Michael N. v. Super. Ct.
Filed 8/2/07 Michael N. v. Super. Ct. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MICHAEL N., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES et al., Real Parties in Interest. | No. B199273 (Super. Ct. No. CK58140) |
ORIGINAL PROCEEDINGS in mandate. Debra L. Losnick, Commissioner. Petition denied.
Michael N., in pro. per., for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Aileen Wong, Associate County Counsel for Real Party in Interest Los Angeles County Department of Children and Family Services.
Childrens Law Center of Los Angeles and Carol M. Chacon for Minor.
By petition for writ of mandate, father Michael N. challenges the juvenile court order terminating reunification services, and setting a permanency planning hearing. We deny the requested relief.
FACTUAL AND PROCEDURAL SUMMARY
In February 2005, the Department of Children and Family Services (Department) detained two-year-old Aaron and his younger sister Sarah[1]and filed a Welfare and Institutions Code section 300[2]petition on their behalf. The Department alleged that mother left the children at home without adequate adult supervision and failed to provide them with basic necessities. (Mother is not a party to this appeal, and we limit the factual summary with regard to her accordingly.)
Father was in prison for grand theft at the time the children were detained. He was released from prison three weeks before the scheduled April 27, 2005 jurisdictional hearing. He contacted the Department upon his release indicating his interest in the children. Father appeared at the hearing, was declared the presumed father, and was ordered to attend approved programs for drug rehabilitation with random testing, parent education, and individual counseling. The court ordered monitored visitation for both parents.
The children were adjudicated dependents on June 30, 2005, and remained placed in foster care. The court ordered monitored visitation for both parents, and father was ordered to attend counseling, including parenting. Father failed to contact the Department between the June 2005 hearing and the December 2006 review hearing. He provided no information to the social worker about his compliance with court orders, nor did he visit the children. The social workers December 21, 2006 report indicated that father was on parole with the Compton Parole Unit. He had violated his parole with possession of a firearm, but was expected to be released by August 2007 if he complied with the conditions of his parole.
In January 2007, father filed a section 388 petition for a change of court order. He asked that the court not terminate family reunification services, so that he would have the time and opportunity to abide and participate in the courts recommendations. I want to be a positive force in my childrens lives. Attached to the motion was a letter from Phoenix House Venice, indicating father had been in the residential substance abuse program since September 18, 2006. According to the letter, as part of his treatment, father attends various educational seminars addressing anger management, relapse prevention, errors in thinking, and other issues. The petition was denied without a hearing, on the ground that these issues would be addressed at the permanency planning hearing.
The 18-month review hearing was held on May 8, 2007. Father did not appear, but was represented by counsel. The court found the parents were not in compliance, terminated reunification services, and set the matter for a permanency planning hearing. Father filed this petition for writ of mandate, challenging the order.
DISCUSSION
I
Father claims the May 8, 2007 minute order states that he was in compliance with his case plan. He is correctthe minute order states: The Court finds the father is in compliance with the case plan. But the reporters transcript of that hearing shows the court expressly found: Parents are not in compliance with the case plan. Conflicts between the reporters and clerks transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporters transcript unless the particular circumstances dictate otherwise. (In re Merrick V. (2004) 122 Cal.App.4th 235, 249.) There was no evidence before the court that father had completed parenting counseling, as ordered by the court. Nor was there evidence that father had visited with his son. Under these circumstances, we resolve the conflict between the reporters transcript and the clerks transcript in favor of the courts finding in the reporters transcript that the parents were not in compliance with the case plan.
II
Father also claims that before the May 8, 2007 hearing, his court appointed attorney suggested that he would request visitation and continuance on reunification with Aaron. Father asserts that according to the minute order, his attorney did not make these requests. This is essentially a claim that he received ineffective assistance of counsel.
To establish ineffective assistance of counsel, a party must demonstrate that counsels representation fell below an objective standard of reasonableness, or that there is a reasonable probability that in the absence of the claimed errors, a different result would have occurred. (See In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.)
Again, the reporters transcript provides the answer. Counsel for mother appeared on behalf of father. On behalf of both parents, she requested a continuance, and objected to the termination of reunification services. The court denied both requests.
But even if the requests could have been presented to the court differently, father cannot establish a reasonable probability that a different result would have been obtained. Father was not in compliance with the order for parenting counseling, and he failed to visit with Aaron during the nearly two years of dependency jurisdiction. On this record, father cannot demonstrate a reasonable possibility that the court would have granted the requested extension of reunification services.
DISPOSITION
The petition is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.
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[1] DNA testing in 2007 indicated that Michael N. is not the biological father of Sarah.
[2] All statutory references are to this code.
