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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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X. Issues Arising From a Welfare & Institutions Code Section 388 Petition.

A. Relevant statutory language.

B. Was the correct standard employed by the court?

C. Did the parent show changed, as opposed to changing, circumstances?

D. Did the court deny appellant's due process rights by failing to afford him or her a hearing on the section 388 petition?

E. Was the appellant provided effective assistance of counsel in connection with the section 388 petition?

F. Were trial or evidentiary objections properly considered and ruled on by the juvenile court?

G. Was the juvenile court's order with respect to the section 388 petition an abuse of discretion?

H. Were the issues raised in the section 388 petition moot?

X. Issues Arising From a Welfare & Institutions Code Section 388 Petition.

  1. Relevant statutory language.
    1. A dependency court order may be changed or modified under section 388 if a petitioning parent establishes one of the statutory grounds -- changed circumstances or new evidence, for the modification -- and also proves that the proposed changes would promote the best interests of the child. (Welf. & Inst. Code, § 388; Cal. Rules of Court, rule 1432(c).)
  2. Was the correct standard employed by the court?
    1. The parent requesting the change bears the burden of proving by a preponderance of evidence that the change is justified. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43; In re Fred J. (1979) 89 Cal.App.3d 168-174-175.)
  3. Did the parent show changed, as opposed to changing, circumstances?
    1. Nine months of being drug-free was sufficient to establish changed circumstances. (In re Casey D. (1999) 70 Cal.App.4th 38, 49.)
  4. Did the court deny appellant's due process rights by failing to afford him or her a hearing on the section 388 petition?
    1. The juvenile court is required to order a hearing upon proper notice "[i]f it appears that the best interests of the child may be promoted by the proposed change of order, . . ., or termination of jurisdiction." (Welf. & Inst. Code, § 388, subd. (c).)
      1. The Third District Court of Appeal held that the juvenile court erred in denying the mother's request for an evidentiary hearing on her petition. The mother sufficiently pleaded changed circumstances as to herself, and the juvenile court erred in concluding that she needed also to plead changed circumstances as to the minors. The mother also alleged sufficient evidence that the best interests of the minors would be promoted by their reunification with their siblings. (In re Daijah T. (2000) 83 Cal.App.4th 666, 673-674.)

      2. To be entitled to a hearing, appellant needed only establish probable cause, not a probability of prevailing on her petition. Three declarations attached to the mother's petition established a strong prima facie showing of a favorable change in the mother's ability to provide the child with a stable home, which was the only negative factor supporting the juvenile court's termination of reunification services and setting of a hearing on termination of the mother's parental rights. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414-1415.)

      3. An adequate showing of changed circumstances to warrant a section 388 hearing was made where the petition described mother's continuous participation in individual therapy for more than 18 months, which was so successful that her therapist recommended the minor be returned to her custody. (In re Hashem H. (1996) 45 Cal.App.4th 1791, 1799.)

      4. The Second District Court of Appeal, Division Four, reversed an order for long‑term foster care as the permanent plan, where the mother was denied an evidentiary hearing on her section 388 petition. The petition clearly made out a prima facie case of changed circumstances. She had completed numerous educational programs and parenting classes, and had tested clean in weekly random drug tests for over two years. She had visited consistently with the children and continued to have a strongly bonded relationship with them. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) Further, the section 366.26 hearing was not an adequate substitute for a hearing on the mother's section 388 petition. (Id. at p. 433.)
  5. Was the appellant provided effective assistance of counsel in connection with the section 388 petition?
    1. Mother made a prima facie showing of prejudicial ineffective assistance of counsel, since it was reasonably probable that a result more favorable to her would have occurred had her trial counsel filed a section 388 petition. The problem leading to the dependency was the mother's failure to protect the child when the father physically abused the child. The mother then saw a counselor, attended parenting classes, entered a rehabilitation program, and began divorce proceedings. The current caretakers did not really want to adopt the child, so the bond factor overwhelmingly favored the mother. The father who abused the child was incarcerated. Given the probability that a modification petition would have been successful, the mother demonstrated a prima facie case of prejudicial ineffective assistance. (In re Eileen A. (2000) 84 Cal.App.4th 1248.)
  6. Were trial or evidentiary objections properly considered and ruled on by the juvenile court?
    1. The Fourth District Court of Appeal, Division Three, held that the juvenile court's admission of the social service reports without allowing the de facto parents to cross‑examine the preparers denied the de facto parents their due process rights. Although California Rules of Court, rule 1432(f), gives juvenile courts the discretion to disallow evidence, in this case, given the de facto parents' three‑year history with the minors, including their undisputed care and concern for them, and their allegations that the social workers' statements were inaccurate, they were entitled to a full hearing. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.)
  7. Was the juvenile court's order with respect to the section 388 petition an abuse of discretion?
    1. Reversal of a denial of a 388 petition to modify the juvenile court's termination of reunification services and termination the mother's parental rights where mother showed her home was no longer in the unsanitary and unsafe condition that had originally justified removal of the children. Further, the assessment that the mother was narcissistic cannot constitute a basis for removal of children or a finding of detriment. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-533, 535-536.)
  8. Were the issues raised in the section 388 petition moot?
    1. Where the child's adoption was final before the petition and appeal were filed, the court had no authority to grant the 388 petition and there was no remedy that the court could grant on appeal. (In re Albert G. (2003) 113 Cal.App.4th 132, 135.)

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