issue, the court cautioned her that she had “not one, but two attorneys”[5] and that before speaking she should consider the risk that she might say something detrimental to her case. The court nonetheless listened to her explanation of all the reasons why a prior medical referral had been inadequate to uncover these particular medical problems. The court found no good cause for another continuance, and denied the request. The court continued Q.C. as a dependent child in out-of-home placement, found that appellant had been offered reasonable reunifications services and failed to use the services offered. It found no substantial probability of return of the minor if services were extended, and terminated them. It scheduled a section 366.26 hearing for September 21, 2005. ~(RT 134-146; 181-182)~ Appellant did not file a timely petition for review by writ of this order.

The bureau sought a 90-day continuance of the section 366.26 hearing to allow it to complete further assessment and a home study for the grandmother. The court continued the hearing to December 14, 2005. The report stated that Q.C. was within the range of normal development, and had no physical problem that would affect adoptability. The grandmother wished to adopt, and Q.C. had lived with his grandmother almost since birth. His half-sister also resided with the grandmother. The December 14, 2005 addendum report stated that appellant had last visited Q.C. on April 29, 2005. Subsequent visits were cancelled after appellant failed to call to confirm three consecutive planned visits. In September 2005, while the grandmother was taking Q.C. for a walk, she encountered a large man who introduced himself as appellant’s boyfriend, and appellant emerged from a nearby car. Appellant became upset when Q.C. did not appear to recognize her, and screamed at the grandmother. The grandmother quickly left the area. The bureau recommended that parental rights be terminated so that Q.C. could be adopted.

Appellant did not appear at the section 366.26 hearing held on December 14, 2005. When the court asked for a statement of appearances for the record, Mr. Ashe stated: “I am the guardian ad litem for mother, but I’m also appearing as her attorney because Mary Ousley is unable to be here.” The court asked for corrections and additions to the section 366.26 report, and heard a report from counsel for the minor. Counsel for the minor reported that the incident in September involving appellant’s encounter on the street with the grandmother and Q.C. had resulted in a new dependency action regarding Alicia. She also referred to some information that appellant was pregnant again and avoiding the courts and Social Services, hoping to prevent the “in utero child” from becoming a dependant. The court then called upon Mr. Ashe. Mr. Ashe asked whether the court had found notice had been provided for the section 366.26 hearing. When the court responded that it had, Mr. Ashe stated: “In that case we object to the recommendation but have no evidence to present.” After hearing from counsel for the father, the court reconfirmed that the record contained proof of personal service on appellant of notice of the September 21, 2005 hearing date, and of the continued date.[6] The matter was submitted. The court followed the agency recommendations and terminated parental rights. Ms. Ousley filed a timely notice of appeal.

Analysis

I.

Department’s Request for Dismissal Based upon Mother’s Failure to Authorize Appeal

The bureau requests that we dismiss the appeal, without considering the merits, on the ground that, despite having notice, appellant failed to appear at the section 366.26 hearing, thereby functionally abandoning any parental interest in the minor, and only her attorney signed the notice of appeal. (See, e.g., In re Sean S. (1996) 46 Cal.App.4th 350, 352-353.) We decline to do so. First, we must presume, in the absence of a contrary showing, that appellant’s counsel had the authority to file the appeal on her behalf. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 910.) Second, in opposition to the bureau’s request to dismiss, appellant’s counsel has submitted a declaration stating that she has spoken to counsel and wishes to pursue the appeal. This is sufficient to establish that mother has not abandoned the appeal and has authorized it. (See In re Asia L. (2003) 107 Cal.App.4th 498, 505-506.)

II.

Substitution of Guardian Ad Litem in Dual Role as Counsel at 366.26 Hearing

At the 366.26 hearing, Mr. Ashe, a licensed attorney, stated his appearance as appellant’s guardian ad litem, and added that he was “also appearing as her attorney because Mary Ousley [appellant’s appointed counsel] is unable to be here.” Appellant contends that proceeding in the absence of her appointed counsel, and permitting Mr. Ashe to appear in the dual roles of guardian ad litem and counsel for appellant, resulted in a denial of her due process right to counsel. She argues that potential conflicts preclude a guardian ad litem from also serving as counsel for a parent in a dependency proceeding. She does not identify what the potential conflicts are, or state whether an actual conflict occurred, and she makes no attempt to demonstrate that the appearance of Mr. Ashe in lieu of Ms. Ousley resulted in prejudice. Instead, she argues that she was denied her due process right to counsel, and that the error is a “structural” error, and is reversible per se. (See Arizona v. Fulminante (1991) 499 U.S. 279, 309-311 (Fulminante).)

