1

Filed 7/15/21 In re M.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re M.G. et al., Persons Coming Under 

the Juvenile Court Law.

SAN BERNARDINO COUNTY 

CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

M.C.,

Defendant and Appellant.

E075247

(Super.Ct.Nos. J276040 & J276041

& J276042 & J276043 & J278394)

OPINION

APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace 

and Steven A. Mapes, Judges. Affirmed.

Susan Lawrence, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Michelle D. Blakemore, County Counsel, David Guardado, Deputy County 

Counsel, for Plaintiff and Respondent.
2

M.G. (Mother) appeals from the judgment establishing a legal guardianship for her 

children E.G., Ma.G., I.G., Me.G., and E.C. (collectively, the Children) at a Welfare and 

Institutions Code section 366.26 hearing. 

Mother claims that (1) there was insufficient evidence to support the juvenile 

court’s finding that Mother did not benefit from her services and that the Children could 

not safely be returned to her custody at the 18-month review hearing; (2) there was no 

substantial evidence that Mother was provided reasonable visitation; and (3) this court 

should find good cause to excuse Mother from filing an extraordinary writ from the 18-

month review hearing; or in the alternative this court should not enforce the forfeiture 

rule because the 18-month review hearing was fundamentally unfair so that an accurate 

and just decision was not obtained.

FACTUAL AND PROCEDURAL HISTORY

A. DETENTION OF E.G., MA.G., I.G., AND ME.G

This family first came to the attention of San Bernardino County Children and 

Family Services (Department) when it received a referral on February 9, 2018, regarding 

inadequate medical and dental care being given to E.G. (a boy, born May 2008), Ma.G. (a 

boy, born Sept. 2009), I.G. (a boy, born Oct. 2013), Me.G. (a girl, born Feb. 2017) 

(collectively, older siblings).1 

E.G., who was nine years old at the time, was still wearing diapers. He had only 

been to the doctor one time. E.G. was afraid of the bathroom. E.G. reported that Mother 

1

 The father, Is.G. (Father) is not a party to the appeal.
3

instigated domestic violence by attacking Father in front of the older siblings, and that he 

had broken Mother’s methamphetamine pipe. Mother and Father (collectively, Parents) 

were separated. Mother and maternal grandfather had gotten into a fight and maternal 

grandfather slapped Mother. I.G. had four black teeth and had not received proper dental 

care. 

A second referral was received on February 13, 2018, reporting that Ma.G. had 

cracked a tooth and it had not been fixed. Older siblings reported that they were not fed 

prior to going to school. 

A social worker went to the home of maternal grandparents where Mother and the 

older siblings were living. The house was clean and had no visible hazards. Mother 

advised the social worker that she and Father were getting a divorce. She admitted acts 

of domestic violence but the older siblings had not been hurt. She did not have the 

money to get I.G.’s or Ma.G.’s teeth fixed and Father provided no financial assistance. 

Maternal grandmother told the social worker she had no concerns about Mother. Mother 

did not use drugs and took care of the older siblings. She would assist Mother in getting 

dental care for I.G. Mother assured the Department she would get I.G.’s teeth fixed and 

she agreed that E.G. may need counseling to address his encopresis. I.G. told a social 

worker he had seen Parents fight. Ma.G. claimed he had not witnessed any domestic 

violence. 

Mother was a no-show for a drug test on April 3, 2018. Paternal grandparents 

were contacted. On April 27, 2018, a meeting was conducted with Father, paternal 

grandmother and Me.G. Mother had left Me.G. in the care of paternal grandparents and 
4

had not returned. Paternal grandmother reported that Mother would leave for days and 

maternal grandparents would care for the older siblings. Father admitted to domestic 

violence charges from 2017 and 2018. Mother claimed she had been kicked out of 

maternal grandparents’ home but older siblings were still in the home. Maternal 

grandfather denied that he kicked Mother out of the home. Mother was a no-show for 

drug testing again on May 1, 2018.

On May 2, 2018, Mother went to the home of maternal grandmother and told her 

that the social worker from the Department was lying and that Mother was doing 

everything she was supposed to be doing. I.G. had been scheduled for a dental 

appointment but Parents failed to take him to the appointment. 

A meeting was conducted on May 3, 2018, at the Department’s office. Mother 

admitted she was using methamphetamine and marijuana. It was determined that the 

older siblings would be detained with paternal grandparents. The older siblings could not 

be placed with maternal grandparents because Mother lived in the home. She stated she 

would move out but had nowhere to stay. The social worker was concerned that maternal 

grandmother covered for Mother and would not keep Mother from the older siblings. 

Ma.G. disclosed he had witnessed domestic violence between Parents. He had not said 

anything prior because he did not want Parents to get in trouble.

On May 7, 2018, the Department filed Welfare and Institution Code2section 300 

petitions against Parents for older siblings. A failure to protect was alleged against 

2

 All further statutory references are to the Welfare and Institution Code unless 

otherwise indicated.
5

Parents pursuant to section 300, subdivision (b), based on substance abuse, failing to 

provide adequate medical care, and engaging in domestic violence. It was alleged against 

Parents for Me.G. and Ma.G. that they failed to obtain adequate dental care for I.G. and 

medical care for E.G. This posed a risk to their siblings. It was alleged against Parents

for I.G., that they had failed to obtain adequate medical and psychological care for E.G.

