In re E.L.

Filed 3/22/06 In re E.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed in part, reversed in part and remanded with directions.

I

INTRODUCTION

Kimberly L. (mother) appeals orders made under Welfare and Institutions Code section 388.^[1] She contends that the court erred by granting a section 388 hearing on an oral motion, requiring visitation to take place in a therapeutic setting, and issuing written orders in conflict with its oral ruling. We conclude that the court's grant of a section 388 hearing on an oral motion was not barred by statute or rule; however, we disapprove the practice of setting a special hearing on a written application for the purpose of making an "oral 388." Despite the irregular procedure, mother was not prejudiced and the error was harmless. We also conclude that the court did not abuse its discretion when it fashioned a custody and visitation order limiting mother's visitation to a therapeutic setting. However, the oral ruling of the court conflicts with the minute order and custody and visitation order. The court's oral ruling did not address the issue of the costs of the visitation, while the minute order states that visitation is to take place "in a therapeutic setting paid for by the mother." Mother did not have notice and an opportunity to be heard on the issue of the costs of visitation. Accordingly, we reverse the order dismissing jurisdiction and remand with directions.

II

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003 E.L., then age 16 months, became a dependent of the juvenile court under section 300, subdivision (a), after sustaining bruises on her cheek bone, the rim of her right eye socket and her right upper thigh. Doctors believed that the contusions were a result of nonaccidental trauma. Mother named E.L.'s father, Lee L. (father), as the abuser. However, the San Diego County Health and Human Services Agency (Agency), upon investigation, determined that the perpetrator of the abuse was unknown, with mother, father and mother's boyfriend, Terry B., as suspects. The court placed E.L. in foster care and ordered the Agency to provide family reunification services to each parent. Subsequent events allayed the Agency's suspicion that father had abused E.L. and focused on Terry B.

Mother and father participated in family reunification services throughout the proceedings. They were separated but lacked the funds to divorce. In October 2004 the court discontinued mother's overnight visitation for several reasons. E.L. had suffered a facial injury that mother did not report. In addition, mother exposed E.L. to cigarette smoke against medical advice. This aggravated E.L.'s asthma and led to respiratory ailments. Further, the Agency had concerns about E.L. being in the presence of mother's male friends.

By the time of the 18-month review hearing in December 2004, father and mother had completed their case plans. The court placed E.L. in the custody of her father and continued the case in order to provide additional support services to each parent. The court gave the Agency the discretion to allow E.L. to stay with her mother on overnight visits.

In February 2005, with the agreement of the parties, the court ordered regular overnight visitation for E.L. with mother. Two days later, E.L. suffered second degree burns when she fell into an uncovered wall heater at mother's home. Mother did not seek medical attention for E.L.'s injury. In March 2005, at a special hearing in which county counsel made an "oral 388" to modify the prior visitation order, the court suspended mother's overnight visitation and gave the Agency the authority to reinstate it with the concurrence of minor's counsel.

In June 2005 the Agency recommended that the court terminate dependency jurisdiction and issue custody and visitation orders. E.L. was happy in father's care. Mother's overnight visitation had resumed. According to Agency reports, visitation was going well.

On July 28, 2005, the Agency asked the clerk of court to set a special hearing for "an oral 388" to require that mother's visitation with E.L. be supervised. The Agency alleged mother "left the child with a man who was not authorized to be with the child and this man is now under criminal investigation." Because of the ongoing investigation, the Agency could not provide more specific information. On August 4, 2005, the court issued a temporary order restricting mother's visitation. The court set the matter for a contested modification hearing for the same date on which a pending section 364 hearing was scheduled. Mother opposed the change in the visitation orders. Father also opposed the Agency's request; he wanted the court to issue an order permitting no contact between mother and E.L.