It is appellant’s burden to demonstrate prejudice, and since appellant fails to do so, her argument stands or falls with her contention that her constitutional due process rights were violated, and that the error is reversible per se. “Confronted with constitutional error in dependency matters, other appellate courts have looked to the standards applied in criminal appeals, as explained in [Fulminante, supra,] 499 U.S. 279 . . . . . . . In Fulminante, the Supreme Court cited a wide range of errors susceptible to harmless error analysis. According to the Supreme Court, ‘[t]he common thread connecting [those] cases is that each involved ‘trial error’--error which occurred during the presentation of the case . . . .’ [Citation.] An error in the trial process itself does not require automatic reversal because a court may quantitatively assess such an error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation.] . . . By comparison, ‘structural’ error or a ‘structural defect[] in the constitution of the trial mechanism . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself’ defies analysis by a harmless error standard. [Citation.] A structural error requires reversal without regard to the strength of the evidence or other circumstances. [Citation.] The United States Supreme Court has found structural errors, however, only in a very limited class of cases: the total deprivation of the right to counsel at trial [citation], a biased judge [citation], unlawful exclusion of members of the defendant’s race from a grand jury [citation], denial of the right to self-representation at trial [citation], denial of the right to a public trial [citation], and erroneous reasonable-doubt instruction to jury [citation].” (In re Angela C. (2002) 99 Cal.App.4th 389, 394-395.)

Appellant characterizes the appearance of Mr. Ashe in lieu of Ms. Ousley at the section 366.26 hearing as a total deprivation of her due process right to counsel. The right of a parent to appointed counsel in a dependency proceeding is not always constitutionally compelled as a component of due process. (See In re Ronald R. (1995) 37 Cal.App.4th 1186, 1196, citing Lassiter v. Department of Social Services (1981) 452 U.S. 18, 33 [each case in which a parent raises the due process right to representation must be evaluated on its own facts, to ascertain whether the presence of counsel would have made a determinative difference in the outcome such that absence of counsel renders the proceedings fundamentally unfair].) Although some courts have recognized a due process right of a parent to counsel at a section 366.26 hearing (see, e.g., In re O.S. (2002) 102 Cal.App.4th 1402, 1407), others have not (see, e.g., In re Malcolm D., supra, 42 Cal.App.4th 904, 921; In re Andrew S. (1994) 27 Cal.App.4th 541, 548-549.) The parent does, however, have a statutory right to appointed counsel in dependency proceedings. (See Welf. & Inst. Code, § 317, subd. (b); Cal. Rules of Court, rule 1412(h)(l)(B).) We need not resolve the question whether appellant’s right to counsel at the section 366.26 hearing was constitutionally compelled, or merely statutory, because the record shows that appellant was not, in any event, denied representation by counsel. Mr. Ashe, after stating his appearance as guardian ad litem, stated that he was also appearing as her attorney, due to the unavailability of Ms. Ousley. The court may allow substitution of counsel based upon unavailability of appointed counsel. (See § 317, subd. (d).) Mr. Ashe, as appellant’s guardian ad litem, had the power to control the litigation and make certain procedural decisions.[7] Consent to a substitution of counsel would be a procedural decision that a guardian ad litem would have the right to make. (See In re Sara D., supra, 87 Cal.App.4th 661, 667-668; In re Christina B. (1993) 19 Cal.App.4th 1441, 1453.)[8] Appellant therefore was represented by counsel at the section 366.26 hearing. The error, if any, in allowing Mr. Ashe to substitute for Ms. Ousley resulted only in the denial of representation by a particular person, i.e., Ms. Ousley, not, as appellant contends, the total deprivation of a due process right to counsel. Only the latter would constitute structural error that is reversible per se.

