In re T.W.

Filed 3/6/08 In re T.W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed.

ORIGINAL PROCEEDING: Petition for writ of habeas corpus. Christian F. Thierbach, Judge. Petition Denied.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.

Defendant and Appellant Royce W. (Royce)^[1]is the father of six-year-old T.W. Royce appeals from an order terminating his parental rights as to this child pursuant to Welfare and Institutions Code section 366.26.^[2]

In his appeal, Royce contends (1) the juvenile court abused its discretion in denying his request for substitute counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) the juvenile court erred in granting his motion to represent himself under Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L. Ed.2d 562] (Faretta); (3) the juvenile court abused its discretion in failing to conduct a full and fair evidentiary hearing on his section 388 petition; (4) there was insufficient evidence to sustain the juvenile courts order terminating his parental rights, as the adoption assessment report was inadequate; (5) the juvenile court erred in finding that the beneficial relationship exception under former section 366.26, subdivision (c)(1)(A) did not apply to render termination of parental rights detrimental to the child; and (6) the juvenile court erred in finding that the sibling relationship exception under former section 366.26, subdivision (c)(1)(E) did not apply.^[3] As explained below, we reject these contentions and affirm the judgment.

In his petition for writ of habeas corpus, Royce claims his counsel was ineffective during the entire dependency proceedings and therefore claims certain orders of the juvenile court should be reversed. We reject this contention and deny Royces writ of habeas corpus petition.

I

FACTUAL AND PROCEDURAL BACKGROUND^[4]

Royce and Claudia W. were the parents of two sons, J.W. and T.W. In addition, Claudia is the mother and Royce the stepfather of a daughter, Tabitha W. Claudia and Tabitha are Indonesian.

The Riverside County Department of Public Social Services (DPSS) became involved with the family on December 11, 2005, when law enforcement responded to a report that J.W. was missing. J.W., then age 5, was subsequently found deceased in a neighbors swimming pool. Police requested DPSS to respond to the family home. A detective reported that J.W. had been diagnosed with Sotos syndrome, which he believed to be a form of gigantism, and had a history of escaping from the home. The child had been developmentally impeded. Blood was found in J.W.s anus, which could have resulted from the drowning, but anal tearing was also possibly present. The detective also informed the social worker that Tabitha had a large bruise on the left side of her head that the parents could not explain, other than stating that possibly her deceased brother had done it, and for which she had received no medical treatment.

The social worker observed the home to be unkempt and filthy with the kitchen covered in dirty dishes and trash, clothing and debris everywhere, and a foul odor. Tabithas room smelled of urine and feces. When the social worker attempted to interview T.W. she found that he had minimal communication skills and could not provide any information about his parents, his siblings or himself. He was wearing a diaper and did not appear to have any injuries. The chaplain who responded that morning indicated that T.W. fondled the chaplains groin area while he was in the home and that the parents showed no response to the childs behavior. Claudia, the mother of the children,^[5]told the social worker that Tabitha did not speak English, but she offered to translate. The child had been born in Indonesia and had been staying with her family there. While in Indonesia, Tabitha had been involved in a fire that claimed the lives of her two siblings and had also been sexually abused by one of her cousins. Claudia could not explain why Tabitha could not speak English after having been in this country for two years. The child had not been sent to school and reportedly exhibited odd behaviors such as going to the bathroom in the middle of the floor and keeping her feces in plastic zipper bags in her room. The mother could not explain this behavior either. Tabitha also had tantrums. The social worker observed that Tabitha had a significant injury to the left side of her head, marks on her neck and bruising in her ear, which the parents could not explain and had not sought treatment for. The child could not be interviewed because she was nonresponsive, as she had reportedly been all day.

Royce, the biological father of J.W. and T.W., stated that he had medical and life insurance for his family through his employer. He identified a clinic where the children were seen for their medical needs. He last saw J.W. at 6:00 a.m. when Royce went to bed. He reported that because of J.W.s propensity to get out of the house, he had put locks on every window and exit from the house and yard. (The fence enclosing the rear yard was in disrepair, however.) He had observed J.W. and Tabitha fighting, and he believed J.W. hit his sister with a plastic baseball bat. He described J.W. as having been extremely aggressive, with excessive strength because of his disorder, which also made it hard for him to communicate and gave him poor impulse control.

Claudia stayed home with the children. She disciplined the boys by placing them in front of the television with the remote control until they calmed down, then they were allowed to return to what they had been doing. However, because Tabitha had behavioral problems she got spankings on the buttocks. Royce confirmed that they mostly used time outs for discipline but had spanked Tabitha for stealing and biting and had also spanked the boys. The parents and children were calm as the children were removed from the home. As soon as she was out of the house, Tabitha spoke to the social worker in English, asking her to drive by the house with pretty lights and telling her that J.W. had hit her with a baseball bat, but that J.W. was dead, like rubber. At the police station Tabitha began to cry and mumbled rapidly about the days events, reporting that J.W. had hurt her ear. She stated that he got out of their bedroom window and out of the fence. Tabitha and T.W. were observed to be aggressive with each other in play and were silly when it was time to use the restroom. They were placed together in a foster home.

