In re A.B. CA2/8 ( 2023 )

Filed 7/11/23 In re A.B. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.B., A Person Coming B325988
Under the Juvenile Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. DK15312
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
THOMAS H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Hernan D. Vera, Judge. Appeal dismissed.
Jack A. Love, under appointment by the Court of Appeal,
for Defendant and Appellant
No appearance by Plaintiff and Respondent.
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On June 19, 2018, the juvenile court of Los Angeles County
terminated the parental rights of Mother and appellant Thomas
H. (Father), to their son A.B. (born January 2016). The court
designated A.B.’s then-caretakers as his prospective adoptive
parents and set a permanency planning review. On August 27,
2019, the juvenile court conducted a permanency planning
review, finding by clear and convincing evidence that return of
A.B. to the physical custody of his parents would create a
substantial risk of detriment to the child. The court ordered
adoption as the permanent plan for A.B.
On December 5, 2022, Father filed a petition under Welfare
& Institutions Code1 section 388. He advised the juvenile court
that circumstances had changed in that he and A.B.’s mother
were now employed. Father stated it was in A.B.’s best interest
to know his own parents. Father also advised the juvenile court
that he and Mother had been in an off-and-on relationship since
1997, when he was 21 years old and she was 18 years old.
On December 6, 2022, the juvenile court denied the section
388 petition without setting it for a hearing on the merits. The
court found there were no changed circumstances to justify
granting the petition and a modification of the court ordered plan
of adoption was not in A.B.’s best interest.
Father timely appealed.
On May 17, 2023, counsel for Father filed a no issue brief
pursuant to In re Phoenix H. (2009) 47 Cal.4th 835. That same
day we notified Father that a no issue brief had been filed on his
behalf and we invited him to file a supplemental letter setting
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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forth any issues he believes should be reviewed by this court. On
June 9, 2023, Father filed a brief asking us to return A.B. to him
and Mother.
In his brief, Father contends that A.B.’s foster parents and
the Department of Children and Family Services refused to
circumcise A.B. and refused to get his “acid reflux” treated. The
juvenile court also wrongly accused Mother of having a mental
disorder. He summarizes his position: “This is a request to
reverse this case on appeal because my son inheriting his
mother’s acid reflux and not being circumcised is not a crime.
The foster parents and the Department of Children’s and Family
services refused to have my son get the procedure to get cured
from acid reflux and to get circumcised. They have my son
carrying around two medical issues that can cause my son to get
cancer.”
This court presumes a trial court judgment is correct.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Appellant
bears the burden of establishing error. Where an appellant does
not establish error, we may dismiss the appeal. (In re Sade C.
(1996) 13 Cal.4th 952, 994.) Unlike in a criminal case, we have
no duty to conduct an independent review of the record in a
dependency case. (In re Phoenix H., supra, 47 Cal.4th at
pp. 841-843.)
A petition brought under section 388 must make a prima
facie showing that there are changed circumstances/new evidence
and that the requested modification will be in the child’s best
interest. (§ 388, subd. (a).) If the petition fails to do so, the court
may deny it without a hearing. (Cal. Rules of Court, rule
5.570(b), (d)(1); In re Zachary G. (1999) 77 Cal.App.4th 799,
806-807.) The petitioner bears the burden of presenting a prima
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facie case and the petition is to be liberally construed in favor of
its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn
H. (1993) 5 Cal.4th 295, 309–310.) A prima facie showing is
made when the facts alleged, if supported by credible evidence,
would sustain a favorable decision (In re Edward H. (1996)
43 Cal.App.4th 584, 593.) Mere conclusory statements,
unsupported by declarations or other evidence, are insufficient to
trigger a hearing. (In re Anthony W. (2001) 87 Cal.App.4th 246,
250.)
A biological parent whose parental rights have been
terminated generally lacks standing to file a modification
petition. Except for very narrow circumstances under which a
child may petition for reinstatement of parental rights, once the
termination order has been issued, the juvenile court has “no
power to set aside, change, or modify it.” (§ 366.26, subd. (i)(1).)
Father filed his section 388 petition for reinstatement of
parental rights after his parental rights were terminated. The
juvenile court lacked jurisdiction to consider the petition. Father
presents no arguable issue.
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DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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