Section 388 Petition Example Case (Welfare and Institutions Code)

In In re Hunter S. (2006) 142 Cal.App.4th 1497, a juvenile court ordered reunification services for a mother and her five-year-old son, removed from his mother's care in February 2002. (142 Cal.App.4th at p. 1500.) The child was returned to his mother for a short time in May 2002, but placed with his maternal grandmother in June 2002 after his mother was incarcerated. (Id. at p. 1501.) During the period the child was in his maternal grandmother's care he and his mother maintained the indisputably "'loving and close relationship'" they had always shared. In November 2002 the child was placed in his paternal grandmother's care. The mother participated in services both while she was incarcerated and after she was released to a rehabilitation center in July 2003, where she was required to stay for one year. (Ibid.) While at the rehabilitation center, the mother spoke to Hunter a few times on the phone and wrote him letters, but he began refusing to take her calls. (Ibid.) He told his therapist he was angry at his mother for breaking promises and lying. (Ibid.) The mother's reunification services were terminated in July 2003. (Ibid.) The juvenile court ordered DCFS to set up postreunification visits for the mother as could be arranged through her program. But the child continued to refuse to speak to or visit with his mother despite efforts to get him to do so by DCFS, his paternal relatives and his therapist. (Ibid.) The mother, who remained sober and employed, persevered in her efforts to visit or enter joint counseling with her son, who continued to refuse almost all contact with her. (Id. at p. 1502.) In April 2004, the mother's attorney informed the juvenile court that mother had not seen her son in 17 months and requested visits in a therapeutic setting. (Hunter S., supra, 142 Cal.App.4th at p. 1502.) The court acknowledged that it had a visitation order in place, but said that, "as 'a practical matter we're certainly not going to force a child who is just absolutely refusing to visit.'" (Ibid.) The mother persistently tried to obtain visitation for the next 13 months. Her requests for assistance from DCFS and the juvenile court in that endeavor were ignored. (Id. at p. 1503.) One month before the section 366.26 hearing, the mother filed a section 388 petition, requesting reinstatement of reunification services. (Hunter S., supra, 142 Cal.App.4th at p. 1503.) The juvenile court found it would not be in the child's best interests to grant the petition. (Id. at pp. 1503-1504.) The court conceded that the mother had demonstrated a substantial change of circumstances, but said it was, "'unrealistic to believe that after one visit Hunter would melt into the arms of his mother,'" and terminated parental rights. (Id. at pp. 1503-1504, 1507.) The Court of Appeal reversed. (Hunter S., supra, 142 Cal.App.4th at p. 1509.) It found the juvenile court had improperly delegated its authority over whether visitation should occur. (Id. at pp. 1504-1505.) Although the juvenile court never made a finding that visitation would be detrimental and ordered visitation "'as can be arranged,'" Hunter was given virtually complete discretion to veto visitation and deny any contact from his mother. (Id. at p. 1505.) The court found that the juvenile court failed to enforce its postreunification visitation order. (Id. at p. 1508.) The lack of contact and visitation prevented the mother from asserting the beneficial relationship exception-her only possible defense to termination of parental rights-at the section 366.26 hearing. (Id. at p. 1504.) The court also found the juvenile court abused its discretion in denying the section 388 petition because granting the mother's request might have corrected the visitation problem. (Id. at pp. 1506-1508.) Hunter S. rejected the juvenile court's view that the child's negative feelings toward his mother showed that granting the petition was not in his best interests. The juvenile court's failure to enforce its postreunification visitation order for over two years effectively denied the mother any chance of reestablishing the previously close relationship with her son. (Id. at p. 1507.) The juvenile court's failure to ensure that visitation occurred and its additional failure to correct that error by granting the section 388 petition, made termination of parental rights a foregone conclusion. (Id. at p. 1508.)