(§ 300, subd. (j)). It was alleged against Parents for E.G. that they failed to provide 

adequate care for I.G. (§ 300, subd. (j)). Supervised visitation was recommended for 

Mother one time each week for two hours.

The detention hearing for the older siblings was held on May 8, 2018. Older 

siblings remained detained with paternal grandparents. Supervised visitation was for a 

minimum of one time each week for two hours with authority to the Department to 

increase frequency and duration. 

B. JURISDICTION/DISPOSITION REPORTS AND HEARING ON 

SECTION 300 PETITIONS FOR OLDER SIBLINGS

A jurisdiction/disposition report was filed on May 24, 2018, for older siblings’

section 300 petitions. It was recommended that the allegations in the section 300 

petitions be found true and that older siblings remain detained. Mother should be granted 

reunification services. Older siblings were happy and adjusting to paternal grandparents’ 

home.

Mother was interviewed on May 22, 2018. She felt some of the allegations in the 

detention report were untrue. She always properly fed the older siblings. She only 

occasionally used methamphetamine and marijuana. She used marijuana to relax and 
6

only used methamphetamine “ ‘when people piss[ed her] off.’ ” She acknowledged the 

domestic violence but she and Father were getting divorced. Mother was not working.

The Department provided information that on February 14, 2018, when the 

Fontana Police Department investigated the reports of child neglect, Mother admitted to 

using methamphetamine and that she was addicted to the substance. 

The matter was sent to mediation. According to the mediation report, Parents

agreed to submit on the section 300, subdivision (b), allegations and the subdivision (j),

allegations as alleged, as to I.G. only. The Department agreed to dismiss the section 300, 

subdivision (g), allegations and the section 300, subdivision (j), allegations pertaining to 

inadequate medical care for E.G. Older siblings would remain with paternal grandparents 

and supervised visitation would be one time each week for two hours. 

The jurisdiction/disposition hearing was conducted on June 22, 2018. Mother 

waived her rights and submitted on the section 300 petitions as agreed at mediation. 

Reunification services were ordered for Mother. Visitation was ordered for two hours 

each week with the Department authorized to liberalize visitation as to frequency and 

duration. Wraparound services were provided for E.G. effective July 31, 2018, and for 

Ma.G. effective October 2, 2018. 

C. DETENTION OF E.C.

Mother had been attending a substance abuse program in 2018 while she was 

pregnant with E.C. (a boy, born October 2018). Father was helping Mother care for E.C.

but they were not living together. Mother was living with the maternal grandparents. 

Mother was allowed to keep custody of E.C. but Father was not to have any contact with 
7

E.C. Mother had been doing well in her domestic violence therapy. On October 17, 

2018, a family planning meeting was held. Mother had moved in with a paternal aunt 

who agreed to help with E.C. 

On October 29, 2018, the Department filed a section 300 petition for E.C. Father 

was named alleged father of E.C. The petition alleged pursuant to section 300, 

subdivision (b), failure to protect, that Mother had a history of substance abuse, and had a 

history of engaging in domestic violence. It was further alleged pursuant to section 300, 

subdivision (j), that older siblings had been detained from Mother due to her substance 

abuse and domestic violence and Mother had not completed her reunification services. 

At the detention hearing on October 30, 2018, E.C. was removed from Father’s custody 

but remained in Mother’s custody.

An amended section 300 petition was filed on November 9, 2018, for E.C. E.C.

had been detained from Mother and had been placed with paternal grandparents. The 

allegations in the amended petition remained the same. On November 9, 2018, Mother 

moved out of paternal aunt’s home and into a sober living home with E.C. but then she 

was removed from the sober living home for failing to follow program rules. Mother 

moved back in with maternal grandparents. Further, Mother had been terminated from 

individual therapy based on only attending one session. At the detention hearing for 

E.C., the juvenile court ordered E.C. remain out of Mother’s custody and he was placed 

with paternal grandparents. Visitation was ordered to be one time each week for two 

hours, supervised.
8

D. JURISDICTION/DISPOSITION REPORT FOR E.C.

The jurisdiction/disposition report for E.C. was filed on November 20, 2018. 

Reunification services were recommended for Mother. The Department was concerned 

about Mother living with maternal grandparents as Mother continued to fight with 

maternal grandfather. Mother was trying to enroll in another substance abuse program. 

E.C. was placed with the older siblings. A paternity test showed that Father was E.C.’s 

biological father.

The hearing was held on December 4, 2018. Mother testified. She had been 

removed from the sober living facility for taking pain medication and posting a video 

online while in the facility. She had no positive drug tests. She then moved back in with 

maternal grandparents. She was still planning to divorce Father. She was attending a 

new outpatient drug treatment program and had been sober throughout her pregnancy. 

She wanted E.C. to remain in her custody. The juvenile court found the allegations in the 

section 300 petition true. E.C. was to remain in paternal grandparents’ custody. Mother 

had exercised bad judgment and seemed to minimize the issues in the case. Reunification 

services were granted to Mother and visitation was to be supervised one time each week

for two hours. Mother was advised that she could seek appellate review if she disagreed 

with the orders of the juvenile court and would need to file a notice of appeal within 60 

days.

