Filed 7/25/14 In re Connor S. CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




In re CONNOR S., a Person Coming Under
the Juvenile Court Law.

MENDOCINO COUNTY HEALTH AND                                                           A139589
HUMAN SERVICES AGENCY,
                                                                                      (Mendocino County
         Plaintiff and Respondent,                                                    Super. Ct. No. SCUK-
                                                                                      JVSQ-12-16482-01)
         v.

D.S.,

      Defendant and Appellant.
________________________________________/

         D.S. (mother) appeals from the juvenile court’s termination of her parental rights
as to Connor S. (Connor) following a Welfare and Institutions Code section 366.26 (.26)
hearing.1 She contends the court erred by: (1) declining to apply the beneficial parent-
child relationship exception to termination of parental rights (§ 366.26, subd.

1
       Unless noted, all further statutory references are to the Welfare and Institutions
Code. Presumed father Teddy S. (father) is not a party to this appeal and is mentioned
only where necessary. We grant respondent Mendocino County Health and Human
Services Agency’s (the Agency) unopposed request for judicial notice of this court’s
order summarily dismissing mother’s Notice of Intent to File Writ Petition for failure to
comply with Rules of Court, rule 8.542(c)(1). (D.S. v. Superior Court of Mendocino
County (May 8, 2013, A138264).)
                                                             1
(c)(1)(B)(i)); (2) denying her section 388 petition without a hearing; and (3) denying her
requests for a bonding study and an “updated psychological evaluation.” Mother also
challenges the court’s jurisdictional dispositional findings, and the court’s termination of
reunification services.
       We affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       This case has a lengthy history. We provide a brief procedural history and recite
only those facts relevant to the issues mother raises on appeal.
Detention, Jurisdiction, and Disposition
       Connor was born in 2005. He has three significantly older siblings. Mother was
arrested three times between 1993 and 1997 for inflicting corporal injury on a spouse or
cohabitant (Pen. Code, § 273.5, subd. (a)) and convicted in 1997 for fighting in a public
place or challenging another person to fight in a public place (Pen. Code, § 415, subd.
(1)). Mother and father had “8 prior referrals, 5 of which were investigated from
February 2, 2005 to February 28, 2012[.]” A February 2012 referral “was closed as
inconclusive, as [ ] mother was uncooperative and refused to meet with the Agency.”
       In March 2012, the Agency filed, and later amended, a petition alleging Connor
came within section 300, subdivision (b) because mother had a substance abuse problem
and mental health issues inhibiting her ability to care for Connor. The operative second
amended petition alleged mother: (1) was arrested in January 2012 for driving under the
influence (Veh. Code, § 23152, subd. (a)) and tested positive for methamphetamine,
opiates, and THC; (2) was arrested in March 2012 after driving with Connor in the car
while under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a));
(3) “smokes marijuana and drinks beer while driving around with her son;” (4) was
raped, “which may have resulted in Post Traumatic Stress Disorder[;]” and (5) “is
suffering from long standing and chronic depression and mania. Bipolar disorder runs in
her family.” The court detained Connor, ordered both parents to submit to drug testing,
and authorized services and visitation for them.


                                             2
       The jurisdictional hearing was delayed numerous times and conducted over
several days in May and June 2012. At the hearing, the Agency offered evidence of a
2011 restraining order requiring mother to stay away from Connor’s maternal
grandmother (grandmother) and evidence that grandmother had been appointed guardian
of one of Connor’s brothers in 2012 based on documents averring “[t]here is a lot of
domestic violence in the home with the mother and children” and that mother was “not an
emotionally stable person and can be volatile at any time.” The Agency also offered
evidence regarding mother’s: (1) January and March 2012 arrests, and her June 2012
arrest for violating a protective order (Pen. Code, § 273.6, subd. (a)); (2) March and April
2012 positive tests for alcohol and THC; and (3) referral history and Agency
investigations.
       At the conclusion of the jurisdictional hearing, the court adjudged Connor a
dependent of the court (§ 300, subd. (b)). It explained the “allegations are very strong
that [mother] has a substance abuse problem that inhibits her ability to provide regular
care for the child. [¶] And also, based on the history and comments of all the different
family members, and even [grandmother’s] having to get a restraining order and the
guardianship . . . on the other child, that, I think, by a preponderance of the evidence that
there’s sufficient evidence that [mother] has a mental health issue that would inhibit her
ability to provide regular care for her child.”
       In its dispositional report, the Agency reported mother had not participated in
services and had been visiting Connor at grandmother’s residence in violation of the
restraining order. According to the Agency, Connor’s “visits with the mother are not as
appropriate as the father’s visits, and some visits have not been age appropriate.” Mother
disparaged the Agency during visits and held “Connor, age 6, like a baby.” At the
conclusion of the July 2012 dispositional hearing, the court determined by clear and
convincing evidence: (1) returning Connor to mother’s care would cause substantial
danger to Connor’s physical health, safety, protection, or physical or emotional well-
being; and (2) the “extent of the progress made by the mother . . . has been none.” The
court ordered family reunification services for both parents and ordered mother to, among

