California Welfare and Institutions Code Section 388

Under Welfare and Institutions Code section 388, a party may petition the court to change, modify or set aside a previous court order. The court may deny the application ex parte "if the petition fails to state a change of circumstance or new evidence that may require a change of order . . . , or that the requested modification would promote the best interest of the child. . . ." (Cal. Rules of Court, rule 5.570(d).) (Further rule references are to the California Rules of Court.) The court must liberally construe the petition in favor of its sufficiency. (In re Marilyn H., supra, 5 Cal.4th at p. 309; rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, at p. 310; In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 808.) Under this standard of review, we will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) The petitioning party has the burden of showing, by a preponderance of the evidence, there is a change in circumstances or new evidence, and the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.) Whether a previous order should be modified and a change would be in the child's best interests are questions within the sound discretion of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court's order will not be disturbed on appeal unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. When two or more inferences reasonably can be deduced from the facts, we may not substitute our decision for that of the trial court. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319; In re Casey D., supra, 70 Cal.App.4th at p. 47.) When the court evaluates the appropriate placement for a child after reunification services have been terminated, its sole task is to determine the child's best interests. (In re Stephanie M., supra, 7 Cal.4th at p. 320.) In this context, the goal is to assure the child "stability and continuity." (Id. at p. 317.) The need for stability and continuity "'will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child.' " (Ibid.) Thus, after the court terminates reunification services, "there is a rebuttable presumption that continued foster care is in the best interest of the child." (Ibid.) Welfare and Institutions Code Section 388 provides for modification of prior juvenile court orders when the moving party can demonstrate new evidence or a change of circumstances and modification of the previous order is in the child's best interest. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) "The parent seeking modification must 'make a prima facie showing to trigger the right to proceed by way of a full hearing.'" (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) The required prima facie showing has two elements: The parent must demonstrate (1) a genuine, significant and substantial change of circumstances or new evidence and (2) revoking the previous order would be in the best interests of the child. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) That is, "the petition must allege a change of circumstance or new evidence that requires changing the existing order." (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) "The petition is liberally construed in favor of its sufficiency." (In re Daijah T., supra, 83 Cal.App.4th at p. 672.) To be entitled to a hearing, the petitioner "need only . . . show 'probable cause'; the petitioner is not required to establish a probability of prevailing on the petition." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) Nonetheless, if the allegations fail to show changed circumstances such that the child's best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807 "the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order"; cf. In re Edward H. (1996) 43 Cal.App.4th 584, 593 "'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".) When reunification services are ordered terminated, the focus shifts from the parent's interest in reunification to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) "[I]n fact, there is a rebuttable presumption that continued foster care is in the best interests of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Section 388 allows a parent to petition the juvenile court to change, modify or set aside any previous order, including an order terminating reunification services. ( 388, subd. (a).) "The burden ... is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the 'escape mechanism' that ... must be built into the process to allow the court to consider new information." (In re Marilyn H., supra, at p. 309; see also In re Zacharia D. (1993) 6 Cal.4th 435, 447; In re Stephanie M., supra, at p. 317.) Thus, the parent has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child. ( 388; Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1068; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) A parent must show changed, not changing, circumstances. (In re Casey D., supra, at p. 47.) The change of circumstances or new evidence "must be of such significant nature that it requires a setting aside or modification of the challenged prior order." (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451.) In considering whether the parent has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.) The court may consider factors such as the seriousness of the reason leading to the child's removal, the reason the problem was not resolved, the passage of time since the child's removal, the relative strength of the bonds between the parent and child, the nature of the change of circumstance and the reason the change was not made sooner. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446-447.) A section 388 petition must state a prima facie case in order to trigger the right to proceed by way of a full evidentiary hearing. (In re Edward H. (1996) 43 Cal.App.4th 584, 592.) That is, the petition must make a prima facie showing of facts sufficient to sustain a favorable decision if the facts are credited. (Id. at p. 593; see In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The court must liberally construe the petition in favor of its sufficiency (see Cal. Rules of Court, rule 5.570(a); In re Angel B. (2002) 97 Cal.App.4th 454, 461), which is to say the petition must be "liberally construed in favor of granting a hearing to consider the parent's request. " (In re Marilyn H., supra, at pp. 309-310; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413-1414.) "'There are two parts to the prima facie showing: The parent must demonstrate (1) a genuine change of circumstances or new evidence, and that (2) revoking the previous order would be in the best interests of the children. '" (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1079 Fourth Dist., Div. Two.) "If the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806; In re C.J.W., supra, at p. 1079.)