E. STATUS REVIEW REPORTS FOR CHILDREN

A six-month status review report was filed for older siblings on December 19, 

2018. It was recommended that older siblings remain in the home of paternal 
9

grandparents and that reunification services for Mother be continued. I.G. and Ma.G.

both had their teeth fixed. E.G. continued to wear diapers but was making efforts to use 

the restroom. There was no medical reason for his inability to control his bladder. 

Paternal grandmother reported that the Children were doing well in the home and in 

school. They were benefitting from Wraparound services. 

Mother had four negative drug tests in August and September 2018. There were 

no additional updates although Mother was participating in domestic violence and 

parenting classes. Visitation with Mother and older siblings had mostly been appropriate. 

During one visit, at which paternal grandmother transported the older siblings to maternal 

grandparents’ home, older siblings were uncomfortable because Mother and maternal 

grandfather were arguing. E.G. and Ma.G. no longer wanted to visit Mother in maternal 

grandparents’ home. During visits, Mother played with older siblings and displayed 

appropriate limit settings. Mother had moved out of maternal grandparents’ home and 

did not have stable housing. The trial court continued reunification services and added

“authority for unsupervised visits for parents. Any overnights, weekends, and return by 

approval packet.”

On February 19, 2019, the Department submitted a progress report from Mother’s 

therapist. Mother was not consistent in attending therapy sessions; she attended five out 

of eight sessions. Mother had trauma in her childhood. She was reported as being 

suicidal and had impulse control problems. The therapist opined Mother’s mental health 

difficulties may be a result of substance abuse. The therapist recommended an additional 

eight sessions and a full psychological examination, which the juvenile court approved.
10

On May 29, 2019, the Department filed the 12-month status review report for 

older siblings. The Department recommended older siblings remain in the home of 

paternal grandparents and that family reunification services continue.

Mother had enrolled in an alcohol and drug treatment program but had been 

removed from the program for refusing to random drug test on April 3, 2019. She also 

admitted using methamphetamine on February 5, 2019, and tested positive on that day. 

On February 22 and March 13, 2019, she refused to drug test. She enrolled in her third 

drug and alcohol program on April 4, 2019. The Department did not have the results of 

Mother’s psychological exam. E.G. still required medical attention for his encopresis. 

Ma.G. had been diagnosed with Attention Deficit Disorder. I.G., Ma.G. and E.G. had 

become more aggressive but Wraparound services were helping them. E.C. moved into 

paternal grandparents’ home in November 2018. 

Mother regularly visited with the Children. Mother made paternal grandmother 

uncomfortable so visits were supervised at the Department offices. Mother held E.C. and 

Me.G., and talked to E.G., I.G. and Ma.G. while they played with toys. Mother had 

completed her parenting and domestic violence classes. The juvenile court continued 

Mother’s reunification services. Wraparound services were ordered for I.G.

On May 28, 2019, the Department filed a six-month status review report for E.C. 

It was recommended reunification services be continued and that E.C. remain in paternal 

grandparents’ home. The Department provided the same information as in the older 

siblings’ 12-month status review report including the February 4, 2019, therapy update. 
11

E.C. was healthy and developing normally. On June 5, 2019, the juvenile court 

continued reunification services.

The Department filed its 18-month status review report for older siblings on 

October 28, 2019, recommending that reunification services be terminated and that the 

section 366.26 hearing be set to establish a permanent plan of guardianship. Mother had 

completed her parenting class, domestic violence class and a psychological evaluation. 

Mother had been discharged from a third drug and alcohol treatment program on June 4, 

2019, because she failed to consistently attend the program. She was allowed to reenroll 

in the program, but a progress report submitted to the Department on September 23, 

2019, showed that she was still not consistent in attending. She had negative drug tests in 

August and September 2019. Mother was attending therapy. Mother was making “some 

progress” toward reaching her goals. She was sharing her feelings in a more natural way 

and was demonstrating more stability. The psychological evaluation was included with 

the report. The social worker was attempting to obtain an updated report from Mother’s 

therapist.

E.G. was still wearing diapers but had been referred to specialists to determine if 

he had a medical issue that could resolve the problem. E.G. got into verbal altercations

and would hit his siblings, and would use foul language, but he was getting better with 

Wraparound services. I.G. had become more aggressive but was working with 

Wraparound services to control his behavior. 
12

Paternal grandparents were willing to be the legal guardians of the Children. 

Mother was consistent in visitation with the Children. Mother was living with maternal 

grandparents; E.G. and Ma.G. expressed concern about living with Parents. 

Mother’s psychological examination was conducted on April 2, 2019. Mother was 

31 years old. She had no reports of any abuse or problems in her childhood. She 

dropped out of high school in 12th grade and had been employed sporadically due to 

being pregnant or caring for her children. Mother occasionally used marijuana but had 

not used in two years. She started using methamphetamine regularly when she was 29 

years old and had last used two weeks prior to the evaluation. She denied any mental 

health issues; she was not depressed. Mother had been with Father since she was 17 

years old. When Mother was 27 years old, with three children, Father had employment 

problems and cheated on her. In 2017, Father beat her, giving her a black eye. Father 

continued to beat her and cheat on her despite her becoming pregnant with their fourth 

child. She admitted hitting and kicking him in the past. 

