Filed 4/18/16 In re Z.G. CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


In re Z.G., et al., Persons Coming Under                                   2d Juv. No. B266407
the Juvenile Court Law.                                           (Super. Ct. Nos. J1436138 & J1436139)
                                                                          (Santa Barbara County)

SANTA BARBARA COUNTY CHILD
WELFARE SERVICES,

     Plaintiff and Respondent,

v.

C.G.,

     Defendant and Appellant.



                   C.G. (mother) appeals the juvenile court’s orders terminating parental
rights to her minor children, Z.G. and M.G., and selecting adoption as the permanent
plan. (Welf. & Inst. Code, § 366.26.)1 Mother contends she is entitled to a new section
366.26 selection and implementation hearing because she was denied effective assistance
of counsel. We disagree and affirm.
                                FACTS AND PROCEDURAL HISTORY
                    On June 30, 2014, Santa Barbara County Child Welfare Services (CWS)
filed a dependency petition alleging that Z.G., age two, and M.G., age one, came within


         1All   statutory references are to the Welfare and Institutions Code.
the jurisdiction of the juvenile court under section 300, subdivisions (b) and (g). The
petition was based on mother’s extensive history of domestic violence, child welfare
interactions, substance abuse and criminal activity.
              The children were detained following a domestic violence incident with
M.G.’s father, which resulted in injuries to both parents.2 According to mother, the
couple drank alcohol and played “beer pong.” Mother claimed M.G.’s father snorted her
prescription pills and choked her until she lost consciousness. He stated that mother
choked him and scratched his face. Mother was charged with domestic battery and
violation of a restraining order. Mother signed a safety plan with CWS, releasing the
children to the care of their maternal aunt.
              Prior to that incident, CWS received five referrals, three of which included
allegations of substance abuse, including marijuana use. Two reports alleged domestic
violence between mother and M.G.’s father. Mother was arrested for one such incident
on March 18, 2014, and on April 15, 2014, was convicted of battery on a spouse or ex-
spouse.
              According to the jurisdiction report, police responded to approximately 23
calls for assistance at mother’s residence between January 1, and May 11, 2014. One
incident involved a stabbing and another involved physical abuse of mother by her
current boyfriend. Mother’s probation officer reported that mother was required to attend
a 52-week batterer’s intervention program, to undergo random drug testing and to attend
a parenting class.
              At the time of their removal from mother’s care, both children
demonstrated developmental delays and symptoms of trauma, including anxiety,
depression and indiscriminate attachment. M.G. and Z.G. rarely spoke, and they
screamed or cried to have their needs met. They ate food with their hands, instead of
using utensils. Z.G. engaged in self-harming behavior, such as hitting his head on the
floor, and M.G. frequently walked into objects without expressing pain. Both children


       2 M.G.’s   father is not a party to this appeal.
                                                2
were diagnosed with mental health problems and referred for therapy. CWS
recommended that the children remain in out-of-home care and that mother receive
family reunification services.
              The juvenile court appointed Jessica Martinez to represent mother.
Martinez arranged for another attorney to specially appear for her at the
jurisdiction/disposition hearing. Pursuant to a settlement, the parties submitted on the
documents. The juvenile court sustained the allegations in the section 300 petition,
ordered family reunification services, including a second drug/alcohol assessment for
mother, and set the matter for a six-month review hearing. Mother’s case plan required
that she participate in parenting classes, counseling and a substance abuse program.
              Mother did not complete the second drug/alcohol assessment. She missed
testing and failed to attend four scheduled substance abuse assessment appointments.
Although mother initially engaged in some services, she stopped participating in her case
plan in December 2014. Specifically, she ceased drug testing after three consecutive
positive marijuana tests in October and November 2014. She stopped attending
substance abuse treatment groups after just four sessions. Mother also missed parenting
classes and therapy sessions, and completed only 13 of the 52 sessions of her batterer’s
intervention program.
              Mother reported that she was pregnant in December 2014. She was
referred to a second treatment program. When mother failed to attend that program, she
was referred to a third program. Mother began that program on February 24, 2015, but
continued to test positive for marijuana use. Mother admitted she was smoking
marijuana three times a day.
              Mother had two scheduled weekly visits with Z.G. and M.G. She attended
most of the visits in September and October 2014, but only one visit in November and
one in December. She missed visits in January and February 2015, prompting the case
worker to report concerns about mother’s lack of maturity and parenting skills.
              Mother claimed she stopped participating in services because she was
homeless and also because she had medical and psychological problems. In addition, she