DPSS e-mailed photographs of Tabithas injury to a doctor, who requested that she be brought in for assessment immediately. At the emergency room, Tabitha refused to get out of the car, and medical staff had to remove her. She was hysterical and punched two adults. She was speaking in full English sentences. It was determined that she would be admitted to the hospital, and she was given a sedative.

A medical report dated December 12, 2005, indicated that Tabitha, despite Claudias report that the child did not speak English, had spoken fluently while at the hospital. She was found to have a large area on the left side of her skull with red, blue, and yellow bruising. The left ear was also bruised, as were the back of the head near the hairline, the area behind the right ear, the left side of the neck extending toward the chest, and the left upper arm. Her left skull was possibly fractured. Her hair was thin and of multiple lengths. She had several teeth with cavities and a healing red area at the upper frenulum. This was later described as a tear of the tissue under the upper lip next to the gum line, which would have bled profusely. She had several circular scars as well as a four centimeter linear train track scar on her back. She also had circular scars on her right forearm and left thigh. The doctor concluded that the scalp bruise was not consistent with having been hit with a plastic bat. There was an impact site on the left ear and skull. Some of her wounds were consistent with severe hair pulling, which might also have caused the neck bruising. However, that bruise was also consistent with strangling or another impact. The bruising on the arm could also have been inflicted. The circular scars were consistent with bite marks, and the linear scar on her back was consistent with an inflicted injury. The doctor opined that Tabitha had been severely traumatized, psychologically and physically, such that extensive and comprehensive counseling was strongly recommended, and that children left in the same environment where the abuse occurred are at risk of further injury including death. X-rays revealed that Tabitha had a healing midshaft fracture in her right arm, which would have been very painful such that Tabitha would not have used her arm. The doctor also opined that the burn scar patterns, which were being reviewed, may not be consistent with burns obtained in a house fire and may also have been inflicted.

DPSS filed a petition under section 300 on December 13, 2005, as to Tabitha, then age 7, and her half brother, T.W., then age 4. DPSS alleged that Tabitha came under section 300, subdivisions (a), (b), (f), and (g) and that T.W. came under section 300, subdivisions (b), (f), and (j).

On December 14, 2005, the juvenile court found that a prima facie showing had been made that the children came within section 300, subdivisions (a), (b), (f), (g), and (j) and ordered that they remain removed from the home pending a jurisdictional hearing, which was set for January 9, 2006. At that time Royces attorney reported that Royce was not interested in visiting or reunifying with Tabitha. Reunification services were nevertheless ordered pending that hearing; supervised visitation was to be as directed by DPSS as to T.W., but visitation was suspended as to Tabitha.

An addendum report filed by DPSS on January 5, 2006, requested a four-week continuance to allow for further evaluation and assessment since the case had been delayed due to cooperation with a law enforcement investigation. The juvenile court granted the continuance and set the jurisdictional hearing for February 1, 2006. The parents requested visitation, and supervised visitation with both children was ordered as directed by DPSS.

The jurisdictional/dispositional report was filed on January 30, 2006. DPSS recommended that services be denied to both parents pursuant to section 361.5 subdivisions (b)(4) and (6).

In that report, DPSS reported that Tabitha had been nonverbal during a Riverside Child Assessment Team interview as well as with the social worker and refused to make eye contact. The exception was that, when asked about her parents, she blurted out a loud No and exited the [interview] room. T.W. was unable to provide any pertinent information regarding the investigation.

Claudia had been cooperative during her interview. She reported that Tabitha was not in school because of her behavior problems, consisting of urinating on her bed and pillows, in her little kitty bag, and on her brothers stuffed toys; keeping her feces in plastic zipper bags and calling it chocolate; and keeping dirty food dishes hidden in the futon in her room. Tabitha told Claudia that her grandmother told her how to do these things. Claudia did not know about the bruise on Tabithas head because the child only came out of her room when everyone was asleep, including to eat. She bathed and dressed herself and always wore long sleeves and long pants. Claudia claimed that she never saw the child and asked then how she would notice the bruise.

About five months prior to J.W.s death, Tabitha told Claudia that she had been sexually abused, but Claudia was not sure it had occurred because the child always changes the story. Claudia did not know how to get help for Tabithas behavioral problems or her emotional trauma from having been a rape victim and having been in a house fire where her two brothers perished. She was told by family and friends to try putting the child in a foster home or in a mental institution. They did not have much money, and she did not know the American way of doing things. Claudia admitted leaving Tabitha in the car when she took J.W. and T.W. to the doctor, and despite the doctors recommendation that she call the number on the insurance card regarding getting help for Tabitha, she did not because she was unaware that Tabitha could speak English. Claudia repeated that she did not send Tabitha to school because of her behavioral problems. She also said that the children did not go to school because she did not know how to use the bus, her husband was too tired to take them, and they didnt have a babysitter.

Claudia stated that when the social worker was there the house was dirty because she had not yet gotten around to doing the cleaning and housework on her schedule and because the sink was messed up because she had put rice in it. Royce told her to take everything out of the sink, and he would fix it the next day.

