IN RE: ALEX S.

Reset A A Font size: Print

Court of Appeal, Second District, California.

IN RE: ALEX S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. PHILIP S., Defendant and Appellant.

B228793

Decided: January 19, 2012

Philip S., in. pro. per., for Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We affirm orders issued by the juvenile dependency court denying a petition under Welfare and Institutions Code section 388.

FACTS

Mother S. and Father S. (not parties to the current appeal) are the parents of K.S. (not a party to the current appeal), born in 1987 and now an adult.   Mother S. is also the parent of twin sons, Aaron S. (not a party to the current appeal) and Alex S., who were born in August 1993.   Alex has been diagnosed with severe Attention Deficit Hyperactive Disorder, and mental and emotional problems.   The current appeal concerns Alex's best interests.

In 2004, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of K.S., Aaron and Alex. (Welf. & Inst.Code, § 300.) 1  The juvenile dependency court's orders concerning K.S. are not material for the current appeal.   The court placed Alex in a group home approved through Regional Center;  he remains in the group home to the present day.   At some point, the court placed Aaron in the home of Philip S., the appellant in the current action.

In March 2008, the court terminated parental rights over Aaron, and identified adoption as the permanent plan.   In July 2008, Philip formally adopted Aaron, and, on August 1, 2008, the court terminated jurisdiction over Aaron.

In September 2008, Philip applied to the dependency court for de facto parent status over Alex, and also submitted a Caregiver Information Form regarding Alex even though he (Philip) was not Alex's actual caregiver.   The documents presented by Philip explained that Alex liked visiting his brother, Aaron, and that Alex wanted to spend more time with Aaron and Philip.   Philip also stated that he believed Alex would benefit from spending more time in the company of peers who were “normal,” and from having someone to act as his “advocate.”   At a hearing on September 11, 2008, the dependency court granted Philip's request for de facto parent status as to Alex. At that time, the court commended Philip and DCFS for their efforts to promote and maintain a sibling relationship between Aaron and Alex.

In March 2009, Philip submitted a typewritten statement to the dependency court indicating that he was considering the possibility of adopting Alex. Meanwhile, DCFS began bringing concerns to the court about Philip's behavior toward Alex.

On March 12, 2009, the dependency court issued a “no-contact” order as to Philip and Alex. On March 27, 2009, the court kept in place its no-contact order, while directing DCFS to arrange for monitored visits between Aaron and Alex.

In July 2009, DCFS filed a section 388 petition asking the dependency court to terminate Philip's status as Alex's de facto parent.   Later in July, DCFS reported to the court that Alex had been hospitalized for psychiatric treatment.   At a hearing on July 30, 2009, the court terminated Philip's de facto parent status as to Alex.

In March 2010, Philip filed a section 388 petition requesting the resumption of unmonitored visits with Alex. Philip asked the court to return to a prior schedule of weekend and holiday visits, with day-long visits leading to overnight weekend visits.   Philip further requested that he and Aaron be allowed to take Alex on planned nine-day vacation at camp during the summer.

On March 11, 2010, the dependency court denied Philip's section 388 petition, but did order DCFS to investigate whether it was in Alex's best interest to have more liberal visitation with Philip and Aaron.

On September 9, 2010, at a hearing to review Alex's permanent plan, Philip filed a second section 388 petition, again requesting an end to monitored visits with Alex. The dependency court summarily denied Philip's petition at that time upon finding that it was not in Alex's best interest to set the matter for a hearing.

On October 22, 2010, Philip filed a notice appeal which specifically identified the dependency court's orders of March 11, 2010, and September 9, 2010.2

DISCUSSION

I. The Ruling on Philip's Section 388 Petition

Philip's briefs 3 on appeal contend the dependency court erred in denying his section 388 petition.   The court erred, argues Philip, because his petition presented “sufficient ․ ‘prima facie’ evidence of a change in circumstances” which justified a hearing.   Further, that any allegation of inappropriate conduct toward Alex was the result of Alex's mental illness.   We find the petition was properly denied.

Section 388 authorizes a person who has an interest in a dependent child of the dependency court to petition the court for a hearing to change, modify, or set aside any order previously made. (§ 388, subd. (a).)  A section 388 petitioner bears the burden of making a prima facie showing that there has been a genuine change of circumstances or new evidence, and that changing the dependency court's previous orders would be in the “best interests of the child.”  (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)   When a section 388 petition fails to show changed circumstances, or to show how a change in previous orders would serve the child's best interests, the dependency court may deny the petition without setting a hearing on the petition.  (Cal. Rules of Court, rule 5.570(d).)  On appeal, a reviewing court will not reverse the court's denial of a section 388 petition without a hearing unless an abuse of discretion is demonstrated.  (In re Josiah S. (2002) 102 Cal.App.4th 403, 419.)

Having reviewed Philip's arguments on appeal, and his section 388 petition, we are not persuaded that the dependency court abused its discretion in denying the petition without a hearing.   Philip's arguments on appeal, and his section 388 petition, essentially amount to a litany of perceived injustices regarding the manner in which DCFS and the dependency court have supervised Alex's interests.   To the extent Philip discusses events that occurred long before the dependency court's September 2010 orders, those matters may not be challenged in the current appeal.   Philip's arguments also do not clearly explain to our court which prior orders of the dependency court (by date and substance) he wanted modified by his section 388 petition.   Neither do his arguments clearly identify what new evidence he presented regarding the alleged change in circumstances that undermined the substance of the dependency court's prior orders.   From what we can gather, the information discussed in Philip's brief was available to the court, so his petition was not truly based on a showing of changed circumstances.   To the extent Philip appears to challenge the credibility of the existing information in the record, such credibility matters were solely within the dependency court's power to evaluate.   In the end, his showing of error is simply not sufficient to warrant reversal of the dependency court's orders.   We are not, as Philip appears to believe, a second or a better trier of fact (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021), and we will not reverse in the absence of a showing of abuse of discretion.  (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

The dependency court found that it would not be in Alex's best interests to change the court's existing orders.   The court's conclusion is supported by evidence in the record showing that Alex is currently happy and doing well in his present surroundings and with the present visitation framework in place.   Philip's brief on appeal has not persuaded us that an abuse of discretion occurred in this matter.

DISPOSITION

The dependency court's orders issued on September 9, 2010, are affirmed.

BIGELOW, P. J.

We concur:

RUBIN, J. GRIMES, J.

FOOTNOTES

FN1. All section references are to the Welfare and Institutions Code..  FN1. All section references are to the Welfare and Institutions Code.

FN2. In a prior order, we found the notice of appeal was untimely as to the March 11, 2010 orders.   DCFS initially refused to serve Philip with an unredacted copy of its brief..  FN2. In a prior order, we found the notice of appeal was untimely as to the March 11, 2010 orders.   DCFS initially refused to serve Philip with an unredacted copy of its brief.

FN3. When Philip initially filed his opening brief, DCFS contended that he did not have standing to contest the denial of the section 388 petition.   At first, we ordered DCFS to serve Philip with only a redacted portion of their respondent's brief addressing standing.   In our order, we determined Philip had standing and ordered DCFS to serve him with an unredacted copy of the brief.   Philip then filed a second brief..  FN3. When Philip initially filed his opening brief, DCFS contended that he did not have standing to contest the denial of the section 388 petition.   At first, we ordered DCFS to serve Philip with only a redacted portion of their respondent's brief addressing standing.   In our order, we determined Philip had standing and ordered DCFS to serve him with an unredacted copy of the brief.   Philip then filed a second brief.