                                              3
other things, participate in a drug and alcohol treatment program and undergo a
psychological evaluation.
Psychological Evaluations and the Agency’s Section 388 Petition
       In November 2012, Dr. Jacqueline Singer, Ph.D., evaluated mother and
recommended she be eavulated by a psychiatrist. According to Dr. Singer, mother’s
thinking was “tangential and she showed significant problems with focus. She also had
difficulty in managing her emotions[.]” Dr. Singer opined: “It is not likely, given
[mother’s] inability to remain focused and her tangentiality, that she will be able to
benefit from services provided. She needs considerable encouragement due to her
dependency, but her own paranoia often results in her inability to perceive others as
wanting to help her. She also minimizes her challenges, both psychiatric and substance
related, and unless she is willing to participate in [substance abuse treatment] . . . and
understands her need for such treatment, it is not likely that she will benefit” from
reunification services “in the statutory time frame.”
       Dr. Albert J. Kastl, Ph.D., reached a similar conclusion after evaluating mother in
December 2012. He observed mother was “extremely animated with significant pressure
of speech and many tangential responses. She was easily distracted. [¶] . . . Her
calculation skills are extremely poor.” Dr. Kastl noted mother’s “memory skills fall at
approximately the 2nd percentile for the general population. These results highlight the
extreme difficulty she would have in retaining training material of the type offered in
reunification services.” Dr. Kastl opined mother was “unlikely that she could benefit
from reunification services within the statutory time frame” because of her “cognitive,
memory, and emotional issues[.]”
       Based on these evaluations, the Agency filed a section 388 petition (Judicial
Council form No. JV-180) to bypass reunification services pursuant to section 361.5,
subdivision (b)(2), which allows the court to bypass reunification services where there is
clear and convincing evidence “the parent . . . is suffering from a mental disability . . .
that renders . . . her incapable of utilizing those services.”


                                               4
Section 388 and Six-Month Review Hearing
       In reports prepared for the six-month review hearing, the Agency stated mother
tested positive for marijuana in July 2012 and November 2012, tested positive for
methamphetamine in March 2013, had been arrested for violating the protective order
(Pen. Code, § 273.6, subd. (a)), and had unexcused absences from group therapy sessions.
The Agency also described the problematic nature of mother’s visits with Connor: mother
was late to visits, and was argumentative and spent considerable time on electronic
devices. The Agency noted mother had begun treatment for mental health issues in
December 2012 and was “now engaged in her service objectives. What is uncertain is if
she is benefiting from these services in order to provide a stable home for Connor should
he be returned to her care.”
       At the conclusion of the six-month review hearing in March 2013, the court
terminated reunification services and set a .26 hearing. The court determined mother had
partially complied with her case plan but was not making “significant progress toward
alleviating or mitigating the causes necessitating placement. The extent of the progress
has been minimal.” It also found by clear and convincing evidence the Agency offered
reasonable reunification services to mother. Finally, the court granted the Agency’s
section 388 petition, concluding the evidence that mother suffered from a mental
disability justified terminating her reunification services. The court also concluded there
was a substantial likelihood reunification would not occur based on mother’s failure to
“make substantive progress toward her treatment plan.”
       The court advised mother of her right to seek appellate review of the order by
filing a petition for writ review. Mother filed a Notice of Intent to File Writ Petition,
which this court summarily dismissed after mother failed to file a timely writ petition.
(See Cal. Rules of Court, rule 8.542(c)(1).) (D.S. v. Superior Court of Mendocino
County, supra, A138264.)
Mother’s Section 388 Petition
       On the day of the .26 hearing, Catherine Manno — mother’s durable power of
attorney — filed a section 388 petition and supporting declaration requesting the court set