At the hearing, father testified that, on July 17, 2005, mother left E.L. in the care of her boyfriend, J.R. When E.L. returned to father's home, she was holding her pubic area. Father asked her if she had to use the bathroom. E.L. said that she was hurt when J.R. penetrated her with his fingers. Her pubic area was red. Father took her to the hospital. As a result of the medical examination and forensic interview, law enforcement initiated a criminal investigation.

After the incident, E.L. had nightmares, regressed in her toilet training, and expressed anger at her mother and J.R. Father secured the services of a child psychiatrist at Naval Hospital. Although father had requested that the court issue a no contact order preventing mother from seeing E.L., he did not oppose visitation between mother and E.L. in a therapeutic setting if approved by E.L.'s therapist. Father believed that E.L. could be emotionally harmed if mother were allowed supervised visitation in a nontherapeutic setting.

At the time of the hearing, mother was out of state. Through counsel, she requested unsupervised visitation. She was amenable to supervised visitation.

The court terminated dependency jurisdiction and granted father sole legal and physical custody of E.L. In its oral ruling, the court ordered "supervised visitation in a therapeutic visitation setting" for mother. The court's minute order stated that visitation was to be supervised in a therapeutic setting, paid for by the mother. The juvenile court custody and visitation order provided that mother would be required to "bear all costs" of therapeutic visitation.

III

DISCUSSION

A. Modification of Visitation Pursuant to an "Oral 388"

Mother contends that the court erred when it proceeded with an "oral" section 388 petition. She asserts that the Agency was required to file a "written section 388 petition" because she specifically objected to the oral request for a modification of the prior visitation order. The Agency concedes that "the section 388 petition was not in written form as required." (See §§ 386, 388; Cal. Rules of Court, rules 1430, 1432;^[2] In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609.)

1. The challenge to the "oral 388" is not forfeited.

The Agency asserts that mother has forfeited this issue on appeal because she did not object to the oral motion for a section 388 modification hearing. The record shows that mother objected to the proposed change from unsupervised to supervised visitation. We agree with the Agency that mother objected to the merits of the proposed modification and did not challenge the oral procedure.

A failure to object or acquiesce waives or forfeits the right to claim error as grounds for reversal on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 390-391, 394, pp. 440-442, 444-445.) Dependency matters are not exempt from this rule. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) However, the application of the forfeiture rule is not automatic. (Hale v. Morgan (1978) 22 Cal.3d 388, 394; see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.) The appellate court has the discretion to excuse forfeiture, but should do so rarely and only in cases that present an important legal issue. (See Hale v. Morgan, supra, 22 Cal.3d at p. 394.) In matters involving the well-being of children, discretion must be exercised with special care. (In re S.B., supra, 32 Cal.4th at p. 1293.)

Section 388 plays a vital role in the dependency system by allowing the juvenile court to modify existing orders in response to new evidence or changed circumstances. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 879.) Generally, modification of visitation orders during the reunification period can have a profound impact on the family and ultimately, on the question of whether or not parental rights are terminated. (See, e.g., § 366.26, subd. (c)(10)(A) [allowing an exception to termination of parental rights when a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship].) In some circumstances, section 388 provides the mechanism to satisfy substantive and procedural due process requirements. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 [section 388 provides a safeguard that allows a parent an adequate opportunity to show current evidence of changed circumstances].)

Here, the proposed modification implicated mother's right to continued visitation with her child. (See In re Emmanuel R. (2001) 94 Cal.App.4th 452, 462-463; In re Julie M. (1999) 69 Cal.App.4th 41, 49; see also, e.g., § 362.1, subd. (a)(1)(A) ["Visitation shall be as frequent as possible, consistent with the well-being of the child."].) In many respects, the juvenile court's visitation order would define the parameters of the parent-child relationship. For these reasons, we believe the issue of the appropriate procedure to follow to modify a visitation order raises an important question of law.