                                             3
reported that she was expected to be placed on bed rest when she was six months
pregnant. She did not, however, indicate that she was currently on bed rest or that it had
prevented her from attending treatment, counseling and visits with her children.
              Before the contested six-month review hearing on March 25, 2015, CWS
recommended that mother’s family reunification services be terminated. At the hearing,
Martinez rested on the evidence “with the understanding that [mother] will receive . . .
two visits a month for two hours each, contingent upon clean testing.” Martinez
conceded that “right now [mother will] be testing positive for marijuana, but the levels
will need to go down.” The juvenile court found that CWS had complied with the case
plan, that mother’s progress had “been minimal, not adequate,” that the children’s
placement was necessary and appropriate and that there was no “substantial probability of
return by the 12-month review date.”
              The juvenile court set the matter for a section 366.26 selection and
implementation hearing and advised mother of her right to file a writ petition. (See Cal.
Rules of Court, rules 8.450, 8.452.) On March 26, 2015, mother filed a notice of intent to
file a writ petition. Mother’s counsel did not file the petition within 10 days as required
and also did not file a letter under Glen C. v. Superior Court (2000) 78 Cal.App.4th 570,
indicating she had determined there were no issues to be raised. We subsequently
dismissed the proceeding as abandoned. (See In re Z.G. (May 27, 2015, B262981)
[nonpub. order].)
              Mother requested a contested section 366.26 hearing and stated she “may
also want a Marsden hearing.”3 The juvenile court ordered Martinez to prepare and file
an offer of proof for the next hearing. Martinez did not submit an offer of proof, stating
she “could not meet that burden.” At mother’s request, a Marsden hearing was held
before Judge Roger T. Picquet. After hearing mother’s complaints and Martinez’s
response, Judge Picquet denied mother’s request for a new attorney. Although Judge
Picquet “suggest[ed] that the [section 366.26] hearing go forward with [mother] as a


       3 People   v. Marsden (1970) 2 Cal.3d 118 (Marsden).
                                              4
witness to give evidence that she believes is sufficient to [rebut] the allegations,” he
ordered Martinez to “provide a summary of what you anticipate your client’s testimony
would be as the requisite offer of proof.” Martinez provided such an offer to support
mother’s position that termination of parental rights would be detrimental to the children
and that because of their strong bond, the children will benefit from continuing a
relationship with mother.
              The section 366.26 report, filed on July 13, 2015, indicated that the
children’s placement was changed from relative placement to foster care on May 4, 2015.
The relative requested removal of the children due to a significant change in family
circumstances.
              CWS reported that the children were happy and comfortable in their foster
home. They referred to their foster parents as “Mom” and “Daddy,” sought them out for
care and expressed love and affection for them. They were less emotionally volatile and
were able to be soothed by their foster parents, who wished to adopt them. The children
also made improvements in their speech, and reduced their behavioral manifestations of
trauma. They were able to speak coherently and to ask to have their needs met.
              On August 20, 2015, mother appeared with Martinez at the section 366.26
hearing before Judge Arthur A. Garcia. Judge Garcia found that mother’s offer of proof
was insufficient and denied her request for a contested hearing. Martinez submitted with
no argument. Judge Garcia found clear and convincing evidence that the children were
adoptable and terminated parental rights. He authorized mother one supervised closure
visit “upon providing clean tests within 24 hours of the scheduled visit.” Mother appeals.
                                       DISCUSSION
              Mother contends the juvenile court’s denial of her request to discharge her
appointed trial counsel deprived her of her statutory right to effective assistance of
counsel. She asserts that because of that error, the matter should be reversed and
remanded for appointment of new counsel and the scheduling of a new selection and
implementation hearing pursuant to section 366.26.


                                              5
              CWS responds that mother’s claims of error prior to the section 366.26
hearing are barred by the waiver rule, and that even if we consider her claims, she has
failed to show that her trial attorney did not act as a reasonably competent attorney in the
field of dependency law. CWS further contends that regardless of any alleged
incompetence, mother has not shown prejudice. We agree that mother has failed to
demonstrate error.
                              A. Applicability of Waiver Rule
              Most of mother’s claims of ineffective assistance of counsel relate to
actions taken by her trial attorney prior to the section 366.26 hearing. Among other
things, mother contends counsel was deficient by failing to present evidence at the six-
month review hearing, by allowing mother to agree to a second drug and alcohol
assessment and by not filing a writ petition challenging the dispositional and
jurisdictional orders.
              It is well established that the decision not to file a writ petition challenging
dispositional orders and the underlying jurisdiction ordinarily waives any challenge to
them asserted in a subsequent appeal. (In re T.W. (2011) 197 Cal.App.4th 723, 729; In re
Rashad B. (1999) 76 Cal.App.4th 442, 447-448.) This so-called “waiver rule” is justified
on numerous grounds, including: (1) “[T]he predominant interests of the child and the
state in finality and reasonable expedition”; (2) the legislative intent to “expedite
dependency cases and subordinate, to the extent consistent with fundamental fairness, the
parent’s right of appeal to the interests of the child and the state”; and (3) the
“Legislature’s intent, evident in section 366.26, subdivision (l), to restrict appeals
challenging orders setting a [section 366.26] hearing.” (In re Meranda P. (1997) 56
Cal.App.4th 1143, 1156-1157, fn. omitted.)
              Mother contends the waiver rule should not apply here because Martinez’s
alleged ineffective assistance of counsel prevented mother from meaningfully
participating in the case. (See In re S.D. (2002) 99 Cal.App.4th 1068, 1079.) She further
contends it was Martinez’s fault that no writ petition was filed. We need not, however,
reach the issue of waiver because mother’s appeal does not challenge the jurisdictional