The evaluator concluded that Mother suffered from mild depression. She had 

some indication of “Dependent Personality Traits” as she had a history of dependency on 

others. She continued to engage in impulsive drug use when faced with stressors. 

Mother should continued to participate in therapy where she could be taught effective 

ways to manage these stressors without drug use, and to address her continued 

relationship with Father despite domestic violence. She had no real plan for how she 

would care for five children on her own. The evaluator concluded, “the same level of 
13

risk that existed to the children prior to the involvement of [the Department] remains at 

the current time.”

On October 28, 2019, the Department provided additional information to the 

juvenile court, including the therapist’s report dated July 31, 2019, which showed that 

Mother had attended 20 out of 20 sessions between September 2018 and August 2019. 

Mother was motivated and engaged at counseling and she was making good progress. 

Mother had completed parenting classes, domestic violence classes and her therapy 

sessions. “Her behavior and insight have been remarkable.” She was stable both 

mentally and functionally and she insisted she was not abusing controlled substances.

On November 1, 2019, at a section 366.22 hearing for the older siblings, the 18-

month review hearing was set contested. Mother’s counsel reported that Mother had 

completed 20 weeks of counseling and had completed a drug and alcohol program. 

Mother was authorized to have unsupervised visits.

On November 18, 2019, the Department filed a 12-month status review report for 

E.C. It recommended that reunification services for Mother be terminated and that a 

section 366.26 hearing be set with a permanent plan of legal guardianship with paternal 

grandmother. The Department again reported that Mother had trouble being consistent in 

her substance abuse treatment. The Department also reported the progress Mother had 

made in therapy and included the psychological evaluation. E.C. was happy in paternal 

grandmother’s home. Mother was appropriate during visits with E.C. She played with 

him, fed him and changed his diaper. 
14

The certificate dated October 31, 2019, showing that Mother had completed a drug 

and alcohol treatment program was provided to the juvenile court along with the 12-

month status review report.

On November 18, 2019, additional information was provided by the Department

for older siblings. Paternal grandmother reported that Mother had three unsupervised 

visits with the Children. E.G. reported to paternal grandmother that during the visit 

Mother continuously asked him about Father, which made him uncomfortable. Father 

also had given E.G. and Ma.G. cellular telephones and Mother called them three times 

each day. Mother tried to call them during school hours. Mother had called E.G. at 1:00 

a.m. On November 16, 2019, Mother called several times and was told by E.G. and 

Ma.G. they could not talk to her at that time. Mother then texted paternal grandmother 

asking to speak with E.G. and Ma.G, and threatened to call the police. E.G. was worried 

that the police were going to come to paternal grandparents’ house. 

E.G. advised a social worker he was uncomfortable during visits with Mother 

because she asked about Father. Mother asked if Father was living with paternal 

grandparents, which E.G. denied. Mother did not believe him. E.G. was worried that 

paternal grandmother was going to jail. E.G. did not feel safe with Mother because “she 

acts weird and she gets into bad moods.” Ma.G. reported Mother called him all the time. 

When asked if he felt safe visiting with Mother alone, he responded “I don’t know. Yes.” 

Mother was living in maternal grandparents’ home but maternal grandparents had moved 

out. Mother did not believe calling E.G. and Ma.G. three times each day was excessive. 

She denied she asked E.G. about Father and also denied calling E.G. at 1:00 a.m.
15

The Department was concerned that despite Mother completing her education 

classes and counseling she was still a danger to the Children. The Department 

recommended that someone from Mother’s family be present during visits. 

The 18-month status review hearing for older siblings was held on November 19, 

2019. Mother was present and testified. Mother insisted she had finished her case plan 

and found a place to live. She completed her drug and alcohol treatment two weeks prior. 

Mother had tried to drug test the day before but had not been in the system. She had been 

consistent in visitation and she believed the Children wanted to return to her care. They 

cried at the end of visits and wanted to go home with her. 

Mother denied constantly asking about Father during visits. She had cut down 

calling E.G. and Ma.G. to two times a day. She denied calling during school hours and 

that she threatened to call the police on paternal grandmother. The call at 1:00 a.m. to 

Ma.G. was probably a “butt” dial. Paternal grandmother sometimes made her feel that 

she was a bad mom. She did not plan to reunify with Father.

Mother’s counsel objected to the setting of the section 366.26 hearing. The 

Children should be returned to Mother’s care. Mother loved the Children and was able to 

care for them. The Department argued that despite Mother appearing to have completed

her case plan, she had not benefitted from services. Mother’s therapist had noted in a 

November 1 update that Mother had frequent mood swings and had some instability. 

Mother testified that “everyone lies” about her. Older siblings had reported being 

uncomfortable with unsupervised visits. Further, Mother’s information was, in fact, in 

the system to allow her to be drug tested. 
16

The juvenile court terminated Mother’s reunification services for older siblings 

and set the section 366.26 hearing with a permanent plan of legal guardianship with 

paternal grandparents. The juvenile court noted the last therapist’s report showed Mother 

had not benefitted from services. Mother’s perception was much different than others. 

Visitation continued supervised one time each week. Mother was advised of her right to 

file a writ petition. 

The 12-month status review hearing for E.C. was held on November 20, 2019. 