In choosing to exercise our discretion to review this issue on appeal, we note that E.L. remains in the sole legal and physical custody of her father. Custody is not challenged on appeal. (See In re S.B., supra, 32 Cal.4th at p. 1293 [considerations of a child's permanency and stability are of paramount importance].)

2. The requirements of section 388.

Section 388 applies when a parent, interested person or the child (petitioner) seeks modification of a prior order in a dependency case and the pertinent statutes do not otherwise provide for modification. (See In re Lance V. (2001) 90 Cal.App.4th 668, 675.) Section 388 allows a petitioner to ask the court for a hearing to "change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court." The statute requires that the petition be verified and that it describe concisely "any change of circumstance or new evidence which are alleged to require the change of order or termination of jurisdiction." (§ 388, subd. (a); see rules 1430, 1432.)

"If it appears that the best interests of the child may be promoted by the proposed change of order, . . . the court shall order that a hearing shall be held and shall give prior notice, or cause prior notice to be given, to the persons and by the means prescribed by Section 386, and, in those instances in which the means of giving notice is not prescribed by those sections, then by means the court prescribes." (§ 388, subd. (c).)

The rules of court track the statute. Rule 1430(d) states, "A petition for modification hearing must be used if there is a change of circumstances or new evidence that may require the court to: [¶] (1) Change, modify, or set aside an order previously made; or [¶] (2) Terminate the jurisdiction of the court over the child." The clerk of court is required to serve notice of the hearing and an attached copy of the petition as defined in section 290.1. (Rules 1432(e), 1407(a)(5) & (e)(3); see In re Kelley L. (1998) 64 Cal.App.4th 1279, 1284.)

Rule 1432 requires that the petition be verified and that it contain, in addition to identifying information, the date and general nature of the order to be modified, a concise statement of any change of circumstance or new evidence that requires changing the order, a concise statement of the proposed change of the order, the petitioner's relationship with the child if the child is not the petitioner and a statement whether all parties agree to the proposed change. (Rule 1432(a).)

The Judicial Council of California has developed a form entitled "Modification Petition Attachment"^[3] for use in conjunction with "Juvenile Dependency Petition"^[4] by a petitioner seeking a modification or change in order pursuant to section 388. (Gov. Code, § 68511.) Until January 1, 2006, the use of these forms to initiate a section 388 proceeding was optional.^[5] (Rule 1407(c).)

Although the applicable statutes and rules do not explicitly provide for oral motions under section 388, the practice of requesting a modification hearing on an oral motion apparently occurs in dependency courts throughout the state. (See San Diego County Department of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888-889 (Sylvia A.); In re Natasha A. (1996) 42 Cal.App.4th 28, 36; In re Baby Boy L., supra, 24 Cal.App.4th at p. 608; In re Roger S. (1992) 4 Cal.App.4th 25, 27.)^[6] While, in general, appellate courts have strictly applied section 388 and applicable rules,^[7] the California Supreme Court has allowed the juvenile courts to exercise their discretion to consider an oral motion under section 388. In the case In re Baby Boy L., supra, 24 Cal.App.4th at page 609, the Supreme Court stated that the juvenile court "is not required to entertain an oral motion under section 388 at the time set for the 366.26 hearing." The use of the phrase "is not required" indicates that the juvenile court retains some discretion in determining whether to proceed on an oral motion pursuant to section 388.

In 1996 the California Supreme Court approved the use of an oral motion for modification at a previously scheduled postpermanency plan review hearing. (Sylvia A., supra, 13 Cal.4th at pp. 888-889.) In that case the court did not find "in rule 1466(b), or elsewhere, any proscription barring a party from making a request of the juvenile court for a determination of change of circumstances unless . . . he does so through a petition for modification on that ground." (Ibid., italics added.) The court stated in dicta that if a rule contained a "no-request injunction, it would be invalid pro tanto as inconsistent with the juvenile court law and therefore unauthorized." (Id. at p. 889, citing § 366.3, subd. (e).) The Supreme Court specifically recognized that its interpretation would allow the juvenile court to "act more expeditiously" and noted that "[p]roceedings of this sort 'must be concluded as rapidly as is consistent with fairness. . . .' (Lassiter v. Department of Social Services (1981) 452 U.S. 18, 32 . . . .)" (Sylvia A., supra, 13 Cal.4th at p. 889.)

