§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); 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.

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.

[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); 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); In re Michael D. (1996) 51 CA4th 1074, 1085.]

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); 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.

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.]