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§2.12 Petition for Modification

[1] Grounds
[2] Burden of Proof
[3] Procedure

[1] Grounds

Any parent, person with an interest in a dependent child, or a guardian of the child may file a petition for modification if there is a change of circumstance or new evidence that may require you to [WIC §§385, 388(a)(1); CRC 5.560(d)]:

  • Change, modify, or set aside any prior order in the proceeding; or
  • Terminate jurisdiction over the child.

Additionally, any person, including a dependent child, may file a modification petition to [WIC §388(b)]:

  • Assert a relationship as a sibling related by blood, adoption, or affinity to the dependent child, or a child who is the subject of a dependency petition; and
  • Request visitation or placement with or near the child, or consideration when determining or implementing a case or permanent plan; or
  • Request any other order that is in the dependent child’s best interests; or
  • Terminate reunification services prior to the next review hearing or within six months of the initial dispositional hearing if the statutory criteria exist [WIC §388(c)(1)].

Any party (including a dependent child) may also file a petition, before you issue an order terminating parental rights, to modify an order that reunification services were not needed under WIC §361.5(b)(4), (5), or (6) [see §5.18], or to modify any orders related to custody or visitation. [WIC §388(a)(2).]

The change in circumstance that justifies modification of a prior order must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [In re S.R. (2009) 173 CA4th 864, 870.]

The petition must show how the modification will promote the child’s best interests. [WIC §388(c).] For a petition (or request) to change a court order, see form JV-180. For an information sheet that should be given to the child after any initial decision, see form JV-185. You must enter orders on the appropriate form; see form JV-183 or JV-184.

[2] Burden of Proof

If the petition seeks removal from the home, you must find by clear and convincing evidence that the grounds for removal in WIC §361(c) exist. [CRC 5.570(h)(1)(A); see Part 2, §5.14[2].] If the petition seeks a more restrictive level of placement, you must find by clear and convincing evidence that the change is necessary to protect the child’s physical or emotional well-being. [CRC 5.570(h)(1)(B); In re Michael D. (1996) 51 CA4th 1074, 1085.] If the request is for termination of court-ordered reunification services, the petitioner must show by clear and convincing evidence that one of the conditions in section 388(c)(1)(A) or (B) exists, and show by a preponderance of evidence that reasonable services have been offered or provided. [CRC 5.570(h)(1)(C).]

For all other requests, you must determine by a preponderance of the evidence that the child’s welfare requires the modification. [CRC 5.570(h)(1)(D); see Nahid H. v. Superior Court (1997) 53 CA4th 1051, 1068.]

A de facto parent is not entitled to the higher standard of proof for removal, because a de facto parent has more limited rights than a parent or a legal guardian. [In re M.V. (2006) 146 CA4th 1048, 1059.]

You may grant a section 388 order to permit the sibling of a child proposed for adoption to participate in a section 366.26 hearing. The sibling need only show that there is a sufficient bond with the adoptive child so that the best interests of that child require full consideration of the impact of interfering with the relationship before a permanent plan is reached. [In re Hector A. (2005) 125 CA4th 783, 793.]

A petition seeking to terminate a legal guardianship may be filed as either a petition to modify or a petition to supplement the previous order, depending upon the circumstances. If the petition seeks to terminate a legal guardianship and place a child into foster care, a section 387 petition would be required because section 387 provides a more detailed procedure appropriate for the gravity of the requested placement. [In re Jessica C. (2007) 151 CA4th 474, 481.]

[3] Procedure

The procedures and hearings on a modification petition are governed by WIC §297(c) and §388 and CRC 5.570. No parental notice is required if the petition is filed by a nonminor dependent. [WIC §297(e).]

If you know or have reason to know that an Indian child is involved, you must ensure that notice is completed in accordance with WIC §224.2. [See Part 1, §1.05.

A special petition process exists to set aside a tribal customary adoption order when evidence shows that the child has a developmental disability or mental illness that the adoptive parents had no knowledge of before entry of the order. [See WIC §§366.24, 366.26(e)(3).]

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© 2006 by Judicial Council of California
updated as of January 1, 2012