We recognize that there may be some instances in which the juvenile court may choose to entertain an oral motion under section 388. However, at least one dependency court in San Diego appears to have developed a local practice promoting the use of an oral motion under section 388. According to the record in this case, a petitioner seeking a modification of a prior court order files with the clerk of the court a local form entitled "Special Hearing Information ¾ Dependency" (special hearing form).^[8] The clerk of court then calendars a special hearing. The petitioner notifies the parties by telephone of the date and time of the special hearing. At the hearing, the petitioner makes an oral motion for a section 388 hearing. If any party objects to the oral motion, the court requires the petitioner to file a "written" or "formal" section 388 petition. If a party does not object to the oral procedure but contests the merits of the proposed modification, the court sets a hearing on the "oral 388" motion.^[9] If neither the procedure nor the merits are contested, the court enters the modification order as requested by the petitioner, or as stipulated to by the parties.

Here, this procedure was used three times, once by mother and twice by county counsel. All requests involved modification of mother's visitation with E.L. In November 2004 mother filed a request for a special hearing asking the court to reinstate suspended overnight visitation. At the hearing, county counsel objected to the oral motion and asked for a "formal 388." The court required mother to file a section 388 petition, which she did. By the time of the hearing, that matter had been resolved by agreement.

County counsel filed one section 388 petition and two requests for "oral 388" special hearings. In June 2004, using approved Judicial Council forms, county counsel filed a section 388 petition seeking a modification of visitation orders. In March 2005 county counsel filed a special hearing form, requesting in writing a special hearing "for an ORAL 388." This matter was resolved by agreement of the parties. In July 2005 county counsel filed its second request ¾ the one at issue in this appeal ¾ again asking in writing for a special hearing "for an ORAL 388." The court entered an order temporarily imposing supervised visitation and set the matter for hearing at the time previously scheduled for the section 364 review hearing.

Although the use of an oral motion under section 388 is not prohibited, the court's local practice of setting a special hearing on a written motion to allow the petitioner to make an "oral 388" does not conform to the procedures established by the applicable state statutes, rules of court and case law. (See §§ 290.1, 388; Gov. Code, § 68511; rules 1407, 1430, 1432; see Sylvia A., supra, 13 Cal.4th at pp. 888-889; In re Natasha A., supra, 42 Cal.App.4th at p. 36; In re Baby Boy L., supra, 24 Cal.App.4th at p. 608.)

The use of a written 388 petition on the forms specified by the Judicial Council is clearly the preferred manner in which to bring a request for modification. (Gov. Code, § 68511.) We recognize that, on occasion, sudden developments in dependency cases may not allow sufficient time for preparation of a formal petition. When all parties are present at a previously scheduled hearing and there is no objection to an oral motion for a modification of a prior order, the interest of the child generally favors a prompt resolution of the issues. (Sylvia A., supra, 13 Cal.4th at p. 890.) However, when a party seeks a modification of a prior order, we expect the petitioner and the court to follow the procedures established by the Legislature, the rules of court and the Judicial Council (§§ 290.1, 388; Gov. Code, § 68511; rules 201.1, 1407, 1430, 1432; Judicial Council Forms, form JV-180 (rev. Jan. 1, 2006)), rather than filing a written request for a special hearing for the purpose of making an "oral 388."

If the dependency court and practitioners require other procedures in order to better serve the interests of dependent children, improve the efficiency of the court and ease burdens on practitioners, we suggest they pursue the development of uniform local practices through the San Diego County Superior Court Rules and Forms Committee, or modification of the rules and required forms through the auspices of the Judicial Council.

