In re Nathan G.

Filed 4/12/07 In re Nathan G. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

Appeal from an order the Juvenile Court of the County of Los Angeles, D. Zeke Zeidler, Judge. Affirmed with directions.

Michael A. Salazar, under appointment by the Court of Appeal, and Oscar G., in propia persona, for Defendant and Appellant Oscar G.

No appearance by Plaintiff and Respondent.

INTRODUCTION

Oscar G. (father) appeals from the juvenile courts order terminating his parental rights and freeing his two year old son, Nathan G. (Nathan), for adoption pursuant to Welfare and Institutions Code section 366.26.[1] We appointed counsel to represent father in this appeal. After examination of the record, fathers attorney submitted a letter pursuant to In re Sade C. (1996) 13 Cal.4th 952, indicating an inability to find any arguable issues. On February 2, 2007, we advised father by letter that he had 30 days in which to submit any contentions or arguments he wished us to consider. Father submitted a letter on March 6, 2007, in which he contends that he was not adequately represented by his attorney in the juvenile court proceedings.

After independently reviewing the record, we hold that father has failed to establish his claim of ineffective assistance of counsel. We therefore affirm the juvenile courts order terminating his parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 2006, the juvenile court entered an order terminating fathers parental rights and freeing Nathan for adoption pursuant to section 366.26.[2] The record reflects that father was present in custody during the hearing on December 6, 2006, and that he was represented by the same attorney who had represented him throughout the course of the juvenile court proceedings relating to Nathan. Father did not state or imply during the hearing that he was dissatisfied with his legal representation, and the record does not reflect that he ever made such a contention during the course of the juvenile court proceedings.

In response to our February 2, 2007, letter advising him of his right to submit by brief or letter any contentions or arguments that he wished us to consider, father submitted an eight page, handwritten letter brief in which he raises for the first time a claim of ineffective assistance of counsel. According to father, his attorney would not, did not speak up for [father] in court; . . . failed to provide appropriate objections at the correct times during custody hearings; refused to speak to [fathers] family members regarding [Nathan] and the instant case (the few times that [fathers] family did attempt to speak to [his attorney] on the matter . . . , [his attorney] abruptly and rudely dismissed them); and furthermore, [his attorney] failed to adequately and appropriately inform [father] on the step-by-step process and details of the case even though [father] had asked to be so informed. All in all, [his attorney] was unconcerned about representing [father] and doubly [sic] unconcerned about the outcome of the case. In short, [his attorney] made no effort to resolve the case favorably for [father].

Fathers brief also details the progress he has made while in prison[3]including that he (i) has denounced the street gang of which he was a member; (ii) received his high school diploma; (iii) has been involved in the prisons Youth Offender Program taking courses that will assist him in enrolling in a community college when he is paroled; (iv) has attended church and Alcoholic Anonymous and Narcotic Anonymous classes; and (v) following his release from prison, will be employed and living with his grandmother in a drug and crime free environment, and enrolled in both a community college and a vocational school.

He closes his brief by acknowledging and taking responsibility for his poor choices in the past, and requesting that we consider his ineffective assistance of counsel claim and allow him visitation rights with his son [Nathan].

DISCUSSION

A. Termination of Parental Rights

The order terminating parental rights is presumed to be correct. (In re Sade C., supra, 13 Cal.4th at p. 994.) Reversal is required only if the parent raises claims of reversible error, which are supported by argument and authority on each point. (Ibid.) Under section 366.26, once the court determines a child is adoptable, it must terminate parental rights unless it finds one of the section 366.26, subdivision (c)(1) exceptions applies. [Citation.] The only exceptions to terminating parental rights are those prescribed by section 366.26, subdivision (c)(1). [Citation.] (In re Carl. R. (2005)128 Cal.App.4th 1051, 1070.)

Father does not dispute the juvenile courts findings that Nathan was adoptable and that his foster parents were willing and able to adopt him. Nor has father argued, much less established, that any of the exceptions set forth in section 366.26, subdivision (c)(1) applies. To the contrary, father admits that he made several poor choices that ultimately led to the termination of his parental rights. That he has apparently seen the error of his ways and is taking steps to turn his life around are not legal grounds for reversing the order terminating his parental rights.

B. Ineffective Assistance of Counsel

Father contends he was denied effective assistance of counsel in the juvenile court proceedings. In general, the proper way to raise a claim of ineffective assistance of counsel is by writ of habeas corpus, not appeal. [Citations.] . . . [A]n ineffective assistance claim may be reviewed on direct appeal [only] where there simply could be no satisfactory explanation for trial counsels action or inaction. [Citation.] (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, fn. 1.) Usually [t]he establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record of the trial. . . . Action taken or not taken by counsel at a trial is typically motivated by considerations not reflected in the record. . . . Evidence of the reasons for counsels tactics, and evidence of the standard of legal practice in the community as to a specific tactic, can be presented by declarations or other evidence filed with the writ petition. [Citation.] In re Arturo A. (1992) 8 Cal.App.4th 229, 243.)

Because father has not filed a habeas petition in this case, our review is limited to the appellate record. We have reviewed the entire record and conclude that father has failed to establish ineffective assistance of counsel. Where the ineffective assistance concept is applied in dependency proceedings . . . [f]irst, there must be a showing that counsels representation fell below an objective standard of reasonableness . . .  []  . . . under prevailing professional norms. [Citations.] Second, there must be a showing of prejudice, that is, [a] reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] ( In re Athena P. (2002) 103 Cal.App.4th 617, 628.) There is nothing in the record to indicate that the legal representation provided by fathers attorney fell below prevailing professional standards. Father has not stated what specific actions by his attorney constituted ineffective assistance. Father has therefore failed to establish his claim of ineffective assistance of counsel.

C. Conclusion

Under the applicable legal standards we are unable to reverse the juvenile court order.

DISPOSITION

The order terminating fathers parental rights is affirmed, but the juvenile

court is directed to correct its December 6, 2006, minute order to reflect accurately that fathers parental rights were terminated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur.

TURNER, P. J.

KRIEGLER, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

[2] Although the transcript of the December 6, 2006, section 366.26 hearing clearly reflects that the juvenile court terminated fathers parental rights, the courts December 6, 2006, minute order misidentifies father as Hector G., the presumed father of Nathans two older siblings. The juvenile court is directed to correct this clerical error in its order so that it accurately reflects the results of the proceedings on December 6, 2006. (Siegal v. Superior Court (1968) 68 Cal.2d 97, 101 [The rule is well settled in this state that every court of record has the inherent power to correct its records so that they shall conform to the facts and speak the truth, and likewise correct any error or defect occurring in a record through acts of omission or commission of the clerk in entering of record the judgments or orders of the court, and such correction may be made at any time by the court on its own motion].)

[3] Fathers brief admits that he is currently incarcerated, and that he was incarcerated during the entire course of the proceedings in the juvenile court. Father has an extensive criminal history.