Mother Wins Custody on Appeal Due to Lower Court’s Mistake

In this case, the Second District reversed a Los Angeles County juvenile court’s summary denial of M’s petition under W&I Code §§388 and 390 to set aside jurisdictional findings regarding her “alcohol abuse and mental instability and to terminate dependency jurisdiction after a court-ordered psychiatric evaluation found Patricia was not mentally ill and did not meet the diagnostic criteria for alcohol use disorder. Incorrectly characterizing her petition as an untimely new trial motion under Code of Civil Procedure section 659, the court summarily denied it without deciding whether Patricia had made a prima face showing of new evidence or a change of circumstances that demonstrated the relief requested would be in Samuel’s best interests, which would require a hearing on the merits of the petition.”

It said that,

“Patricia’s section 388 petition was based on new evidence—Dr. Dupée’s Evidence Code section 730 findings that Patricia did not suffer from mental illness or meet the diagnostic criteria for alcohol use disorder and therefore was not in need of treatment or rehabilitation—and her contention, allegedly supported by reports from visitation monitors of Patricia and Samuel’s parent/child bond, that termination of dependency jurisdiction would be in Samuel’s best interests. Rather than evaluating whether the petition made the prima facie showing required for a hearing under section 388, the court denied the petition outright, concluding Patricia’s petition was simply ‘an untimely new trial motion’ pursuant to Code of Civil Procedure section 659. The court erred. Filing a section 388 petition to terminate dependency jurisdiction under section 390 is entirely proper. (See In re Y.M., supra, 207 Cal.App.4th at p. 912 [recognizing section 388 as appropriate procedural vehicle for parent to seek termination of dependency jurisdiction pursuant to section 390];In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014 [same].) That is precisely what Patricia did here.”

“At the same time it summarily denied Patricia’s section 388 petition, the juvenile court granted a temporary restraining order prohibiting Patricia from visiting Samuel in person and stated, if it had to make a finding that day, it would find Patricia a detriment to Samuel, a powerful indicator the court believed setting aside the jurisdiction findings and dismissing the dependency petition pursuant to section 390 would not be in Samuel’s best interests. Nonetheless, the court denied the petition solely on an incorrect procedural ground. Rather than speculate as to the juvenile court’s evaluation of the sufficiency of the showing made by Patricia in her petition, we remand so the juvenile court may make that determination in the first instance.”

Read the court’s opinion here.