Mother was not present at the hearing. The juvenile court found Mother failed to 

complete her court-ordered case plan. Mother’s counsel requested the matter be set 

contested. The juvenile court stated that Mother had been present at the hearing the prior 

day involving older siblings; it had heard Mother’s testimony and the testimony was 

“unconvincing.” Further, since E.C. was only one year old, there was even more need for 

permanency. The juvenile court wanted to hear the matter immediately. Mother’s 

counsel noted the report did not reflect that Mother had completed a drug and alcohol 

program. The juvenile court disagreed and noted that the information had been provided. 

Mother’s counsel also noted Mother had appropriate housing, which had not been 

assessed. Mother’s counsel argued that reunification services should not be terminated. 

Minor’s counsel agreed with the recommendations of the Department. The psychological 

evaluation was concerning in that Mother was not capable of caring for E.C. The 

Department agreed that Mother was not benefitting from her services. Further, Mother 

had been granted unsupervised visits but they were changed back to supervised.
17

The juvenile court noted it would do the same as it had done with the older 

siblings. The testimony of Mother for E.C. would be the same as it was for the older 

siblings. Reunification services were terminated and a section 366.26 hearing was to set 

to be held at the same time as the older siblings’ hearing. Visitation continued one time 

each week for two hours. 

On November 27, 2019, Mother filed a notice of intent to file a writ petition to 

contest the finding at the 12-month review hearing for E.C. and the 18-month review 

hearing for older siblings. No writ petitions were filed. 

F. SECTION 366.26 REPORT

A combined section 366.26 report for the Children was filed on March 11, 2020. 

It was recommended that paternal grandparents be appointed legal guardians and the case 

be dismissed. Paternal grandparents believed that legal guardianship was the most 

appropriate plan. Mother was regularly visiting with the Children. If Mother failed to 

consistently visit, paternal grandparents would seek adoption.

Older siblings had no significant medical issues. E.G. still had uncontrolled 

urination and bowel movements. No medical problem had been discovered and it was 

believed emotional issues prevented him from going to the restroom. He would receive 

continued medical care. The Children were developing normally. Mother had visits with 

the Children two or three times each month supervised by the paternal grandparents. The 

visits were appropriate. Visitation with Mother was recommended to continue.
18

G. SECTION 366.26 HEARING

The section 366.26 hearing was held on June 17, 2020. Mother’s counsel 

requested that the section 366.26 hearing be set for trial so Mother could testify. The 

juvenile court noted that the recommendation was legal guardianship and asked what 

Mother would be testifying to. Mother’s counsel responded that Mother wanted the 

Children returned to her care and she objected to the legal guardianship. The juvenile 

court responded, “Well since return is not an issue at a .26 hearing I’m going to deny that 

request.” 

The juvenile court appointed paternal grandparents the legal guardians of E.C. and 

the older siblings. Mother was granted visitation a minimum of two times each month for 

two hours. The case was closed.

Mother filed a notice of appeal on June 23, 2020. She did not state from which 

order she was appealing.

DISCUSSION

Mother claims insufficient evidence was presented at the section 366.22 review 

hearings to support that returning older siblings and Evan to her care would create a 

substantial risk of detriment to the safety or well-being of the children, and that she did 

not benefit from her services. The trial court also failed at the review hearings to make a 

specific finding that reasonable services had been provided to her, including whether she 

received reasonable visitation. The juvenile court should not have set the section 366.26 

hearing. As acknowledged by Mother, such claims are not reviewable from an appeal of 

a section 366.26 hearing. Mother was required to seek relief through the filing of an 
19

extraordinary writ pursuant to section 366.26, subdivision (l), and she did not file such 

writ. Mother insists there is good cause to excuse her failure to file an extraordinary writ

as she should have been given an opportunity to file the writ petition in propria persona

once counsel determined that there were no factual or legal issues upon which to base a 

writ petition. Further, she should be excused from failing to file a writ petition because 

the 12-month and 18-month status review hearings for the children were fundamentally 

unfair because the social worker had a conflict of interest and Mother received ineffective 

assistance of counsel (IAC).

A. FAILURE TO FILE WRIT PETITION

A party may not, through an appeal of the most recent dependency order, 

challenge a prior order for which the statutory time for a notice of appeal has expired. (In 

re Liliana S. (2004) 115 Cal.App.4th 585, 589; see also In re Meranda P. (1997) 56 

Cal.App.4th 1143, 1150 [“an unappealed disposition or postdisposition order is final and 

binding and may not be attacked on an appeal from a later appealable order”].) “The rule 

serves vital policy considerations of promoting finality and reasonable expedition, in a 

carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’ 

through a parent’s attacks on earlier orders.” (In re Jesse W. (2001) 93 Cal.App.4th 349, 

355.) 

“A setting order is not appealable; direct appellate consideration of the propriety 

of the setting order may be had only by petition for extraordinary writ review of the 

order.” (In re Cathina W. (1998) 68 Cal.App.4th 716, 719, fn. omitted (Cathina W.); see 

§ 366.26, subd. (l).) This writ requirement is implemented by the California Rules of 
20

Court, rules 8.450 and 8.452. (In re A.A. (2016) 243 Cal.App.4th 1220, 1239-1240 

(A.A.).) “Failure to file a petition for extraordinary writ review within the period 

specified by rule, to substantively address the specific issues challenged, or to support 

that challenge by an adequate record shall preclude subsequent review by appeal of the 

findings and orders made pursuant to this section.” (§ 366.26, subd. (l)(2).)

