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Name: In re Lesly G.
Case #: B202299
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 05/01/2008

The trial court erred when it failed to hold a hearing on the 388 modification petition. Prior to the 366.26 hearing, mother filed a 388 petition which the court took under submission and informed mother that it would set a 366.26 hearing and possibly a 388 hearing. The court checked boxes corresponding to two inconsistent statements: that the matter would be set for a hearing, and that the court would not hold a hearing. The court then summarily denied the 388 petition and proceeded with the 366.26 hearing. On appeal, mother contended that the juvenile court violated procedural due process when it failed to hold a hearing on her section 388 petition. The appellate court agreed and reversed. The conflicting checkmarks rendered the order incoherent. Moreover, the court must order a hearing where the petitioner has made a prima facie showing; the court may not summarily deny the petition where the showing has been made. The court did not comply with due process or with the statutory mandate of section 388. The subsequent 366.26 orders also had to be reversed.