Appellant argues, in the alternative, that reversal is required without regard to any showing of prejudice, because unspecified conflicts precluded her guardian ad litem from serving in the dual capacity as her counsel at the section 366.26 hearing. In support of this contention she relies upon In re Charles T. (2002) 102 Cal.App.4th 869, 874 (Charles T.). Nothing in the holding of Charles T. compels such a result. In Charles T., a mother, whose parental rights were terminated following the denial of reunification services, contended that the order must be reversed because no separate guardian ad litem was appointed for the minor. The appellate court held that for purposes of the federal Child Abuse Prevention and Treatment Act (CAPTA) (42 U.S.C. § 5101 et seq.) and the implementing state law (§ 326.5), it is sufficient in California to appoint counsel for a child, who may also fulfill the role of a guardian ad litem. (Charles T., at p. 879.) The court further held that, in the dependency context, no inherent conflicts of interest prevented counsel from performing the dual role of legal advocate for the minor and guardian ad litem. (Id., at pp. 875-879.) It reasoned that the guardian ad litem’s 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. It 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 the dual roles. (Id. at pp. 875-877.) The court did not even address the question whether an attorney could perform such a dual role when representing a parent at a section 366.26 hearing. Moreover, since the court in Charles T. found no conflict, it never reached the question whether, and in accordance with what standard, an error consisting of allowing performance of these dual roles might require reversal.

In dicta, the court in Charles T., supra, 102 Cal.App.4th 869, did observe “the nature of the duties and responsibilities in an adversarial proceeding of a guardian ad litem and legal counsel would dictate that legal counsel generally cannot also act as the guardian ad litem due to conflicts of interest.” (Id. at p. 878.) Appellant points out that, as to the parent, a section 366.26 hearing must be deemed adversarial because it may result in a termination of parental rights. She then relies upon the foregoing dicta as authority for the proposition that performance by an attorney of the dual role of guardian ad litem and counsel for a parent at a section 336.26 hearing does involve a conflict, and concludes that the error requires reversal without any showing of prejudice. The court’s dicta in Charles T. merely generally suggests that when a dependency proceeding is adversarial there is a potential conflict between the role of counsel and guardian ad litem. The court did not articulate the nature of the potential conflict, and appellant provides us with no explanation of how the dual roles potentially or actually conflicted in this case.

In any event, even if we accept, arguendo, that a potential for conflict exists, we find no merit in appellant’s assertion that allowing an attorney to perform both roles is a structural error that necessitates reversal, in the absence of any showing of prejudice. Representation by conflicted counsel is not the same as the total denial of a constitutional right to counsel that is subject to the per se standard for reversal. Instead, it is akin to a claim of ineffective assistance of counsel and requires a showing of prejudice. (See, e.g., People v. Castillo (1991) 233 Cal.App.3d 36, 62 [rejecting contention that representation by conflicted counsel is structural error requiring per se reversal]; People v. Clark (1993) 5 Cal.4th 950, 994-995 [no reversal required when a criminal defendant is represented by counsel with a conflict unless some prejudice is shown]; see also In re Dennis H. (2001) 88 Cal.App.4th 94, 98 [ineffective assistance of counsel in dependency proceedings requires reversal only when prejudice is shown].)

Appellant’s reliance upon Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), in support of her contention that we should deem the claimed error to be reversible per se, is misplaced. In Judith P. the court held failure to provide a status review report to a parent at least 10 days prior to a status review hearing was a structural error, and reversible per se. In reaching this conclusion the court relied heavily on the strong interests of the parent at the prepermanency planning stage. Paramount among these was the parent’s interest in maintaining reunification services, and the late receipt of a status report seriously impaired the parent’s ability to prepare for a contested hearing. (Id. at pp. 541, fn. 3, 554, fn. 13.) This is an appeal of an order finding a child to be adoptable and terminating parental rights. Reunification services were terminated prior to the section 366.26 hearing, and the emphasis thereafter shifted from family reunification to meeting the child’s need for permanency and stability. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) “ ‘[T]he decision to terminate parental rights will be relatively automatic if the minor is going to be adopted.’ “ (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250.) Thus, by the time of the permanency hearing, the parent’s opportunity to change the outcome is far more limited, and the critical stage of the proceedings, from the parent’s perspective, has already passed. Accordingly, the rationale behind Judith P.’s finding of structural error would rarely apply at this stage of a dependency proceeding. Indeed, in In re Celine R. (2003) 31 Cal.4th 45, our Supreme Court stated that when reunification efforts have failed and adoption has been selected as the permanent placement plan, it is important to implement that plan “reasonably promptly to minimize the time during which the child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. [Citation.]” (Id. at p. 59.) With that in mind, the court cautioned that adoption rulings should not be lightly overturned without careful harmless error analysis. It held that the claim of error in that case, i.e., failure to appoint separate counsel for multiple siblings when a conflict arose, could not result in reversal absent a showing of prejudice. (Ibid.) The claimed error in this case also consists of representation by conflicted counsel, although the conflict involves counsel for the parent, not the child.