“ ‘When the court orders a hearing under Welfare and Institutions Code section 

366.26, the court must advise all parties and, if present, the child’s parent, guardian, or 

adult relative, that if the party wishes to preserve any right to review on appeal of the 

order setting the hearing under Welfare and Institutions Code section 366.26, the party is 

required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and 

Request for Record (California Rules of Court, Rule 8.450) (form JV–820) or other 

notice of intent to file a writ petition and request for record and a Petition for 

Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV–825) or 

other petition for extraordinary writ.’ ” (A.A., supra, 243 Cal.App.4th at p. 1240.)

“The courts have consistently held that when a parent is not properly advised of 

his or her right to challenge the setting order by extraordinary writ, and consequently the 

parent does not timely file a writ petition, good cause exists to consider issues relating to 

the setting hearing in an appeal from the order terminating parental rights.” (In re A.A.,

supra, 243 Cal.App.4th at p. 1235; see In re Cathina W., supra, 68 Cal.App.4th at pp. 

722-725.) 

Here, Mother was present at older siblings’ 18-month review hearing at which the 

juvenile court set the section 366.26 hearing. Mother was advised of the requirement to 
21

file a writ petition if she did not agree with the findings at the hearings. She was not 

present at E.C.’s 12-month review hearing but was sent notice by mail of her requirement 

to file a writ. Mother’s counsel filed a notice of intent to file writ petition on November 

17, 2019, for both E.C. and the older siblings. Mother’s counsel sent a letter to this court 

on January 6, 2020, advising that she had carefully reviewed the factual and legal issues 

and determined that there were no grounds to file a writ petition pursuant to California 

Rules of Court, rules 8.450 and 8.452.

As such, the failure by Mother to file the writ petition bars consideration of the 

issues raised by Mother on appeal. Her claims that insufficient evidence was presented to 

support the juvenile court’s decision that it would be a detriment to return the Children to

her care, that she had not benefitted from her services, and that she had not been afforded 

reasonable reunification services, and the court’s ultimate decision to set the section 

366.26 hearing, are not cognizable. 

B. GOOD CAUSE FOR FAILURE TO FILE WRIT PETITION

Mother insists there is good cause for her failure to file a writ petition as her trial 

counsel did not give her notice that counsel had decided not to file the writ petition; and 

this court should create a new rule that Mother should be notified and afforded the 

opportunity to file her own writ petition.

California Rules of Court, rule 8.450(c) provides in pertinent part that “petitioner’s 

trial counsel, or in the absence of trial counsel, the party, is responsible for filing any 

notice of intent and writ petition under rules 8.450-8.452.” Here, a notice of intent to file 

writ petition for the Children was filed on November 17, 2019, by Mother’s trial counsel. 
22

Thereafter, counsel for Mother, the same counsel present at the 18-month review hearing, 

notified this court that such writ petition would not be filed as no factual or legal issues 

existed to support filing the writ. 

Mother’s counsel did not have an obligation to file a writ petition. “[I]t is 

incumbent upon counsel who participate in dependency cases to advocate their clients’ 

positions fully and effectively. This does not mean that counsel should file a . . . petition 

in every case, or in every case in which the client has filed a notice of intent to file such a 

petition. To the contrary, an attorney is required to maintain only such actions or 

proceedings ‘as appear to him or her legal or just.’ ” (Glen C. v. Superior Court (2000) 

78 Cal.App.4th 570, 582 (Glen C.).) In other words, “[W]hen an attorney evaluates a 

case and determines there is no potentially meritorious issue to be raised, a petition for 

extraordinary writ simply should not be filed.” (Id. at p. 584, italics added.)

We must conclude on this record that Mother’s counsel properly determined that 

filing a writ petition was not warranted under the facts of the case. As stated, without the 

filing of the writ petition, Mother cannot contest the findings at the 18-month and 12-

month review hearings. 

Mother contends that this court should conclude that when trial counsel 

determines a writ should not be filed, a parent should have the opportunity to file the writ 

petition in propria persona within the 10-day limitation period. Mother acknowledges 

that there is no case law supporting such a rule.
23

We decline to impose such a rule. While there are no cases directly on point 

addressing the filing of an in propria persona writ petition once counsel has decided that a 

writ petition should not be filed, there is support in other analogous cases for this court’s 

determination that Mother is not entitled to such opportunity. 