                                              5
aside certain orders due to changed circumstances.2 According to Manno, the Agency’s
failure to comply with the Indian Child Welfare Act of 1978 (25 U.S.C., § 1901 et seq.)
and mother and grandmother’s reconciliation constituted changed circumstances. The
court denied the section 388 petition without a hearing. It determined Manno did not
have standing to file the petition, and the petition was untimely and not properly served.
The court also concluded the facts in the petition and supporting declaration were not
new or relevant to the court’s decision to terminate services and that modifying the
court’s previous orders was not in Connor’s best interest.
       At that point, Manno told the court there was “never any bond assessment
ordered in this matter, and there was never an independent evaluation ordered[.]” Then
mother asked to have someone else “other than [the Agency]” evaluate her. Mother’s
counsel requested a continuance to allow mother to “obtain another psychological”
evaluation. The court denied the requests, explaining: “We continued this hearing once
already before, and we already have two psychological reports that address the issues.”
The .26 Hearing
       In its .26 hearing report, the Agency stated there was clear and convincing
evidence Connor “will be adopted if his parents’ rights are terminated” and recommended
terminating parental rights. The Agency reported “Connor is well adjusted in his present
placement. . . . [H]e has been even more content and less anxious since the visits were
reduced to once a month. Connor has told [the social worker] that he loves his mother
and would like to live with her again. On March 20, 2013, he told a foster sibling he
would like his mother to live in his foster home. With the exception of one incident,
Connor has been very happy in his present placement. He has said many times that he




2
       It appears the section 388 petition was lodged in the trial court, but it is not part of
the appellate record through no fault of mother. At mother’s suggestion, we assume for
the sake of argument her section 388 petition sought “the reinstatement of family
reunification services or the return of Connor to her care[.]”
                                               6
likes living there.”3 Connor’s counsel supported the Agency’s recommendation to
terminate parental rights.
       The California Department of Social Services (CDSS) determined Connor was
“likely to be adopted and recommend[ed] parental rights be terminated and a plan of
adoption be ordered.” Although it concluded the interaction between Connor and mother
“may have some incidental benefit,” it determined “such benefit does not outweigh the
benefit [he] will gain through the permanence of adoption. CDSS finds that termination
of parental rights would not be detrimental” to Connor.
       At the hearing, mother testified she was employed, had reconciled with
grandmother, was living at grandmother’s house, and was seeking treatment for Post
Traumatic Stress Disorder. Grandmother testified mother had resumed residing with her
in July 2013 and their relationship had improved. Counsel for mother argued Connor
was bonded to mother, loves her, and terminating parental rights “would cause a huge
detrimental effect” to him. Mother’s counsel urged the court to consider guardianship
with grandmother.
       At the conclusion of the August 2013 .26 hearing, the Court determined it was in
Connor’s best interest to terminate parental rights. It acknowledged there “would be
probably some benefit from parental contact” but concluded the benefit was “far
outweighed by the benefit of permanence in his case given the history of the tumult in
[Connor’s] family and his mother’s care.” The court considered and rejected
guardianship as an alternative because it was “fraught with problems” in part because of
“the dynamic between the mother and grandmother.”




3
       According to the Agency, Connor initially “wanted his mother and father to be
able to move into the foster home with him because he liked it there. [Later], he stated
that he wanted to move in with his mother or father. After dwelling in the current home
for several months, Connor stated that even though his parents couldn’t move into the
home with him, he wanted to stay in his current placement because he liked the family
and the school there.”
                                            7
                                        DISCUSSION
                                          I.
          The Court Did Not Abuse Its Discretion by Concluding the Beneficial
                 Parent-Child Relationship Exception Did Not Apply
       At great length, mother contends the court erred by declining to apply the
beneficial parent-child relationship exception to termination of parental rights (§ 366.26,
subd. (c)(1)(B)(i)). Under section 366.26, subdivision (c)(1), the court must terminate
parental rights if it finds the child is likely to be adopted unless the parent establishes, by
a preponderance of the evidence, one of the statutory exceptions applies. To establish the
applicability of the beneficial relationship exception, mother must demonstrate she
“maintained regular visitation and contact with [Connor] and [Connor] would benefit
from continuing the relationship” with her. (§ 366.26, subd. (c)(1)(B)(i).) The issue here
is whether mother can establish Connor would benefit from continuing the parental
relationship. She cannot.
       To determine whether the beneficial relationship exception applies, the juvenile
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. If severing the natural parent/child relationship would deprive the child of a
substantial, positive emotional attachment such that the child would be greatly harmed,
the preference for adoption is overcome and the natural parent’s rights are not
terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The beneficial
relationship exception is “difficult to make in the situation, such as the one here, where”
mother has not “advanced beyond supervised visitation.” (In re Casey D. (1999) 70
Cal.App.4th 38, 51 (Casey D.).) The beneficial relationship exception “may be the most
unsuccessfully litigated issue in the history of law. . . . [I]t is almost always a loser.” (In
re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5 (Eileen A.), disapproved on other
grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
       Here, the court determined the beneficial relationship exception did not apply
because any benefit in maintaining the parental relationship was “far outweighed by the