3. Any error in proceeding to modify visitation pursuant to an "oral 388" was harmless.

Although the procedures under section 388 in this case were irregular, mother was not prejudiced. First, she had notice and an opportunity to be heard regarding the proposed change in visitation. (See In re Natasha A., supra, 42 Cal.App.4th at p. 36.) Second, as discussed in part III.B, post, the court did not abuse its discretion in ordering that visitation occur only in a therapeutic setting. If a written petition had been filed on the same ground, the court could have fashioned the same order it issued after entertaining the "oral 388." Third, section 362.4 specifically grants the juvenile court the authority to make custody and visitation orders when the court terminates dependency jurisdiction. The court has the authority to hear evidence relevant to custody and visitation. (In re Natasha A., supra, at p. 36.) If the court terminates jurisdiction, as here, a petition for modification is not required.^[10] Any error in proceeding pursuant to an "oral 388" was harmless.

B. The Court Did Not Abuse its Discretion When it Required that Mother's Visitation Occur in a Therapeutic Setting

Mother contends the court's custody and visitation order requiring that her visitation with E.L. occur only in a therapeutic setting was not supported by substantial evidence. Mother also asserts that the court did not follow the uniform standards of practice concerning supervised visitation, adopted by the Judicial Council. (See Fam. Code, § 3200; Cal. Stds. Jud. Admin., § 26.2.)

1. Forfeiture.

The Agency contends that mother has forfeited the issue on appeal by objecting only to the no contact order sought by father. The Agency further argues that mother accepted supervised visitation, and that therapeutic visitation is a subset of supervised visitation.

Mother asked the court to authorize unsupervised visitation with E.L. but stated that she "would be amenable to supervised visitation." We do not construe mother's acquiescence to supervised visitation, which may involve a nonprofessional provider such as a friend or relative, flexible dates and times, and minimal cost, as acceptance of supervised visitation limited to a therapeutic setting. Thus, the issue is not forfeited on appeal.

2. Standard of review.

When the juvenile court terminates jurisdiction, the court may, on its own motion, issue a protective order under section 213.5 or Family Code section 6218, and an order determining the custody of, or visitation with, the child. (§ 362.4.) An order under section 362.4 is commonly referred to as an "exit order." (See In re John W. (1996) 41 Cal.App.4th 961, 970.) A finding of detriment is not required to limit visitation under section 362.4. The court is guided by the best interests of the child. (In re John W., supra, at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) "The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child. [Citation]." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)

The standard of review for a custody order made in a dependency proceeding is abuse of discretion.^[11] (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Upon termination of jurisdiction, the standard for denying visitation or imposing conditions for visitation is whether it is in the best interests of the child. (In re Chantal S., supra, 13 Cal.4th at p. 208.) We will not disturb the juvenile court's custody determination " ' ". . . unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. . . ." ' " (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

3. The court reasonably concluded the best interests of the child required visitation in a therapeutic setting.

Mother argues that the uniform standards imposed on providers of supervised visitation would ensure E.L.'s safety with a nonprofessional supervising mother's visitation. (See Cal. Stds. Jud. Admin, § 26.2(i).) The Agency replies that dependency law governs the court's custody orders, not the Family Code. The juvenile court has the authority to determine the right to visitation, as well as its length and frequency, and may impose any other conditions or requirements on visitation that, in the court's view, the circumstances require. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

We note that the supervised visitation standards govern the uniform practice for providers after a juvenile court or a family court has determined the safe and appropriate level of supervision according to the child's current circumstances. The standards are designed to apply to all providers of supervised visitation to ensure the safety and welfare of the child, adults and the provider. "Once safety is assured, the best interest of the child is the paramount consideration at all stages and particularly in deciding the manner in which supervision is provided." (Cal. Stds. Jud. Admin., § 26.2(a).)