                                               6
and dispositional orders. She asks only that a new attorney be appointed and that a new
selection and implementation hearing be held pursuant to section 366.26. It is irrelevant,
therefore, whether counsel’s performance was deficient in connection with the prior
orders as she does not seek to overturn them on appeal. The only issue before us is
whether trial counsel’s alleged deficiencies entitle mother to a new section 366.26
hearing with the assistance of new counsel. We conclude that they do not.
                               B. Denial of Marsden Motion
              An indigent parent has a statutory and a due process right to competent
counsel in dependency proceedings. (§§ 317, subd. (b), 317.5, subd. (a); In re Meranda
P., supra, 56 Cal.App.4th at pp. 1152-1153.) An exhaustive Marsden hearing is not
required; it is only necessary that the juvenile court “make some inquiry into the nature of
the complaints against the attorney.” (In re James S. (1991) 227 Cal.App.3d 930, 935, fn.
13.) Substitute counsel should be appointed when, and only when, in the exercise of the
court’s discretion, the court finds that the defendant has shown either that counsel is not
providing adequate representation or that there is such an irreconcilable conflict between
the parent and counsel that ineffective representation is likely to result. (See People v.
Smith (1993) 6 Cal.4th 684, 696.)
              During the Marsden hearing, mother claimed she had difficulty contacting
Martinez. She complained that every time she told Martinez that she wanted a contested
section 366.26 hearing, Martinez responded that her “parental rights will be taken away
due to [Martinez] not having proof.” Mother stated that she had evidence that would
defeat CWS’s claims against her. Martinez informed Judge Picquet that she had met with
her client several times and had numerous e-mails with her discussing the case. She
agreed that mother engaged in services in the beginning, but noted “there is quite some
time when she failed to do what we asked of her. And towards the end, we are here at the
end now, and, yes, she’s visiting, she’s having her visitations. And she’s now saying
she’s going to do some parenting classes, but this is a new turn of events. This isn’t what
the past has been looking like. And we’ve already lost services due to no visitations and
due to minimal participation.”

                                              7
              Martinez conceded that mother did give her some proof of reasons for the
lack of visits, but stated that “when you put up the amount of visits that she was supposed
to make and the paperwork of doctors’ appointments[,] I had dozens of unexcused visits.
We’re speaking about months. The [c]ourt can read the report, that I could not come up
with evidence to give an excuse as to why my client missed all of those visits.”
              In denying the Marsden motion, Judge Picquet found mother had failed to
demonstrate “that the relationship has deteriorated to any degree that would warrant a
new attorney” or that Martinez had provided inadequate representation. Mother has not
shown that this was an abuse of discretion. The record amply supports Martinez’s
representations to the court regarding mother’s lack of participation in visitation and
other reunification services. To the extent there is a “credibility question between
defendant and counsel” at a Marsden hearing, the court is ‘“entitled to accept counsel’s
explanation.”’ (People v. Smith, supra, 6 Cal.4th at p. 696.)
                           C. Ineffective Assistance of Counsel
              “Under the standard test for a claim of ineffective assistance of counsel, [a
parent] is required to demonstrate both that counsel’s representation fell below an
objective standard of reasonableness and resulting prejudice. [Citation.] A violation of
the right to effective counsel is reviewed under the test of harmless error. [Citation.]
‘Thus the parent must demonstrate that it is “reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.”’
[Citation.]” (In re N.M. (2008) 161 Cal.App.4th 253, 270.)
              Mother argues that trial counsel was deficient by failing to inform Judge
Garcia that Judge Picquet had granted mother the opportunity to testify at the section
366.26 hearing. The record does not support this argument. Judge Picquet “suggest[ed]”
that mother be permitted to testify, but then ordered Martinez to prepare an offer of proof
of her testimony to submit prior to the section 366.26 hearing. Judge Garcia, after
reviewing the offer of proof, denied the request for a contested hearing. There is nothing
to indicate that trial counsel acted incompetently by failing to mention Judge Picquet’s
statement about allowing her client to testify. The purpose of the offer of proof was to