Regarding J.W.s death, Claudia stated that Royce came home at 2:00 a.m., and she was asleep in the living room. Royce played with T.W. and J.W., tried to fix the sink, and watched a movie. He then woke Claudia up so he could go to sleep. At 6:30 a.m. J.W. said mommy go night-night so she lay down with him, but he did not want to sleep. At 7:50 a.m., T. W. woke her and told her J.W. was outside. She thought everything was locked and began to look for J.W. T.W. pointed to Tabithas room, where the window was open. Tabitha told her J.W. was out. Claudia searched the neighborhood and could not find J.W., so she came home and woke Royce, who also could not find J.W. and told her to call 911. T.W. then told her that Tabitha took J.W. out and told him to go back home.

Royce was also cooperative with DPSS during his interview. He too claimed not to have seen Tabithas head injury but stated that Claudia was aware of it and told him, after J.W.s death, that she had seen J.W. hit Tabitha with a wash wand several times, but there was no bruising. Royce offered that when he first saw the bruising he indicated to the police that it appeared to have the same pattern as the wash wand, which was against the wall in the back yard. He stated that he did not see the bruising and suggested that maybe it wasnt there when he last saw her since bruising doesnt happen right away. He also suggested that there had been no bruising on the back of her neck so that might have happened when she struggled with hospital staff. Royce had seen circular scars on Tabithas back once but believed them to be from the fire. He also explained that Tabitha covered herself up, maybe because of her scars from the fire, and stated that he tended to steer clear of Tabitha, more so once Claudia told him of the sexual abuse. He really didnt want to have anything to do with her so as not to further traumatize her. He also reported that Tabitha would urinate and defecate on the floor. Claudia told him that Tabitha said she could not wake up at night so they put her on a pallet by the bathroom door but she would still go on the floor. When Claudia made her clean up after herself she shoved her feces down the sink. He again stated that he did not want to push the issue with Tabitha who shied away from him, so he did not have much contact with her. The children did not go to school because T.W. was not old enough and Tabitha had behavioral issues. T.W. was very talkative with Royce but quiet around others. Royce called his insurance regarding getting help for Tabitha, but he did not know that she could speak English, as she never did at home. As there was no Indonesian therapist to whom they could send her, they were contemplating sending her to a boarding school in Indonesia so she could get help. They were not getting any good suggestions and did not know where to go for help with her. He stated that the foul odor in the house was from Tabitha urinating and defecating everywhere. The dishes could not be done because Claudia had plugged up the sink with a pot of rice. He told her to empty everything out from below the sink so he could repair it the next day. He tried that night when he got home but was unable to and then went to watch a movie. Both boys were up with him through the night. Claudia had also told him that the children had broken a board in the fence, but he couldnt repair it because he had to go to work.

Regarding J.W.s death, he stated that he had placed extra locks in the house; had they caged the child to keep him safe, they would have been in trouble. He did not know how Tabitha had gotten the lock off of her window, as he had tightened it down so tightly with pliers that he could not get it off and had placed a large dresser in front of it, which the children could not move. He believed that Tabitha had gotten the lock off because T.W. told Claudia that Tabitha got the window open and helped J.W. out. He and Claudia believe that Tabitha took J.W. outside and came back in. Two neighbors told them that they had seen J.W. at about the same time T.W. woke Claudia to tell her J.W. was gone.

Tabitha was placed in a psychiatric hospital. While initially uncommunicative and displaying selective muteism and fits of rage, she had begun to open up to certain staff. In her counseling Tabitha disclosed that both she and her brother had been spanked with a belt, that her head had been held on the floor, that her hair was pulled, and that her mother had bitten her. She showed no signs of the reported toileting issues and used English in an age-appropriate manner. She had poor eye contact and sometimes reverted to muteism; she had tantrums and threw things or otherwise acted out but showed improvement over time and with interaction such that she was discharged after 10 days. While she missed her parents, she did not want to return to her family.

An odontologist concluded that the bites Tabitha sustained were inflicted within weeks or days of the pictures being taken and were consistent with an adult bite pattern.

Tabitha had not been seen by a doctor or dentist since coming to the United States, some 16 months prior to removal from the home. Some of her developmental skills were delayed, though that may be the result of her mental and emotional issues. Tabitha had been placed in school and was excited and adjusting well, talking about her friends and experiences. No behavior issues had yet been noted by the school. She continued to have nightmares and difficulty sleeping, appeared fearful of adults, and had difficulty forming relationships. She was diagnosed with posttraumatic stress and major depression.

T.W. had last been seen by a doctor in September 2005 and was current on his vaccinations. However, he was also developmentally delayed, as he was not yet toilet trained, had a limited vocabulary, and had limited comprehension skills. He had not displayed any mental or emotional issues.

DPSS concluded that it would be detrimental to the children to leave them in the care of their parents as their inability to ensure the safety and well-being of the children was demonstrated by J.W.s death and Tabithas condition. It recommended that the parents be denied reunification services because of J.W.s death and Tabithas condition. It also recommended closely supervised visitation once per month.

The parents denied the allegations and attempted to provide an explanation for the behaviors that DPSS indicated were inappropriate on their part. They also asserted that some of the information provided by DPSS was erroneous and had been the result of language barriers. They insisted that Tabithas injuries were either old, having been inflicted in Indonesia, or had been inflicted by her brother J.W. with a wash wand, not a baseball bat, and that she had never spoken English to them. They asserted that they had done everything that they could to prevent J.W.s escape from the house and had not been negligent in his death.