In Glen C., supra, 78 Cal.App.4th 570, an inadequate writ petition was filed by the 

father of minors and he argued on appeal that the appellate court should independently 

review the record for possible errors. The court held, “Independent review along the 

lines of Anders v. California (1967) 386 U.S. 738 [] and People v. Wende (1979) 25 

Cal.3d 436 [] would impose an extraordinary burden on the courts [citation] and is not 

required by either constitutional principle or policy for appeals from orders adversely 

affecting child custody or parental status (In re Sade C. (1996) 13 Cal.4th 952 []). Sade 

C. determined that Anders review, which is prophylactic in nature, is constitutionally 

required only for a criminal defendant represented by appointed counsel on his or her first 

appeal of right. [Citation.] Weighing the factors identified in Lassiter v. Department of 

Social Services (1981) 452 U.S. 18, 27 [], in the context of dependency appeals—and 

stressing the presumptive accuracy and justness of the decision appealed from—the court 

found the private interests of the parent and child ‘fundamental’ and ‘compelling,’ but 

presumptively inconsistent; the interest of the state in the child’s welfare and in accurate 

and just resolution of the parent’s appeal ‘compelling’ and ‘important,’ and its interest in 

reducing the cost and burden of the proceedings ‘legitimate’; and the risk of error from 

absence of Anders review ‘negligible.’ ” (Id. at p. 579.) The court concluded “Certainly 
24

parents in these proceedings have no constitutional right to Anders/Wende review.” (Id.,

at p. 580.) 

Further, in In re Phoenix H. (2009) 47 Cal.4th 835, mother’s parental rights to her 

two sons were terminated. Her counsel on appeal filed an opening brief setting forth the 

procedural facts and history of the case but presented no arguable issues. Appellate 

counsel requested that the Court of Appeal independently review the record on appeal to 

determine if reversable errors were made. In addition, counsel requested that the 

appellate court give mother the opportunity to file her own supplemental brief. (Id. at p. 

838.) The Court of Appeal declined to allow the filing of a brief by the mother and the 

California Supreme Court granted review. The California Supreme Court concluded, 

“the Court of Appeal is not required to permit the parent to file an additional brief absent 

a showing of good cause.” (Id. at p. 843.) It determined as such, surmising “The delay 

that would ensue from requiring the Court of Appeal to permit an indigent parent to 

personally file a brief after appointed counsel has determined there are no arguable 

issues, absent a showing of good cause, would not be justified by an increase in fairness 

or accuracy of the proceedings.” (Id. at p. 844.)

Here, Mother’s counsel attested to this appellate court that she had carefully 

reviewed the record and found no factual or legal issues on which to base the 

extraordinary writ. Based on such finding, counsel did not file the writ and the matter 

was dismissed. We decline to find that Mother should have been afforded the 

opportunity to file a writ in propria persona. Like the court in Glen C. declined to 

independently review the record for error when counsel filed a no issue writ, and the 
25

court in In re Phoenix H. declined to allow the mother to file a supplemental brief 

without good cause, we also decline to impose a rule that when counsel does not file a 

writ finding there are no issues properly raised in a writ, a parent is entitled to file his or 

her own writ as such review is not constitutionally mandated and would overburden the 

courts.3

Mother also appears to claim that she received IAC due to her counsel’s failure to 

file the writ petition. Mother surmises that it is “doubtful” counsel reviewed Mother’s 

last counseling report prior to informing this court she would not be filing a writ petition. 

Counsel should have filed a writ petition to address that the juvenile court failed to 

properly address Mother’s final therapist’s report. 

“We address a claim of [IAC] in the dependency context by applying a two-part 

test. In the first step, we examine whether trial counsel acted in a manner expected of a 

reasonably competent attorney acting as a diligent advocate. If the answer is no, we 

move to the second step in which we examine whether, had counsel rendered competent 

service, the outcome of the proceeding would have been more favorable to the client.” 

(In re Ana C. (2012) 204 Cal.App.4th 1317, 1329-1330.) We reverse for IAC “only if the 

record on appeal affirmatively discloses that counsel had no rational tactical purpose for 

his [or her] act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.)

3 Mother’s counsel at oral argument briefly referenced a miscellaneous order that 

supported her position but such argument was not raised in the briefing and will not be 

addressed by this court.
26

Here, the record is silent as to the specific reasons Mother’s counsel did not file 

the writ petition. Mother’s counsel stated that she had reviewed the record and 

determined that there was no factual or legal basis for filing the writ petition. Based on

the appellate record, we must presume Mother’s counsel reviewed the record as stated, 

which indisputably included Mother’s final therapist’s report, but also included Mother’s 

psychological evaluation and an update on the visits between her and the older siblings. 

The record does not support that Mother’s counsel simply ignored the records in this case 

in deciding not to file the writ petition.

As stated, it was incumbent upon Mother’s counsel, if she determined that there 

were no meritorious issues to be raised, to not file the petition. (Glen C., supra, 78 

Cal.App.4th at p. 582.) Based on the record, Mother’s counsel could have reasonably 

determined that a writ petition should not be filed. Without any further evidence in the 

record that Mother’s counsel failed to review the record or relied on improper records, 

Mother cannot establish an IAC claim on appeal on the grounds that counsel should have 

filed a writ petition. 

C. FUNDAMENTALLY UNFAIR REVIEW HEARING

Mother additionally claims that this court should review her claim by finding an 

exception to the waiver rule because the review hearings were fundamentally unfair

based on (1) the social worker had a conflict of interest and worked against her; and 

(2) her counsel was ineffective because she failed to adequately prepare for the review 

hearings.
27

As we have stated, “The [waiver] rule serves vital policy considerations of 

promoting finality and reasonable expedition, in a carefully balanced legislative scheme, 

and preventing late-stage ‘sabotage of the process’ through a parent’s attacks on earlier 

orders.” (In re Jesse W., supra, 93 Cal.App.4th at p. 355.) As explained in In re M.F. 