The only other authority appellant cites in support of her contention that the claimed error was structural is In re C.G. (2005) 129 Cal.App.4th 27, 34. In that case the court applied the reversible per se standard to the erroneous appointment of a guardian ad litem for a parent in a dependency proceeding in violation of the parent’s right to due process, and reversed an order establishing a guardianship for the child. Two other courts have expressly disagreed that such an error is “structural,” and instead held that reversal is not required if the error is harmless beyond a reasonable doubt. (See In re A.U. (2006) 141 Cal.App.4th 326, 338-340; In re Enrique G. (2006) 140 Cal.App.4th 676, 686.) In any event, appellant does not challenge the appointment of a guardian ad litem on her behalf. Therefore, whatever the merits may be of the application of the reversible per se standard in In re C.G., supra, it is inapplicable to the error claimed in this case.

The assumption by Mr. Ashe of the dual roles of guardian ad litem and counsel for appellant at the section 366.26 hearing by substituting for Ms. Ousley was not structural error. Instead, appellant’s claim of error is most closely analogous to a claim of ineffective assistance of counsel based upon a representation by counsel with a conflict. Even if we assume arguendo that appellant has demonstrated the existence of a conflict, the error, as with a claim of ineffective assistance of counsel, does not require reversal in the absence of a showing of prejudice. (See In re Celine R., supra, 31 Cal.4th 45; In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) Regardless of whether we apply the standard of Chapman v. California (1967) 386 U.S. 18, 24, or that of People v. Watson (1956) 46 Cal.2d 818, 836, or even the slightly different standard of prejudice applicable to claims of ineffective assistance due to representation by conflicted counsel applicable in criminal cases (see, e.g., People v. Clark, supra, 5 Cal.4th at pp. 994-995), we find any error in allowing Mr. Ashe to substitute for Ms. Ousley and perform these dual roles was harmless, for two reasons:

First, appellant effectively concedes the absence of prejudice by relying entirely upon her contention that the assumption by Mr. Ashe of these dual roles was structural error requiring reversal per se.[9] Appellant does not identify anything that Mr. Ashe should have done that he did not do in his capacity as her attorney or as guardian ad litem. She does not identify anything that Ms. Ousley would have done, had she been present, that might have made a difference. Nor does she explain how the alleged conflict between Mr. Ashe’s role as guardian ad litem and as her counsel potentially, or actually, affected his performance, or resulted in less zealous protection of her interests.

Second, we have reviewed the record and find nothing to suggest to us an argument or action that might have been advanced upon appellant’s behalf had Ms. Ousley also been present at the section 366.26 hearing, or that may not have been made due to the alleged conflict arising from the performance by Mr. Ashe of the roles as guardian at litem and counsel for appellant. By the time the court held the section 366.26 hearing, most of the important decisions affecting appellant’s possibility of reunifying with the child had already been made. This court affirmed the jurisdictional and dispositional order, and appellant failed timely to seek review by writ of the decision to terminate reunification services. The primary issue at the section 366.26 hearing was the adoptability of the child, and the evidence that he was adoptable was overwhelming. Appellant had not visited with the child for approximately seven and half months. Therefore, there was no possibility that the court would find the exception described in subdivision (c)(1)(A) of section 366.26 barred termination of parental rights. Nor was there any factual basis for finding the existence of the sibling exception set forth in subdivision (c)(1)(E) of section 366.26 because Q.C. was living in the home of his grandmother, who was willing to adopt him, and the grandmother was also the legal guardian of his half-sister Alicia. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1419-1420.) Appellant failed to appear or notify the court of any reason for her absence, and had not visited the child for months. Under these circumstances the juvenile court could draw an inference that appellant had abandoned any parental interest in Q.C. (See In re Sean S., supra, 46 Cal.App.4th 350, 352-353.[10]) Appellant’s appointed counsel did not abandon her by failing to appear at the hearing because it is inferable from Mr. Ashe’s statements on the record that Ms. Ousley was unavailable, and had arranged for Mr. Ashe to substitute for her. The court had already continued the section 366.26 hearing once, and it was not likely to grant another continuance when appellant failed to appear without any explanation. In light of appellant’s nonappearance, and the absence of grounds to contest the proposed adoption or bar termination of parental rights, there was simply very little that counsel could have done to change the outcome. Mr. Ashe made a reasonable decision, in the circumstances, to explore the possibility of lack of notice to appellant, and after the court confirmed notice had been given, to state appellant’s opposition to the recommendations, and submit the matter.