At the February 1, 2006, hearing, counsel for Royce argued that the parents had taken Tabitha to a physician regarding her toileting issues, but the doctor refused to see her because the problem seemed to be a psychological issue. Finding a therapist was difficult because of the language issue and they were trying to send her back to Indonesia. Tabitha had been told bad things about her mother by her family in Indonesia and did not interact with her mother or behave as part of the family when she arrived here, including failing to communicate her needs and wants. At that time she was five years old. J.W. had received services from the State of California through Inland Regional Center until he was three years old, so the parents claimed they had been caring for his needs. While making additional findings, the juvenile court also set a hearing under section 366.26 to be heard on June 1, 2006.

At a hearing on February 1, 2006, the juvenile court found the allegations true that the children came within section 300, subdivisions (a), (b), (f), and (g) and adjudged them dependents of the court. It made findings under section 361, subdivisions (a) and (c)(1) and (3). It also ordered that no services would be provided to either parent under section 361.5, subdivision (b)(4) and (6) and ordered adoption as the permanency plan. The juvenile court further found that visitation between the children and their parents was detrimental to their well-being and suspended the visitation order. It then set a hearing under section 366.26 to be heard on June 1, 2006.

Royce and Claudia subsequently sought review of the juvenile courts rulings by appealing the courts decision to deny them visitation with Tabitha and T.W. They also each filed a petition for writ of mandate to overturn certain orders of the juvenile court. On October 3, 2006, in a decision certified for partial publication, this court dismissed the appeals as improperly taken from an order made at a hearing in which a section 366.26 hearing was set. (In re Tabitha W., supra, 143 Cal.App.4th at p. 813.) We also denied the petitions for writ of mandate, finding that the juvenile court had made required findings, that there was substantial evidence to support the juvenile courts findings, and that there was no abuse of discretion. (Ibid.)

DPSS filed a section 366.26 report on May 16, 2006, noting Tabitha and T.W. were developing well in their respective foster homes. Tabitha had established a close bond with her foster parents and their children and had expressed her needs and wishes to them. She enjoyed family outings, bike riding, and playing with dolls. The foster family had been working with Tabitha on improving her social skills and interactions in the home. Tabitha was in the third grade and enjoyed reading and math. She completed her daily homework with little assistance. T.W. was a friendly boy, who said many words and did not appear to be shy. He did not receive any psychological assistance; the only concerns the foster parents noted were with T.W.s communication and comprehension. The children had done very well in their foster homes and had all their medical, emotional, and physical needs met. The prospective adoptive parents had been visiting with the children and had expressed a desire to adopt both children and to provide them with a stable, structured, and loving home. Tabitha enjoyed being with the prospective adoptive parents, and the adoptive parents were willing to allow Tabitha to move into their home at her own pace. T.W., on the other hand, had no apprehensions of being adopted and had already claimed a room in the prospective adoptive parents home. T.W. was scheduled to move into the home on May 13, 2006.

On June 21, 2006, the juvenile court granted the childrens counsels request that Tabitha not be moved from her current foster placement without a court order. Though Tabitha enjoyed visiting with the prospective adoptive parents and her sibling, she was not emotionally ready for the move and desired to remain with her foster parents.

On September 19, 2006, Royce filed a section 388 petition to modify the court orders in T.W.s case. The petition alleged that Royce had new evidence to show the allegations in the section 300 petition were untrue, including photographs of Tabithas arm in a cast while she lived in Indonesia, video footage from the fire in Indonesia, Royces completion of a parenting class, and his efforts to set up therapy for Tabitha. Royce claimed the modifications would be in T.W.s best interest as Royce had a bond with his son, he had provided care and support for T.W., and they had a parent-child relationship. The juvenile court summarily denied Royces petition without an evidentiary hearing on that same day.

On September 22, 2006, DPSS noted that Tabitha did not want to be adopted. She felt comfortable with her foster mother and wanted to stay with her as long as possible. DPSS therefore changed its recommendation for Tabitha from adoption to a permanent planned living arrangement. T.W., on the other hand, was doing very well in his adoptive home and appeared bonded to his adoptive parents.

At a hearing on October 2, 2006, the parents were not present in court. Royce had been present earlier, but his trial counsel told him to leave and assured him that she would request visitation with T.W. The court denied Royces request for visitation.

On March 14, 2007, Royce filed another section 388 petition in propria persona along with numerous supporting documents. The petition erroneously alleged that his parental rights to his son were terminated on February 1, 2006. The petition also alleged that Royce had received ineffective assistance of counsel, and his due process and equal protection rights had been violated. The petition requested that the case be dismissed, reunification services be provided, or a new trial be conducted. Royce claimed he was a good father, T.W. was a great son, and there was no reason why T.W. should not be returned to him. Royce wanted T.W. to live with Claudias aunt until Royce got his old job back and was able to support his son.

At a section 366.26 hearing on March 15, 2007, the parents were both present in court. Royce requested a Marsden hearing, claiming his attorney was ineffective for failing to conduct an investigation or present evidence at his trial to rebut the allegations against him. Following Royces and his counsels arguments, the court found that Royce had been provided with competent representation and that there was no conflict of interest and denied Royces request for new counsel. However, at Royces insistence, the court permitted Royce to represent himself and relieved his trial counsel. The hearing was subsequently continued to obtain an Indonesian interpreter for Claudia.