                                               8
benefit of permanence in [Connor’s] case given the history of the tumult in his family and
his mother’s care.” This determination was not an abuse of discretion. (In re K.P. (2012)
203 Cal.App.4th 614, 621-622 (K.P.).)4 Mother’s argument that visits were “positive”
does not persuade us the court abused its discretion by declining to apply the beneficial
relationship exception. Mother ignores the overwhelming evidence demonstrating many
visits were not positive. The visits remained supervised because of mother’s behavioral
issues: she was late, argumentative, and complained throughout the visits. During some
visits, mother allowed Connor to play computer games and spent considerable time
looking at her phone. For many visits, Connor was quiet, sullen, and did not initiate
conversation. He answered his mother with “yes” or “no” and rarely smiled. During
some visits, Connor did not want to hug his mother or sit on her lap.
       We are not persuaded by mother’s claim that the court erred by declining to apply
the beneficial relationship exception because Connor “needed to maintain his
relationship” with her. There is no dispute Connor loved mother and at one point told the
social worker he wanted to “return to his mother or grandmother.” On the other hand,
Connor’s emotional well being and behavior improved after the court reduced his visits
with mother and there was ample evidence Connor was comfortable in his foster home
and bonded with his foster family. Connor also considered his foster family his
“‘forever’ family.” Viewing the evidence in a light most favorable to the judgment, we
conclude the court did not abuse its discretion by concluding the beneficial relationship
exception did not apply. (In re G.B. (July 9, 2014, A140107, A140624) ___ Cal.Rptr.3d
___ [2014 WL 3350689] [trial court did not err by declining to apply beneficial

4
        “For years California courts have diverged in their view about the applicable
standard of review for an appellate challenge to a juvenile court ruling rejecting a claim
that an adoption exception applies. Most courts have applied the substantial evidence
standard of review to this determination” and at least one court “concluded that it is
properly reviewed for an abuse of discretion. [Citation.]” (K.P., supra, 203 Cal.App.4th
at p. 621, citing cases.) We adopt the “composite standard of review” to evaluate the
applicability of the beneficial relationship exception articulated in K.P. (Id. at pp. 621-
622.) We focus on the court’s conclusion with respect to the second prong, which we
review for abuse of discretion. (Id. at p. 622.)
                                             9
relationship exception where visits were supervised and children “were in a secure
placement and were bonded with their prospective caregivers”].)
       This case is not, as mother suggests, like In re S.B. (2008) 164 Cal.App.4th 289
(S.B.) In S.B., the record included a bonding study by a doctor describing the bond
between the father and the child as fairly strong and opining there was potential for harm
if the child lost her parental bond with the father. (Id. at pp. 295-296.) Here and in
contrast to S.B., the record is devoid of any evidence from a mental health provider,
social worker, or bonding expert that terminating parental rights would cause Connor
emotional or psychological detriment. Mother concedes there is a plausible argument
“Connor would not benefit from ongoing contact with [her],” likely because the Agency
and CDSS concluded terminating mother’s parental rights would not be detrimental to
Connor and because Connor’s attorney supported the termination of parental rights.
       To establish the beneficial relationship exception, mother was required to show
“more than that the relationship [with Connor] is ‘beneficial.’” (Casey D., supra, 70
Cal.App.4th at p. 52, fn. 4.) She needed to demonstrate her relationship with Connor
promoted his well-being “‘to such a degree that it outweighs the well-being [he] would
gain in a permanent home with new, adoptive parents.’ [Citation.]” (Ibid., quoting In re
Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342 (Lorenzo C.).) Mother failed to do so. We
conclude the court did not abuse its discretion by declining to apply the beneficial
relationship exception. (In re C.F. (2011) 193 Cal.App.4th 549, 555-556 [pleasant visits
between the mother and the child, and the child’s sadness at the end of some visits, did
not establish beneficial relationship exception].)5
                                          II.
             The Court Did Not Abuse Its Discretion by Summarily Denying
                            Mother’s Section 388 Petition
       Next, mother contends the court erred by denying her section 388 petition without
a hearing. According to mother, the court “was required to hold an evidentiary hearing”