We conclude that, even if it was error to allow Mr. Ashe to substitute for Ms. Ousley and perform the dual roles of guardian ad litem and counsel for appellant, the representation appellant received was adequate, and did not result in any prejudice. It is time now to end the period of “legal limbo” for Q.C. and secure his stable permanent placement with a caretaker who has made a full emotional commitment to him, by affirming the judgment.

Conclusion

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

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MARGULIES, J.

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

[2] On that day, the grandmother briefly left Q.C. and his eight-year-old half-sister, Alicia, in appellant’s care. The grandmother had been appointed Alicia’s legal guardian in a prior dependency. Appellant telephoned relatives attempting to locate Alicia’s father, a drug dealer who had recently been released from jail, so that she could take Alicia and hide her with her father. When relatives alerted the grandmother, the grandmother immediately returned home, but appellant refused to let her in. The grandmother had to call the police to force appellant to let her in and release the children.

[3] We do not have a complete record concerning the appointment of the guardian ad litem or the reasons for it. Appellant, however, does not raise any claim of error on appeal with respect to the appointment of a guardian ad litem for her.

[4] The court received this letter and a note from another doctor that he had seen appellant for a spider bite on June 3 or 8. On the second day of the hearing, at the close of evidence, Ms. Ousley informed the court that she would not move the doctors’ letters “into evidence as we have reason to question their authenticity.”

[5] The court was referring to Ms. Ousley and Mr. Ashe.

[6] Appellant does not contest these findings.

[7] “[A] guardian ad litem has broad powers that include, with court approval, the ability to compromise a claim, to agree to an order or judgment, to satisfy a judgment, or to release or discharge a claim. The guardian ad litem also has the power to control the lawsuit, including controlling procedural steps necessary to the conduct of the litigation, making stipulations or concessions with court approval, waiving the right to a jury trial, and controlling trial tactics.” (In re Sara D. (2001) 87 Cal.App.4th 661, 668.)

[8] In some circumstances, not present here, the parent must be notified and a hearing held before counsel may withdraw. (See, e.g., In re Tanya H. (1993) 17 Cal.App.4th 825, 831; Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1066-1067; In re Julian L. (1998) 67 Cal.App.4th 204, 208.) However, in Tanya H. and Janet O., counsel was relieved and no substitution of counsel occurred, leaving the parent unrepresented. In Julian L., there was a three-month delay in appointing substitute counsel. Here, Ms. Ousley did not withdraw. Instead, she merely sought a temporary substitute because she was unavailable and another continuance was not likely to be granted. Mr. Ashe was immediately substituted for Ms. Ousley, so that appellant was never without representation. Ms. Ousley resumed her role as counsel by filing the notice of appeal on appellant’s behalf.

Nor do we agree with the bureau’s improvident suggestion that what Mr. Ashe did was waive the presence of counsel, or agree to proceed without any representation by counsel. Instead, he simply agreed to substitute for appointed counsel. In so doing, he did not waive any of fundamental procedural rights such as a right to a hearing, or representation by counsel. (Cf. In re Christina B. (1993) 19 Cal.App.4th 1441, 1453 [waiver of mother’s trial rights over her stated objections exceeded the power of the guardian ad litem].)

[9] We do not fault appellate counsel for making the decision to rely entirely upon the contention that the error is reversible per se. In light of the record, and the clear absence of prejudice, this was a reasonable and competent choice.

[10] The court, in In re Sean S., supra, 46 Cal.App.4th 350, explained the reasonableness of such an inference as follows: “Those parents who wish to enjoy the vicissitudes of parenthood must make some sacrifices on behalf of their children. Appearing at a selection and implementation hearing that will decide the long-term placement of their children is one of those sacrifices which (absent some good excuse, of course) caring parents will make. If, however, they will not show up for even that hearing, they are sending an unmistakable message that they have no sincere interest in raising their children.” (Id. at p. 353.) Despite appellant’s renewed interest in pursuing this appeal, at the time of the section 366.26 hearing she was not even present to assist counsel in contesting the recommendation that Q.C. be adopted.