On March 19, 2007, Claudia filed a section 388 petition along with the same supporting documents as Royces petition. She erroneously claimed that parental rights as to Tabitha and T.W. had been terminated on February 2, 2006.

The continued contested section 366.26 hearing and the hearing on the section 388 petitions were held on March 22, 2007. Royce appeared in propria persona. The court summarily denied the parents section 388 petitions.

The court then proceeded with the contested section 366.26 hearing and heard testimony from Claudia and Royce as well as argument from counsel. The court noted that it had read the reports submitted by DPSS as well as this courts opinion in the parents prior appeals. The court found that T.W. was likely to be adopted and terminated parental rights as to him. As to Tabitha, the court ordered a permanent planned living arrangement and noted that sibling relationships had been maintained under section 16002.

On March 28, 2007, Royce filed his notice of appeal. About seven months later, following submission of appellate briefs, Royce filed a petition for writ of habeas corpus, claiming he had received ineffective assistance of counsel.

II

DISCUSSION

A. Denial of Marsden Motion

Royce argues the juvenile court abused its discretion in denying his Marsden request for new counsel, contending he had demonstrated that his trial counsel provided inadequate performance and that there were irreconcilable conflicts in their relationship, rendering counsels performance ineffective.

The juvenile court addressed both Royces Marsden motion and Faretta motion at the hearing on March 15, 2007. With respect to the Marsden motion, Royce complained that counsel had failed to conduct any investigation regarding the allegations against him, had failed to cross-examine the witnesses upon whose statements DPSS had relied to support the section 300 petitions, had failed to present exculpatory evidence showing the allegations were false, had failed to present evidence showing that he was not negligent in J.W.s death, and had failed to consult him prior to the jurisdictional/dispositional hearing. The court followed up with questions to Royce about his concerns.

Counsel responded to Royces complaints, noting Royces anger and agreeing with his feelings in the outcome of the case. She stated that she had spent time with Royce reviewing the case and explaining everything to him; that she had returned Royces phone calls and spoken to him about the case at length; that she had met Royce at court every single hearing; that she had responded to Royces letters in writing; that she had submitted Royces written responses to the social workers reports and allegations to the court; that she had explained the ramifications of his testifying with a pending criminal case; that she had informed him that since he had actually responded to the social workers reports in writing, she would argue the case and submit; and that he was understandably upset that he lost at the trial court and appellate levels. Counsel further asserted that she believed there had been a breakdown in the relationship and that Royce had told her that he was going to be asking the court for self-representation.

Royce thereafter responded to counsels statements, claiming that counsel only spoke to him briefly and that he had no time to prepare a defense or consult with counsel or argue any defense with her; he admitted that counsel had responded to his letters. Royce also asserted that he had not received a fair trial, noting the allegedly erroneous burden of proof and the evidence in the case. Royce further noted that he wanted to represent himself, despite everyone advising him against it.

The court denied Royces Marsden motion, noting though there was a conflict, it was not so great to deny [Royce] effective assistance of counsel. The court further pointed out that in reviewing the entire file, counsel had done more than a competent job and that the court was very impressed by the representation of all the attorneys on the contract. The court concluded that Royce had received very competent representation although it understood that Royce was totally unhappy with the results.

Parents in dependency cases have a statutory right to competent counsel under section 317.5, subdivision (a). In addition, the principles set forth in Marsden, supra, 2 Cal.3d 118, have been held applicable to juvenile dependency cases. (In re Ann S. (1982) 137 Cal.App.3d 148, 150.)

The requirements of Marsden have been explained, in the context of criminal proceedings, by our Supreme Court: When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]. (People v. Crandell (1988) 46 Cal.3d 833, 854, abrogated on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) The trial courts denial of a request for substitution of counsel is reviewed under the abuse of discretion standard. (Crandell, at p. 859; Marsden, supra, 2 Cal.3d at p. 124.)

In the present case, Royce was given the opportunity to express his concerns in detail, and counsel responded in detail. Based on the record, we believe that the juvenile court reasonably found that counsels representation had been adequate and that counsel had worked diligently on behalf of Royce. Most of Royces complaints involved tactical decisions, which did not justify substitution of counsel. That is because, as our Supreme Court has stated in the context of criminal proceedings, [a] defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an irreconcilable conflict. When a defendant chooses to be represented by professional counsel, that counsel is captain of the ship and can make all but a few fundamental decisions for the defendant. [Citation.] (People v. Welch (1999) 20 Cal.4th 701, 728-729.)

In addition, Royces dissatisfaction with his counsel was primarily due to his frustration with the outcome of the jurisdictional/dispositional hearing, which likewise did not justify substitute counsel. Though the court was empathetic with Royces aggravation concerning the rulings made at the jurisdictional/dispositional hearing, the court did not agree with Royces assertion that counsel acted in an incompetent manner, but instead found that counsel behaved in a professional manner. It is apparent that any animosity was on Royces part mainly due to the rulings made by the court. There is nothing in the record to suggest that counsel failed to investigate the allegations in the section 300 petition, that counsel failed to communicate with Royce prior to the jurisdictional/dispositional hearing, or that counsel failed to zealously advocate on his behalf. Royces anger at DPSS or the ruling made by the court and the resulting discord does not demonstrate an irreconcilable conflict that would require the trial court to replace appointed counsel. (People v. Michaels (2002) 28 Cal.4th 486, 523.) As the Supreme Court explained, again in the criminal context: [I]f a defendants claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment . . . . [Citations.] (Ibid.)