(2008) 161 Cal.App.4th 673, “The waiver rule balances the interest of parents in the care 

and custody of their children with that of children in expeditiously resolving their custody 

status. [Citation.] In most instances, a parent’s due process interests are protected 

despite the application of the waiver rule because the dependency system has numerous 

safeguards built into it to prevent the erroneous termination of parental rights. [¶] But,

the waiver rule will not be applied if ‘ “due process forbids it.” ’ ” (Id. at pp. 681-682.) 

There are exceptions to the waiver rule. “First, there must be some defect that 

fundamentally undermined the statutory scheme so that the parent would have been kept 

from availing himself or herself of the protections afforded by the scheme as a whole.

Lack of notice of [the right to file a writ petition] was one such example in Cathina W.

Second, to fall outside the waiver rule, defects must go beyond mere errors that might 

have been held reversible had they been properly and timely reviewed. To allow an 

exception for mere ‘reversible error’ of that sort would abrogate the review scheme 

[citation] and turn the question of waiver into a review on the merits.” (In re Janee J.

(1999) 74 Cal.App.4th 198, 208-209 (Janee J.).) 

Mother has presented no defect that fundamentally undermined the statutory 

scheme so that she was prevented from availing herself of the protections afforded by the 
28

scheme as a whole. Mother admits she was advised of her right to file a writ petition. 

We have rejected her claim of IAC in failing to file a writ petition. 

Mother insists that the social worker had a conflict of interest and worked against 

her. Mother claims the social worker determined during the reunification period that it 

was best for the Children to be placed in a legal guardianship with the paternal 

grandparents; the social worker failed to properly investigate the domestic violence 

allegations; and failed to timely obtain Mother’s progress reports in therapy. Further, the 

social worker failed to properly update the reports submitted to the juvenile court. 

Although Mother claims that this resulted in the proceedings being fundamentally unfair, 

as we have set forth at length in our procedural and factual history, the Department 

submitted all of the reports from Mother’s therapist and a psychological evaluation. The 

Department recommended on two occasions that Mother be granted additional 

reunification services. Mother simply is attempting to avoid the waiver of her claims by 

raising “errors that might have been held reversible had they been properly and timely 

reviewed” but do not entitle her to escape the waiver rule. (Janee J., supra, 74 

Cal.App.4th at pp. 208-209.) 

Mother further attempts to avoid the waiver rule by claiming that her counsel at 

the 18-month and 12-month review hearings was ineffective because it was clear she was 

unprepared. Such ineffective assistance of counsel rendered the review hearings

fundamentally unfair. “[L]ate consideration of [IAC] claims defeats a carefully balanced 

legislative scheme by allowing a back-door review of matters which must be brought for 

appellate review by rule [8.450] writ at the setting hearing stage or by earlier appeals, that 
29

is, before the point is reached where reunification efforts have ceased and the child’s

need for permanence and stability become paramount to the parent’s interest in the

child’s care, custody and companionship.” (Janee J., supra, 74 Cal.App.4th at p. 208.)

Mother’s IAC claim is merely an attempt to raise a claim that should have been 

raised in a writ petition or at the 18-month review hearing. Mother complains that her

counsel was not prepared for the hearing and did not protect her rights. She insists that 

counsel did not read the updated report from Mother’s therapist and was not prepared at 

the review hearings. 

Initially, if Mother had been concerned at the 18-month review hearing that her 

trial counsel was not pursuing her interests, she could have asked for new counsel. (See 

In re V.V. (2010) 188 Cal.App.4th 392, 398 [juvenile courts allow “parents, who have a 

statutory and a due process right to competent counsel, to air their complaints about 

appointed counsel and request new counsel be appointed”].) Mother remained silent 

regarding her counsel at the 18-month review hearing and did not attend the 12-month 

review hearing the following day for E.C. Mother expressed no concern with her 

counsel’s performance at the review hearings.

Further, Mother’s claim that counsel was not prepared and did not review the 

record is not supported by the record on appeal. Mother acknowledges that the 

Department provided the final therapist’s report to the juvenile court on October 28, 

2019, in which it was reported that Mother had attended all of her therapy sessions and 

was making good progress and her “behavior and insight have been remarkable.” At the 

18-month review hearing, Mother’s counsel vigorously argued that Mother had 
30

completed all of her case plan, including her therapy, which warranted return of the 

Children to her care. The Department had submitted Mother’s therapist’s report to the 

juvenile court on October 28, 2019, and it was considered by the juvenile court and 

Mother’s counsel. 

Based on the foregoing, Mother has failed to establish that she falls outside the 

waiver rule as she cannot establish the review hearings were fundamentally unfair. As 

such, she cannot raise any claims that the juvenile court’s rulings at the 12- and 18-month 

review hearings for E.C. and the older siblings were not supported by the evidence or that 

she did not receive reasonable visitation. Mother raises no claims as to the section 

366.26 hearing. The juvenile court order establishing a legal guardianship for E.C. and 

the older siblings with paternal grandparents is upheld on appeal. 

DISPOSITION

The juvenile court’s order appointing paternal grandparents as legal guardians of 

the Children is affirmed. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

J.

We concur:

McKINSTER

Acting P. J.

MENETREZ

J.