                                              8
determine whether a contested hearing was warranted, and that decision was left to the
discretion of the juvenile court judge assigned to handle the hearing. (See In re Tamika
T. (2002) 97 Cal.App.4th 1114, 1116 [contested hearing not necessary where parent has
failed to make a sufficient offer of proof].)
              Even if mother had proven the alleged inadequacy of her trial counsel, she
has not demonstrated prejudice. It is apparent from the record that any challenge to the
children’s adoptability or to the inapplicability of the parent-child beneficial relationship
exception would have failed.
                                (1) Children’s Adoptability
              “The juvenile court may terminate parental rights only if it determines by
clear and convincing evidence that it is likely the child will be adopted within a
reasonable time. [Citations.] In making this determination, the juvenile court must focus
on the child, and whether the child’s age, physical condition, and emotional state may
make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court’s
order, we determine whether the record contains substantial evidence from which a
reasonable trier of fact could find clear and convincing evidence that [the child] was
likely to be adopted within a reasonable time. [Citations.]” (In re Erik P. (2002) 104
Cal.App.4th 395, 400; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.)
              Mother argues the evidence of adoptability was insufficient because the
children were placed with their current foster family only three months before the section
366.26 hearing, were previously diagnosed with mental health problems and were
removed from therapy when they moved to their current placement. We are not
persuaded. Children do not need to be placed with prospective adoptive parents for a
certain period of time before the court may terminate parental rights. (In re Sarah M.
(1994) 22 Cal.App.4th 1642, 1649-1650.) Moreover, the fact that the children’s foster
parents wish to adopt them is substantial evidence that their “age, physical condition,
mental state, and other matters relating to [each] child are not likely to dissuade
individuals from adopting [them]. In other words, a prospective adoptive parent’s
willingness to adopt generally indicates the minor is likely to be adopted within a

                                                9
reasonable time either by the prospective adoptive parent or by some other family.”
(Ibid.)
              Mother also contends that she was prejudiced because her trial attorney
failed to cross-examine the social worker on the issue of adoptability. As CWS points
out, trial counsel is not required to fight futile battles. Mother fails to demonstrate that
even if a contested hearing had been held, the result would have been more favorable.
                    (2) Parent-Child Beneficial Relationship Exception
              “If the court finds that a child may not be returned to his or her parent and
is likely to be adopted, it must select adoption as the permanent plan unless it finds that
termination of parental rights would be detrimental to the child under one of [several]
specified exceptions. [Citations.]” (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
The parent-child beneficial relationship exception precludes adoption where (1) the
parent has maintained regular visitation and contact with the child, and (2) the child
would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) In
deciding whether the parent-child beneficial relationship exception applies, “the court
balances the strength and quality of the natural parent/child relationship in a tenuous
placement against the security and the sense of belonging a new family would confer.”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
              Historically, our courts have applied the substantial evidence standard of
review when the trial court finds that the parent-child beneficial relationship exception
does not apply. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.) In In re Bailey J.
(2010) 189 Cal.App.4th 1308, the Court of Appeal applied the substantial evidence
standard to the trial court’s determination whether a beneficial relationship exists, and the
abuse of discretion standard to the court’s determination whether the relationship is so
important that it compels a plan other than adoption. (Id. at pp. 1314-1315; see In re K.P.
(2012) 203 Cal.App.4th 614, 621-622; In re J.C. (2014) 226 Cal.App.4th 503, 530-531.)
Here, we affirm under either standard.
              Mother regularly visited the children in September and October 2014, but
after that, she visited sporadically. She attended one visit in November and one in

                                              10
December. She missed the visits in January and February, and following the termination
of reunification services, she missed visits due to drug testing issues. There is no
question that mother loves her children, but the number of unexcused visits and mother’s
inability to maintain her sobriety weigh against application of the parent-child beneficial
relationship exception. Simply put, the relationship between mother and her children did
not outweigh the well-being they would gain in a permanent home with new, adoptive
parents. “The reality is that childhood is brief; it does not wait while a parent
rehabilitates himself or herself. The nurturing required must be given by someone, at the
time the child needs it, not when the parent is ready to give it.” (In re Debra M. (1987)
189 Cal.App.3d 1032, 1038, superseded by statute on another ground as stated in In re
Eli F. (1989) 212 Cal.App.3d 228, 234.) Mother makes no showing that the trial court
erred in terminating parental rights and freeing the children for adoption. (See In re K.P.,
supra, 203 Cal.App.4th at pp. 622-623.)
                                       DISPOSITION
              The orders terminating mother’s parental rights and selecting adoption as
the permanent plan are affirmed.
              NOT TO BE PUBLISHED.




                                           PERREN, J.



We concur:



              GILBERT, P. J.



              YEGAN, J.


                                             11
                               Arthur A. Garcia, Judge

                        Superior Court County of Santa Barbara
                         ______________________________

             David A. Hamilton, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Michael C. Ghizzoni, County Counsel, and Toni Lorien, Senior Deputy
County Counsel, for Plaintiff and Respondent.