Here, the court reasonably found that counsels representation was adequate and that it was Royces unhappiness with the orders made at the jurisdictional/dispositional hearing that was resulting in a conflict between Royce and his counsel. We find there was no abuse of discretion in the juvenile courts denial of Royces motion for substitution of counsel. The court fully explored the basis for the motion and reasonably concluded that substitution was not warranted. (See People v. Crandell, supra, 46 Cal.3d at p. 859.)

B. Granting ofRoyces Motion for Self-Representation

Royce contends the court improperly granted his motion for self-representation. A criminal defendant has a federal constitutional right to represent himself. (Faretta, supra, 422 U.S. 806.) In juvenile dependency cases, there is a statutory, rather than constitutional, right to self-representation. (In re Angel W. (2001) 93 Cal.App.4th 1074, 1082; see 317, subd. (b) [mandating appointment of counsel for indigent parent or guardian unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section].) Thus, [a] parent may waive counsel at any point, and the court must respect the right of the parent to represent him- or herself as a matter of individual autonomy and avoid forcing the mentally competent parent to proceed with appointed counsel in the guise of protecting a person who is unskilled in the law and courtroom procedure. (Angel W., at pp. 1083-1084.) Because the right is statutory, rather than constitutional, our review of the assertion of the right to self-representation is evaluated under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. Under that standard, we ascertain whether it appears reasonably probable a result more favorable to Royce would have been obtained had his requests for self-representation been denied.

To comply with section 317, subdivision (b), the court must take a waiver of the right to counsel, but [t]here is no requirement . . . that the court engage in a full Faretta‑type admonition and inquiry . . . . (In re Angel W., supra,93 Cal.App.4th at p. 1084.) If the juvenile court has made the parent aware of the dangers and disadvantages of self-representation and the risks and complexities of his or her particular case, a waiver of counsel is valid. (In re Brian R. (1991) 2 Cal.App.4th 904, 921.)

Here, the juvenile court did not err in permitting Royce to represent himself. By thoroughly explaining the risks of self-representation, the court ensured that Royce was aware of the dangers and disadvantages of self-representation before accepting his waiver of the right to counsel. The court explained that he needed to understand that he was going to be held to the same standards of professionalism as a lawyer would be. In other words, the court told Royce that he would have to follow the law and rules of evidence in order to act as his own attorney. After explaining the ramifications of self-representation, the court asked Royce, Is it your desire to represent yourself? Royce replied, It is. Moreover, the record reveals that Royce was comfortable speaking with the judge and that he had knowledge of the legal issues involved in the case. In addition, he was advised against proceeding pro se more than once.

Royce relies on People v. Lopez (1977) 71 Cal.App.3d 568 to claim his waiver of his right to counsel was not knowing and intelligent because the court failed to give the advisements articulated in Lopez. In Lopez, the court suggested that the trial court should give warnings that self-representation is almost always unwise and that the defendant may conduct a defense to his own detriment; that the defendant will have to abide by the same rules as lawyers and will get no help from the judge; that the People will be represented by experienced professional counsel who will have the advantage of skill, training, and ability; and that the defendant will have no special library privileges nor a staff of investigators at his beck and call. (Id. at pp. 572-573.) The Lopez court further proposed that the defendant be made aware that he cannot later complain that his self-representation was inadequate. (Id. at p. 574.)

The courts have declined to mandate the Lopez admonitions and have instead held that no particular warnings are required. [T]he attempt to characterize as error the failure to warn in such exact language begs the question. The real task which confronts the trial court, when a defendant insists on proceeding without counsel, is to do whatever the circumstances then and there require to satisfy itself that the defendant in so doing has made a knowing and intelligent election. (People v. Barlow (1980) 103 Cal.App.3d 351, 365; see also People v. Mellor (1984) 161 Cal.App.3d 32, 37; People v. Longwith (1981) 125 Cal.App.3d 400, 407; People v. Paradise (1980) 108 Cal.App.3d 364, 366.)

The California Supreme Court has held that [t]he test of a valid waiver of counsel is not whether specific warnings or advisements were given but whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case. (People v. Bloom (1989) 48 Cal.3d 1194, 1225 [no warning required that self-represented defendant is precluded from asserting ineffective assistance of counsel]; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1048 [[n]o particular form of words is required], revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293; People v. Pinholster (1992) 1 Cal.4th 865, 928-929 [[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required].) It is true that a trial courts complete failure to make any inquiry into the defendants understanding of the risks and dangers of self-representation constitutes error. (People v. Noriega (1997) 59 Cal.App.4th 311, 319-321; People v. Sohrab (1997) 59 Cal.App.4th 89, 102.) But that is not the case here, as explained above.

Royce also argues that his request for self-representation was made out of frustration and disappointment and was prompted by the denial of his Marsden motion, rather than being unequivocal. Though the record shows that Royce was upset with his trial counsels performance and the courts rulings, there is nothing in the record to suggest that his Faretta motion was not made unequivocally.

