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In re D.B.

California Court of Appeals, First District, Fourth Division

July 11, 2013

In re D.B. et al., Persons Coming Under the Juvenile Court Law.
v.
A.G. et al., Defendants and Appellants. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v.

Order Filed 8/9/13 (unmodified opn. attached)

San Francisco County Super. Ct. No. JD08-3153 C-E, Honorable Charlotte Woolard, Trial Judge.

Counsel for Appellant, A.G.: Konrad S. Lee, under appointment by the First District Appellate Project

Counsel for Appellant, S.B.: Judith Ganz, under appointment by the First District Appellate Project

Counsel for Respondent: Dennis J. Herrera, City Attorney, Kimiko Burton, Lead Attorney; Gordon-Creed, Kelley, Holl & Sugarman, LLP, Jeremy Sugarman, Anne H. Nguyen

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

BY THE COURT:

The opinion that was filed July 11, 2013, is modified as follows:

1. Delete the second sentence of the third paragraph of section II.B. and replace it with “Here, the juvenile court granted parental visitation following termination of reunification services at the 18-month review hearing, which is governed by section 366.22.”

2. At the end of the sixth paragraph of section II.B., add the following two-paragraph footnote 7:

“In a petition for rehearing, father (joined by mother) again argues we should review the juvenile court’s order for substantial evidence, and he claims to find support in In re A.M. (2013) 217 Cal.App.4th 1067 [2013 Cal.App. Lexis 541], an opinion recently ordered published by our colleagues in Division One. His reliance on this case is misplaced. In A.M., the juvenile court bypassed reunification services for a mother under two exceptions to services listed in section 361.5, subdivision (b), but then ordered services a few months later after the mother filed a section 388 petition. (A.M. at pp. 10, 13-14.) A.M. held that the juvenile court had erred by failing to make the specific findings required under section 361.5, subdivision (c) before ordering services for the parents. (A.M. at pp. 15-20.) A.M. concluded that these findings were not excused simply because mother made her request for services by way of a section 388 petition since section 361.5 expressly requires the findings—a requirement now explicitly set forth in section 388 following an amendment in 2012. (A.M. at pp. 16-18 & fn. 2.) It is true that A.M. reviewed the juvenile court’s order for substantial evidence. (Id. at pp. 21-22.) This was proper, however, because orders regarding the bypass provisions of section 361.5, subdivision (b) are reviewed for substantial evidence. (In re Gabriel K. (2012) 203 Cal.App.4th 188, 196.) But A.M. stressed the differences between the evidentiary burdens and findings applicable to section 388 petitions, as opposed to those applicable in proceedings brought under the bypass provisions, which have never been an issue in this case. (A.M. at pp. 20-21.)

“Father also contends that the best-interest determination under section 388 is ‘subjective and less precise’ than the ‘objective finding of detriment’ that was required before the termination of visitation, as set forth in In re Manolito L., supra, 90 Cal.App.4th at page 760, and that such a factual determination should be reviewed for substantial evidence rather than for an abuse of discretion. We reject the argument for two reasons. First, Manolito L. reviewed the juvenile court’s termination of visitation after making a detriment finding for abuse of discretion. (Id. at p. 756.) Second, while we question whether the two standards are so different in this context, we note that the juvenile court here made a finding of detriment. Father’s and mother’s petitions for rehearing are denied.”

The addition of the footnote will not necessitate the renumbering of footnotes.

The modification does not change the appellate judgment. (Cal. Rules of Court, rule 8.264(c)(2).)

Appellants’ petitions for rehearing are denied.

Humes, J.

Appellants S.B. (father) and A.G. (mother) appeal from an order by the juvenile court terminating their rights to visit their three youngest children. Visitation had been authorized in July 2010 after the court terminated reunification services, and visits ensued intermittently for a year and a half. But the boys engaged in troubling behavior during and after these visits, and their attorney, joined by respondent San Francisco Human Services Agency (Agency), sought to end the visits by filing a request to change the July 2010 order under Welfare and Institutions Code section 388.[1] This request was granted by the juvenile court in April 2012, and it is this order from which the parents appeal. We conclude that the preponderance-of-the-evidence burden of ...


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