In re Damari Y. – Evidentiary Hearing – Family Law

The Court of Appeal reversed the judgment of the juvenile court denying Father’s request for an evidentiary hearing on his petition filed under Cal. Welf. & Inst. Code 388 to reinstate reunification services with Minor, holding that, under the circumstances, it was error to deny Father’s request for an evidentiary hearing on his section 388 petition.

A few days after Minor’s birth, the Alameda County Social Services Agency filed a petition on his behalf under Cal. Welf. & Inst. Code 300. The juvenile court terminated the reunification services of Father, who had been incarcerated since before Minor was born, and set a Cal. Well. & Inst. Code 366.26 hearing. The day before the hearing, Father filed his section 388 petition, stating that he had not been provided with services despite the court’s orders. The court denied the petition without holding an evidentiary hearing. The Court of Appeal reversed, holding that the juvenile court erred in denying Father’s request for an evidentiary hearing on his section 388 petition.

PRIMARY HOLDING

The Court of Appeals reversed the judgment of the juvenile court denying Father his request for an evidentiary hearing on his petition filed under Cal. Welf. & Inst. Code 388 to reinstate reunification services with Minor, holding that, under the circumstances, it was error to deny Father’s request for an evidentiary hearing on his section 388 petition. source

Filing a Welfare & Instructions Code Section 388 Petition In Juvenile Dependency Court

A 388 petition is typically brought to request a hearing to modify, change, or set aside a previous court order, or to terminate juvenile court jurisdiction, on the ground that there are changed circumstances or new evidence. Any change or modification of a previous order may be sought by a 388 petition. From the commencement of the juvenile dependency case to its completion, parents and other interested persons have the continuing ability to petition the court under this section. Even after reunification services are terminated, a 388 petition permits parents to force the court to consider the reunification issue with the additional new information. A petition under section 388 of the Welfare and Institutions Code may also be brought to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a dependent child or a child who is the subject of a dependency petition, and to request visitation, placement with or near that child, or consideration when determining or implementing the child’s case or permanent plan, or to request any other order that is in that child’s best interests. Documentation should be submitted with a §388 petition as an “offer of proof,” to meet the requirement of a prima facie showing necessary to trigger a hearing. A prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited. Usually, a party attaches documents which indicate to the court that, were the motion to be granted, the petitioner would be offering in evidence of live testimony along with the attached documentation. The attachments indicate the availability of admissible evidence to support the allegation of changed circumstances. To be entitled to a hearing on his petition, the petitioner only has to make a showing of probable cause; he is not required to establish a probability of prevailing on the petition. The 388 Petition should elaborate on the substantial change in circumstance or the new evidence. For example changing conditions in the family unit or the child’s life, will demonstrate to the court the need for the new court order. The petition should also address how the new court order will be in the children’s best interest. In evaluating whether the proposed modification is in the best interest of the child, the juvenile court will look at the following factors: (1) the seriousness of the problem which led to the dependency and the reason for any continuation of that problem; (2) the strength of the relative bonds between the child and her parents and caretakers, and (3) the degree to which the problem which led to the dependency may be easily removed or ameliorated, and the degree to which it actually has been. A 388 petition is a useful tool at all stages of the juvenile dependency case. source

This is not legal advice. You may want to consult a lawyer about this question.