In People v. Marshall (1997) 15 Cal.4th 1, the California Supreme Court examined the propriety of a denial of a defendants requests for self-representation in the context of criminal proceedings. The high court held that [a] motion for self-representation made in passing anger or frustration, an ambivalent motion, or one made for the purpose of delay or to frustrate the orderly administration of justice may be denied. (Id. at p. 23.) On the record before it, the high court found that the defendants requests did not represent an unequivocal and sincere invocation of the right of self-representation, and that they were made for the purpose of delay rather than a sincere effort to secure self-representation. (Id. at p. 27.)

Unlike the record in Marshall, there is nothing in the record in this case to support a claim that Royces request was equivocal, was made on a whim, or was otherwise asserted for the purpose of delay or frustration of the orderly administration of justice. Although a motion for self-representation made in passing anger or frustration may be denied, here, Royces anger at his trial counsel was not passing. His anger toward his trial counsel and his desire to proceed by self-representation were both present more than a week before the motion for self-representation was made. His motion was not made on a whim. Rather, it was well thought out and planned, and he was determined to represent himself because the outcome of the proceedings was not turning out in his favor. He was upset, but that did not make his Faretta request whimsical or insincere. In fact, Royces intention to proceed pro se was evident even before his Marsden request was made and denied. Royce prepared a section 388 petition on March 5, 2007, 10 days before the hearing on his Marsden and Faretta motions on March 15, 2007. He submitted this petition in propria persona because he no longer ha[d] confidence or trust in his court appointed attorney . . . orany other attorney due to the way his case has been presented to this court so far. Apparently, Royce wanted to put on his defense by himself. This decision was made more than a week before he made his Marsden motion, it was denied, and he made his Faretta request.

The cases relied by Royce are distinguishable from the present matter. (See Reese v. Nix (8th Cir.1991) 942 F.2d 1276, 1281 [defendant stated [W]ell I dont want no counsel then, but this was deemed a mere impulsive response to the trial courts denial of a request for new counsel]; Jackson v. Ylst (9th Cir.1990) 921 F.2d 882, 888-889 [a court properly may deny a request for self-representation that is a momentary caprice or the result of thinking out loud].) In Jackson, the defendant stated: I want to fight it in pro per then. Relieve him and I do this myself. (Jackson,at p. 889.) The reviewing court considered the record as a whole, including the defendants failure to assert the right of self-representation at a later hearing, and independently determined that the defendants request for self-representation was an impulsive response to the trial courts denial of his request for substitute counsel. Examining the question whether the defendant in fact wanted to represent himself, the court stated, Jacksons emotional response when disappointed by the trial courts denial of his motion for substitute counsel did not demonstrate to a reasonable certainty that he in fact wished to represent himself. (Ibid., italics omitted; see also People v. Marshall, supra, 15 Cal.4th at pp. 21-22.)

In this case, however, as explained above, Royce did not make his request for self-representation as a result of the denial of his Marsden request. Royce made more than one reference to his right to, and his wish for, self-representation, about two weeks prior to his request. In a letter from his trial counsel, she informed Royce, [Y]ou have a right to a Marsden hearing and if granted, the court would appoint another attorney to represent you. You could also hire a private attorney at your expense. Another option is that you could proceed by representing yourself. Besides conveying the options available to Royce, his trial counsel even warned him that self-representation was not the recommendable course of action. Nevertheless, in a reply letter, Royces very first sentence to his trial counsel stated, I want to proceed pro per. He even went on to explain, I . . . understand your advice is for me not to proceed pro per and your point is so noted. With that said I wish to proceed pro per anyway. (Italics added.) This reply letter is dated March 5, 2007, is 10 days before the Marsden hearing. It is clear from the record that Royce had his mind set in representing himself and that this decision was not the result of the denial of his Marsden motion. We cannot equate Royces nearly two-week long repeated requests to proceed pro se to be a litigation decision resulting from temporary whim, or out of annoyance or frustration . . . . (People v. Marshall, supra, 15 Cal.4th at p. 21.) Nor can we equate Royces two-week long self-representation quest to be one made in passing anger or frustration . . . . (Id. at p. 23.)

Based on the foregoing, the juvenile court properly granted Royces request for self-representation. We conclude that the juvenile courts exercise of discretion in granting Royces motion for self-representation is supported by the record. (See In re Angel W., supra, 93 Cal.App.4th at p. 1085.)

In any event, we find that, even if Royces request to represent himself should have been denied, we cannot reverse the orders on appeal, as it does not appear reasonably probable that a result more favorable to Royce would have been reached had he not represented himself.

The egregious nature of the abuse and/or neglect of young Tabitha and the death of J.W., as set forth in detail, ante, are undisputed.There is nothing in the record to indicate that, even had an attorney represented Royce in this matter, he could have presented evidence that Royce was not negligent in J.W.s death or that he was ignorant of Tabithas injuries such that the court would have made rulings more favorable to Royce.

C. Summary Denial of Royces Section 388 Petition

Royce next claims that the juvenile court abused its discretion when it summarily denied his section 388 petition.

Whether to conduct a hearing on a section 388 petition alleging changed circumstances or new evidence is within the juvenile courts discretion. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431.) When the juvenile court summarily denies a section 388 petition, this court reviews that decision under an abuse of discretion standard. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705.)

