In re A.L.

Filed 12/11/09 In re A.L. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Reversed and remanded with directions.

In April 2007 the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for one-year-old A.L. and three-month-old M.L. because M.L. suffered severe physical abuse inflicted by one or both parents. A.L. and M.L. were detained together in a foster home that later became a placement. At the December 2008 18-month review hearing, the juvenile court continued the foster care placement and set a Welfare and Institutions Code section 366.26[1] hearing. In April 2009 mother L.N. filed a section 388 petition requesting that the court place A.L. and M.L. with her and vacate the setting of the section 366.26 hearing. In June, the court denied the petition and terminated L.N.'s parental rights to A.L. and M.L.[2]

In denying the section 388 petition, the court stated, "This is probably one of the most difficult cases I have had in front of me about return." The court found, by clear and convincing evidence, that there were changed circumstances, but concluded that it could not find, by clear and convincing evidence, that it would be in A.L. and M.L.'s best interests to be returned to L.N. ( 388.)

L.N. appeals, contending that the court required that she establish by clear and convincing evidence that it was in A.L. and M.L.'s best interests to be returned to her, when the applicable standard is preponderance of the evidence. L.N. requests that we remand the case to the juvenile court with directions to return the children to her custody forthwith. In the alternative, she requests that we remand with directions to order two months of liberal, unsupervised visitation, followed by a new section 388 hearing, applying the correct burden of proof.

The Agency concedes that the court employed the wrong burden of proof and also concedes that the error cannot be deemed harmless. The Agency asks that we remand the case to the juvenile court for a new section 388 hearing at which the court shall apply the preponderance of the evidence burden of proof.

A parent's burden of proof on a section 388 petition is by a preponderance of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In light of the court's comments that this case was very close, we cannot conclude that its application of the clear and convincing burden of proof was harmless. We therefore reverse the judgment and remand for a new section 388 hearing at which the court shall determine whether L.N. has established the elements of section 388 by a preponderance of the evidence. In light of our conclusion, we need not address her remaining contentions.

DISPOSITION

The judgment is reversed. The case is remanded to the juvenile court with directions to hold a new section 388 hearing. At the hearing, the court shall determine whether L.N. has established the elements of section 388 by a preponderance of the

evidence. If the court denies the section 388 petition, it shall hold a new section 366.26 hearing.

AARON, J.

WE CONCUR:

McINTYRE, Acting P. J.

IRION, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] The court ordered that the four-year-old half-brother, M.N., who was also in a foster home, be returned to L.N.