5
        Mother’s claim that the Agency failed to adequately document certain visits does
not alter our conclusion.
                                             10
on the petition because it “presented new evidence and requested changes . . . that might
have served [Connor’s] best interest.” We disagree.
       A parent of a dependent child may, “upon grounds of change of circumstance or
new evidence,” petition the juvenile court to change, modify, or set aside any court order.
(§ 388, subd. (a).) The petition must allege why the requested change is “in the best
interest of the dependent child.” (§ 388, subd. (b).) “If it appears that the best interests of
the child . . . may be promoted by the proposed change of order, . . . the court shall order
that a hearing be held[.]” (§ 388, subd. (d).) The court may deny a section 388 petition
without a hearing when the petition fails to make a “prima facie showing of a change of
circumstances and that the proposed change of order is in the best interest of the child.”
(In re D.R. (2007) 155 Cal.App.4th 480, 487 (D.R).) We review the court’s summary
denial of a section 388 petition for abuse of discretion. (D.R., supra, at p. 487.)
       The court did not abuse its discretion by summarily denying mother’s section 388
petition (irrespective of the petition’s procedural deficiencies) because it failed to make a
prima facie showing changed circumstances. Manno’s declaration — the only evidence
offered in support of the petition — recited information already before the court, e.g., that
mother had been a victim of spousal abuse, that mother had been receiving mental health
treatment, and that mother and grandmother had reconciled. We reject mother’s claim —
unsupported by authority — that her establishment of a power of attorney “standing
alone, was prima facie evidence of a changed circumstance.”
       Nor did mother’s petition make a prima facie showing that reinstating
reunification services and/or returning Connor to her care would be in Connor’s best
interest. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081; In re G.B., supra, ___
Cal.Rptr.3d ___ [2014 WL 3350689].) In light of the evidence discussed above, mother
could not overcome the “rebuttable presumption that, in the absence of continuing
reunification services, stability in an existing placement is in the best interest of the child,
particularly when such placement is leading to adoption by the long-term caretakers.” (In
re Angel B. (2002) 97 Cal.App.4th 454, 465 (Angel B.) We conclude the court did not
abuse its discretion by summarily denying mother’s section 388 petition and the summary

                                              11
denial did not violate her due process rights. (In re E.S. (2011) 196 Cal.App.4th 1329,
1340 [no due process violation where decision on section 388 petition was based on
information provided in the petition, documentary evidence, and argument]; In re
Jackson W. (2010) 184 Cal.App.4th 247, 260.)
                                              III.
           The Court Did Not Abuse its Discretion by Denying Mother’s Request for a
                Bonding Study and an Updated Psychological Evaluation
       Mother claims the court abused its discretion by denying her request for a bonding
study and her request for an “updated psychological evaluation.” Assuming for the sake
of argument Manno’s statement that there was “never any bond assessment ordered in
this matter” was a request for a bonding study, the court did not abuse its discretion by
denying the request. Here, it was “unlikely that a bonding study would have been useful
to the juvenile court” because there was sufficient evidence upon which to evaluate the
bond between mother and Connor. (Lorenzo C., supra, 54 Cal.App.4th at p. 1341.) The
purpose of ordering a bonding study is to have an expert determine and then testify to the
attachment, if any, between the parent and child. Even without a bonding study, there
was ample evidence before the court regarding the bond between mother and Connor
because the Agency’s reports described mother’s visits with Connor and mother and
because grandmother testified about mother’s relationship with Connor.
       The court’s denial of mother’s request for a bonding study was also proper
because the request was untimely. Mother made the request on the day of the .26
hearing, five months after the court terminated reunification services. Granting the
request would have delayed the .26 hearing because the Agency would need time to
evaluate the study and prepare a response before the .26 hearing. (In re Richard C.
(1998) 68 Cal.App.4th 1191, 1197, fn. omitted [“[b]onding studies after the termination
of reunification services would frequently require delays in permanency planning. . . .
The Legislature did not contemplate such last-minute efforts to put off permanent
placement. . . .”].)



