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Name: In re Alayah J.
Case #: B275728
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 03/08/2017

Juvenile court erred when it conditioned mother’s 388 hearing upon non-termination of parental rights, but the error was harmless. Prior to the 366.26 hearing, mother filed a section 388 petition requesting unmonitored visits and placement. The juvenile court granted her a hearing, to be held the same date as the section 366.26 hearing, but noted that the hearing would only be held if mother’s parental rights were not terminated. The juvenile court terminated mother’s parental rights and did not consider her section 388 petition. The appellate court found the juvenile court erred by conditioning the hearing on mother’s section 388 petition upon non-termination of parental rights, as this was not an available option under section 388 or rule 5.570. If the court does not summarily grant or deny a section 388 petition, it must either hold an evidentiary hearing or hold a hearing for the parties to argue whether an evidentiary hearing should be granted. Conditioning the grant of a hearing on mother’s petition was outside the scope of the court’s statutory authority and circumvented the “escape mechanism” intended by section 388. It foreclosed any opportunity for mother to demonstrate a legitimate change of circumstances before her parental rights were terminated. However, no miscarriage of justice occurred despite the error. The evidence in the record showed that mother was only in partial compliance with her case plan, and tested positive for marijuana. She had not progressed to unmonitored visits and had not participated in counseling. Thus, any error was harmless.