The court's decision to limit mother's visitation with E.L. to a therapeutic setting was not arbitrary or capricious. While supervision generally ensures the child's immediate safety with the parent, therapeutic supervision not only provides for the child's safety but also enables the parent and child to conjointly "set relationship goals and work toward improvement in some aspect of parental or family functioning." (Cal. Jud. Council Admin. Off. of the Cts., Center for Families, Children & the Courts, Research Update (March 2000), p. 1.)

Despite 18 months of reunification services, E.L. continued to suffer accidental injury and nonaccidental trauma while in her mother's care. In the fall of 2004, mother repeatedly had to be asked not to expose E.L. to cigarette smoke, as it aggravated the child's asthma. In March 2005, during an overnight visit with mother, E.L. was burned by a wall heater. In July 2005 she was sexually molested during a visit. After this incident, E.L. had nightmares and mood changes. She was angry with her mother. Noting that mother did not appear to have benefited from services, the court determined that a therapist could help structure appropriate visitation. This was a reasonable conclusion. Court-ordered therapeutic intervention could be mother's final opportunity to learn how to establish a safe, protective and nurturing relationship with E.L.

We will not disturb the juvenile court's custody and visitation orders made under section 362.4 unless the trial court's determination was arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Mother struggled throughout the dependency case to properly supervise and care for E.L. during visitation, culminating in her failure to protect E.L. from a sexual assault. The court did not abuse its discretion when it reasonably conditioned mother's visitation with E.L. on therapeutic supervision and assistance.

C. The Juvenile Court Erred in Requiring that Mother Pay the Costs of Visitation in a Therapeutic Setting Without First Providing Notice and an Opportunity to be Heard on the Issue

Mother contends that the juvenile court orders must be reversed because the written orders conflict with the court's oral pronouncement at the August 22, 2005 hearing. When the written orders conflict with the oral pronouncement, the oral pronouncement prevails. (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1241.) Mother also argues that the parties should have had notice and the opportunity to be heard on the issue of payment of the costs of therapeutic visitation.

The Agency concedes that oral orders generally prevail over written orders but argues that the issue is forfeited on appeal. Minor's appellate counsel points out that "the record does not show that mother forfeited the argument, because it cannot be determined whether mother's trial counsel was even aware of the change in orders between the court's oral pronouncements and the written orders." Minor's counsel suggests that this court modify the custody order to conform to the juvenile court's oral pronouncement for mother's visitation, that is, "supervised visitation in a therapeutic visitation setting." However, if no party is responsible for paying visitation costs, the practical result may be that there will be no visitation at all. This result would be contrary to the strong constitutional interests and the legislative scheme favoring parental visitation. (In re Emmanuel R., supra, 94 Cal.App.4th at pp. 462-463; In re Julie M., supra, 69 Cal.App.4th at p. 49; see, e.g., § 362.1, subd. (a)(1)(A).)

The juvenile court must make the final decision about the need for, and the manner, terms, and conditions of, any supervised visitation. (Cal. Stds. Jud. Admin, § 26.2(c).) "This decision depends on several factors, including the degree of risk in each case, the financial situation of the parties, and the local resources available for supervision." (Cal. Judges Benchguides (CJER 2004) Custody and Visitation, § 200.71, p. 200-48.) "Judges should determine what resources are available in their county for no cost or low cost supervisory services to ensure contact between the child and the noncustodial parent." (Id. at p. 200-49.) There is nothing in the record to show that the court in this case considered the financial situation of the parties or any local resources before assigning the cost of therapeutic visitation to mother.

In addition, it appears that neither mother nor her attorney were aware of the requirement that mother pay visitation costs until they received the written orders. Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)

We remand this case to the juvenile court to provide the parties with notice and an opportunity to be heard on the issue of payment of costs for visitation in a therapeutic setting.