                                            12
       We also reject mother’s argument regarding the court’s denial of her request for an
“updated psychological evaluation.” Mother does not explain how an updated evaluation
would have altered the court’s conclusions at the .26 hearing, nor does mother cite any
authority requiring a juvenile court to order an updated psychological evaluation under
the circumstances present here.
                                             IV.
              Mother Has Waived Her Claims Regarding the Court’s Jurisdictional
                     and Dispositional Orders, and the Order Terminating
                                    Reunification Services
       Mother challenges the court’s jurisdictional and dispositional orders, and the order
terminating reunification services. We conclude mother has waived her admittedly
“belated challenges” to these orders because she did not appeal from the dispositional
order, nor petition for writ review after the court terminated reunification services and set
a .26 hearing. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018.)
       Mother waived her right to challenge the jurisdictional and dispositional orders by
failing to timely appeal from the July 2012 dispositional order. (In re Meranda P. (1997)
56 Cal.App.4th 1143, 1150-1152 (Merenda P.).) She has also waived her right to
challenge the March 2013 order terminating reunification services by failing to file a
petition for writ review. (§ 366.26(1)(1)(A).) The so-called “waiver rule” is justified on
numerous grounds, including: (1) “the 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.” (Merenda P., supra, 56 Cal.App.4th at pp. 1156-1157, fn.
omitted.)
       Because of these important policy considerations, courts enforce the waiver rule
unless “due process forbids it.” (In re Janee J. (1999) 74 Cal.App.4th 198, 208 (Janee
J.).) Due process is implicated only if mother shows: (1) there was a defect in the
proceedings “that fundamentally undermined the statutory scheme so that [she was] kept
                                              13
from availing . . . herself . . . of the protections afforded by the scheme as a whole;” and
(2) the defect was not merely an error that “might have been held reversible had [it] been
properly and timely reviewed.” (Id. at pp. 208-209.) She cannot.
       Mother contends her counsel was ineffective at the jurisdictional and dispositional
hearings, and at the contested six-month review hearing where the court terminated
reunification services. According to mother, counsel’s ineffectiveness was defect in the
statutory scheme that kept her from availing herself of the protections afforded by the
statutory scheme as a whole. We have reviewed the record and conclude this claim fails
because mother cannot demonstrate “‘counsel’s representation fell below an objective
standard of reasonableness . . . [¶] . . . under prevailing professional norms.’” (In re
Emilye A. (1992) 9 Cal.App.4th 1695, 1711, quoting Strickland v. Washington (1984) 466
U.S. 668, 688.)6 Ordinarily, “the proper way to raise an ineffective assistance claim is by
writ of habeas corpus, not appeal.” (Eileen A., supra, 84 Cal.App.4th at p. 1253.)
Mother cannot avoid application of the waiver rule for the additional reason that she
cannot show the alleged defect goes beyond an error that “might have been held
reversible had [it] been properly and timely reviewed.” (Janee J., supra, 74 Cal.App.4th
at p. 209.) Mother’s arguments to the contrary are unpersuasive and the cases she relies
on are distinguishable.
       We conclude the waiver rule bars mother’s claims regarding the jurisdictional and
dispositional orders and the order terminating reunification services. This case
exemplifies the “late-stage ‘sabotage of the process’” the waiver rule is designed to
prevent. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355, quoting Janee J., supra, 74
Cal.App.4th at p. 207.) A reversal based on alleged errors occurring at jurisdictional and


6
       The court’s failure to personally advise mother of her right to appeal from the
dispositional order does not alter our conclusion. The court could not personally advise
mother of her right to appeal because she left the hearing before it ended. We cannot
assume the decision not to appeal from the dispositional order was the result of counsel’s
“negligence, when it could well have been based upon some practical or tactical decision
governed by client guidance[,]” particularly where mother submitted on disposition. (In
re Arturo A. (1992) 8 Cal.App.4th 229, 243.)
                                             14
dispositional hearings over two years before the order terminating parental rights would
require the court to effectively begin the dependency proceedings “anew, thereby adding
at minimum another 14 months to the duration of the proceeding[.]” (Meranda P., supra,
56 Cal.App.4th at p. 1152.)
                                     DISPOSITION
      The order terminating mother’s parental rights is affirmed.




                                                       _________________________
                                                       Jones, P.J.




We concur:


_________________________
Simons, J.


_________________________
Needham, J.




                                           15
