In re A.Y

Filed 6/7/06 In re A.Y. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Valerie Lynn Skeba, Referee. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Father appeals a juvenile court order denying his oral request, made during a progress hearing, to modify a prior custody order and to return three dependent children of the juvenile court to the parents' custody. We conclude that Father had to bring a petition pursuant to Welfare and Institutions Code section 388,[1] which would provide the advance notice to the children and to the Department of Children and Family Services (DCFS) that section 386 requires before a juvenile court can modify a prior order. We affirm the order denying Father's request to modify the custody order.

FACTUAL AND PROCEDURAL HISTORY

Detention of the Children: Eleven-year-old A.Y., nine-year-old K.Y., and seven-year-old M.Y. were detained on March 4, 2005 from their parents after a Child Protection Hotline report alleged physical abuse of A.Y. and emotional abuse and general neglect of all three children. On March 4, 2005, A.Y. told her teacher that on March 1, 2005, Father became upset and kicked her on her right side below her ribs, with his shoe on, causing a greenish-yellow, one-and-one-half-inch bruise. A.Y. also said that when she did not finish her laundry on March 2, 2005, Father became angry and grabbed A.Y. by her neck, leaving a red, four-inch mark. A.Y. went to her bedroom. Father entered with a gun, which was reportedly loaded, pointed it at A.Y., and threatened to kill her and himself. Mother, K.Y., and M.Y. witnessed this incident. A.Y. said Father pushed Mother away when she tried to intervene. Eventually Father put the gun down and left A.Y.'s bedroom. A.Y. said she could not sleep that night because she feared Father would come to her room and kill her. Mother left for a six-day business trip on March 3, 2005. A.Y. felt terrified about herself and her siblings being alone with Father until Mother returned. A.Y. also reported that Mother had pulled her out of bed by her hair and threw her against a desk, causing her to requires staples in her head. Law enforcement investigated this incident.

Los Angeles Police officers detained A.Y. from her elementary school. Other officers interviewed K.Y. and M.Y. K.Y. said Father pulled A.Y. by her ears, grabbed her by the neck, and after following A.Y. into her bedroom, Father told her â€