Victory Categories: Petitions to Modify (Section 388)

[Published Decision] The Court of Appeal reversed the juvenile court’s order denying father’s WIC section 388 petition for modification alleging lack of notice and remanded the matter for an evidentiary hearing. Father had requested that the dispositional order be vacated because he was not served with the dependency petition, or notice of the jurisdiction and disposition hearing, or the statutorily required form for asserting paternity. The Court of Appeal concluded that father was entitled to an evidentiary hearing as to whether the Agency ignored the most likely means of finding him and thereby denied him due process.

In this published opinion, the Court of Appeal stated that due process requires that a parent is entitled to notice of dependency proceedings and the Agency must act with diligence to locate a missing parents. The Court agreed with Ansley v. Superior Court that a parent need not make a separate showing of best interests when raising a notice violation. The Court of Appeal reversed finding father had shown he was entitled to an evidentiary hearing on his section 388 motion.

On appeal, mother argued that the juvenile court applied the incorrect evidentiary standard to her section 388 petition. Respondent conceded that the juvenile court erred.  The Court of Appeal remanded the matter stating that section 388 did not require the heightened burden of proof of clear and convincing evidence be applied to petitions to modify bypass orders based on section 361.5, subdivisions (b)(11) and (13).

The Court of Appeal found the juvenile court abused its discretion in denying maternal grandmother’s section 388 petition for modification. The Court remanded the matter for a hearing on the merits of the petition and directed the juvenile court to appoint counsel to represent maternal grandmother in those proceedings.