Florence H. v. Contra Costa County Department of Social Services

Opinion

POCHÉ, Acting P. J. Florence H., the natural mother of Ronald V., appeals from an order denying her request for a modification because of [1805]changed circumstances (Welf. & Inst. Code, § 3 88)1 of an order terminating her parental rights which issued at the conclusion of a permanency planning hearing (§ 366.26).

The issue before us is a very simple one. May a parent whose rights have been terminated subsequently seek to attack that order by filing a motion in the juvenile court under section 388 to modify the order based upon changed circumstances? We conclude that the juvenile court is without jurisdiction to hear such a motion.

The factual circumstances of this case are briefly these. Ronald V. who was born September 22, 1983, was apparently the victim of sexual abuse committed by a boyfriend of his mother. By a petition filed in December 1988 the county sought to make him a dependent of the court. Reunification services with the parents were terminated at the 12-month review hearing.

In February 1990 Ronald was placed in the foster home of Richard Smith, a man in his early 60’s who was a former boyfriend of Florence H., and who had continued to express an interest in, and maintain contact, with Ronald. In anticipation that her rights would be terminated, Florence H. and Mr. Smith apparently came to an agreement that Mr. Smith would seek to adopt Ronald, but that his adoption of the boy would not preclude continuing contact with, or visits by, Florence H. At the section 366.26 hearing held on October 4, 1990, parental rights were terminated on a finding that it was likely Ronald would be adopted. No appeal was taken from that order. In mid-October of 1991 Ronald was removed from the home of Mr. Smith. Approximately two weeks later Mr. Smith died, without having adopted Ronald.

In January 1992 Florence H. petitioned the juvenile court under section 388 to modify its order for a permanency plan of adoption to one of long-term foster care or guardianship, to grant her status as a de facto parent and permit her visitation with the minor. Her petition alleged that she had acquiesced in the termination of her parental rights on the understanding that Mr. Smith would adopt Ronald and permit her continuing contact with the boy. She argued that the changed circumstance of Mr. Smith’s death warranted a modification of the section 366.26 hearing order.