Section 388 authorizes a petition to modify a prior order of the juvenile court upon grounds of change of circumstance or new evidence . . . . ( 388, subd. (a).) 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. (c).)

The petition must make a prima facie showing as to both elements, change of circumstance and promotion of the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) A hearing must be held if the petition states a prima facie case, which has been analogized to a showing of probable cause. (In re Aljamie D., supra,84 Cal.App.4th at p. 432.) The petition should be liberally construed. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414.) If the petition fails to state sufficient change of circumstances or new evidence or facts showing it would be in the best interests of the child to modify the order, the petition may be denied without a hearing. (Cal. Rules of Court, Rule 5.570(d); Zachary G., at p. 808.) The juvenile court may rely on its own knowledge of the facts of the case to summarily deny a section 388 petition. (In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.)

Royce contends the juvenile court abused its discretion in summarily denying his second section 388 petition because he presented new evidence to show that the February 1, 2006, order denying him reunification services and visitation should be modified. The second section 388 petition essentially requested the same change in order as the first section 388 petition, which was filed by his trial counsel on September 18, 2006. In the first petition, as new evidence, Royces trial counsel submitted photographs of Tabithas arm in a cast, a DVD containing footage of the fire in Indonesia, a certificate showing Royces completion of a parenting class, and a statement that Royce had called a therapist many times to set up an appointment for Tabitha. Trial counsel stated that a modification would be in the best interest of T.W. because Royce has a bond with his son, [T.W.]. Prior to his removal, [Royce] provided care and support for [T.W.]. They had a parent/child relationship. The court, however, summarily denied this request, finding the facts do not support what is requested, the request does not state new evidence or a change of circumstances, and the request does not show how it will be in the best interest of the child.

Royce in propria persona submitted a second section 388 petition, signed March 5, 2007, and filed March 14, 2007, along with lengthy purported supporting documentation. He requested modification from the same February 1, 2006, court order denying him services and visitation.^[6] The petition alleged ineffective assistance of counsel as well as violations of his due process and equal protection rights. Attached to the petition was a detailed elaboration of the issues; correspondence between trial counsel and Royce; a letter from Royces pastor noting Royce to be a good father, expressing his support for the family, and stating that he had overheard Royce state to Tabitha that Royce did not know she could speak English; a letter from a doctor noting that Royce would not have had the mental capacity to have granted consent following his sons death due to sleep deprivation, stress, and grief; documentation from the State of Wisconsin Department of Health and Family Services response to a Seventh Circuit Court of Appeals decision concerning the authority of child protective services caseworkers to conduct child abuse and neglect assessments on private property; internet information on a tactical training course called Verbal Judo; information about the questionable credibility of the science of bite marks; a medical article concluding that a childs bruise cannot accurately be aged from clinical assessment, and such should be avoided in child protection proceedings; information defense attorneys should know about false allegations; letters from friends noting Royce to be a very good friend and a loving father; an early development profile on J.W. dated June 21, 2001, indicating that he had qualified for Inland Regional Center services based on a diagnosis of cerebral palsy; and a discharge summary for a hospitalization for J.W. in March 2004 diagnosing him with a right ear canal abscess and Sotos syndrome. Finally, there were four photographs attached to the petition: (1) a picture of Tabitha in Indonesia showing her scarring in January 2004, about two months after the fire; (2) a picture of the neighbors swimming pool gate J.W. presumably went through; (3) a picture of the window lock in Tabithas bedroom; and (4) a picture of the handle of the wash wand.

After review of all such documentation, the court summarily denied Royces section 388 petition because the facts do not support what is requested, the request does not state new evidence or a change of circumstances, and the request does not show how it will be in the best interest of the child.

Royce claims that the courts denial of a section 388 hearing was based on improper grounds.^[7] He claims that the court was denying the petition based on Royces mistake in stating in his petition that he was requesting a change of the courts order terminatingparental rights, when in fact it should have been a request to change the courts order denying services. However, the court had summarily denied Royces request for the reasons noted above. This court order was made on March 6, 2007, in response to Royces section 388 petition, which was received by the court on March 5, 2007, and prior to the March 15, 2007, hearing. Therefore, the juvenile court denied the petition on proper grounds.

Regardless, even if the juvenile court denied the petition on improper grounds, we are not persuaded that Royce made the requisite prima facie showing of changed circumstances or new evidence. Royce contends there was sufficient new evidence to warrant a hearing on his section 388 petition. Under all the circumstances, the court could reasonably conclude otherwise. The alleged new evidence was either redundant to the evidence already provided by his trial counsel or irrelevant to the case. Moreover, the petition contained no evidence why it would be in the best interest of the child to modify prior orders.

Additionally, as in any custody determination, a primary consideration in determining the childs best interest is the goal of assuring stability and continuity. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) When custody continues over a significant period, the childs need for continuity and stability assumes an increasingly important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. (Ibid.) Hence, one moving for a change of placement bears the burden of proof to show, by a preponderance of the evidence, that there is new evidence or that there are changed circumstances that may mean a change of placement is in the best interest of the child. (Ibid.; see 388; In re Audrey D. (1979) 100 Cal.App.3d 34, 45.)

This is a difficult burden to meet in many cases, and particularly so when, as here, reunification services have not been order