DISPOSITION

We reverse the order terminating jurisdiction and remand to the juvenile court for the purpose of assigning the costs of supervised visitation in a manner consistent with this opinion. The custody and visitation orders are reversed as to the assignment of cost of visitation to mother; in all other respects the orders are affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

HALLER, J.

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^[1] Unless otherwise indicated, statutory references are to the Welfare and Institutions Code.

^[2] Rule references are to the California Rules of Court unless otherwise indicated.

^[3] JV-180, revised January 1, 2002. This form was revised effective January 1, 2006, and is now called "Request to Change Court Order" (Judicial Council Forms, form JV‑180 (rev. Jan. 1, 2006)).

^[4] JV-100 or JV-110, revised January 1, 1999.

^[5] Effective January 1, 2006, the Judicial Council revised form JV-180 and made its use mandatory. (Judicial Council Forms, form JV-180 (rev. Jan. 1, 2006); see rule 201.1(b)(2), (c)(2) [the list of Judicial Council forms is available on the California Courts Web site at www.courtinfo.ca.gov/forms].) Rule 201.1(b) states, in part: "(1) Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all the courts. [¶] . . . [¶] (5) The court may not alter a mandatory Judicial Council form and require the altered form's use in place of the Judicial Council form."

"The Judicial Council may prescribe by rule the form and content of forms used in the courts of this state. When any such form has been so prescribed by the Judicial Council, no court may use a different form which has as its aim the same function as that for which the Judicial Council's prescribed form is designed." (Gov. Code, § 68511; see County of Lake v. Palla (2001) 94 Cal.App.4th 418, 424-425.)

^[6] We have found more than two dozen unpublished cases that refer to an "oral 388."

^[7] See In re Elaine E. (1990) 221 Cal.App.3d 809, 815 ("Where, as here, the noncustodial parent seeks modification of an existing order, he must comply with the specific requirements of section 388. These requirements may not be avoided by making the motion in a section 364 hearing.").

In the case In re Natasha A., supra, 42 Cal.App.4th at page 36, the appellant father argued that the trial court erred when it denied his oral request for a change in visitation orders at the 18-month review hearing. In affirming the decision of the trial court, the reviewing court noted that the juvenile court is forbidden to change, modify, or set aside its previous orders without advance notice to the minor and the social services agency. (§ 386.) When a hearing does not allow for the modification requested, a court cannot modify its previous orders "[a]bsent a section 388 petition (or some other form of prior notice)." (In re Natasha A., supra, at pp. 34-35.) The appellate court concluded that "before the court can modify or set aside any of its previous orders . . . prior notice must be given. A petition under section 388 provides for such notice; [father's] oral request did not." (In re Natasha A., supra, at p. 36.) However, in that case, without reaching the issue, the appellate court suggested that "some other form of prior notice" might suffice if a section 388 petition were not filed. (Ibid.)

^[8] This form, "SDSC JUV-137 (New 2-99)," does not appear on the list of current forms approved by the Superior Court of California, County of San Diego. (See Super. Ct. San Diego County, Forms - Numerical List (Feb. 6, 2006); see also Super. Ct. San Diego County Local Rules, Fee Schedule & Forms List (eff. Jan. 1, 2005); see also rule 201.3 ["(5) Each court must make available a current list of forms adopted or approved by that court."].)

^[9] We assume the court in this case determined that the petitioner stated a sufficient prima facie case for modification. (See § 388, subd. (c).)

^[10] If there is a question whether the court will terminate jurisdiction, a party seeking modification of a prior order for custody or visitation on the basis of changed circumstances or new evidence may choose to file a section 388 petition.

^[11] Mother contends the appropriate standard of review of a visitation order is whether it is supported by substantial evidence. Although an order denying visitation at a review hearing is reviewed under that standard (see In re Mark L. (2001) 94 Cal.App.4th 573, 580-581), the court has broad discretion under section 362.4 to fashion custody, visitation and protective orders when it dismisses dependency jurisdiction. Nevertheless, here, the court's order is supported under either standard.