In re Thomas and Ashley

Filed 6/21/07 In re Thomas and Ashley W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

BY THE COURT:

Part I.A. of the opinion filed May 22, 2007 is modified by deleting the first sentence of the last paragraph, The juvenile court did not abuse its discretion in denying Fathers section 388 petition; deleting footnote 4 on page 11; and adding the following four paragraphs at the end of part I.A:

Father further argues that the trial courts failure to set forth the factual basis for its ruling requires a remand. The general rule is that in the absence of express findings, an appellate court presumes the trial court applied the correct legal standards and reviews the record to see if substantial evidence supports the courts ruling. (In re Jeremy W., supra, 3 Cal.App.4th at p. 1414.) Fathers attempts to take his case out of this rule are unpersuasive. First, Father states there is no clear indication that the juvenile court judge, who was new to the case, reviewed the record before ruling on Fathers motion. He cites no legal authority requiring an express statement by the trial court that it reviewed the record before the Court of Appeal may review the record for evidence in support of the trial courts decision. (Cf. In re Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1159.)

Second, Father argues the Department failed to provide a complete and accurate record for the trial court, and he points out that the Department did not file written opposition to his petition. Father bore the burden of proof at the section 388 hearing. ( 388; In re Stephanie M., supra, 7 Cal.4th at p. 317.) He had the opportunity to point out any inaccuracies in the juvenile court record at the hearing.

Finally, Father cites In re M.V. (2006) 146 Cal.App.4th 1048, which held that a juvenile courts failure to make factual findings in support of its ruling on a section 388 petition prevented meaningful appellate review. (Id. at p. 1062.) The court reversed and remanded for factual findings. (Id. at pp. 1062-1063.) In re M.V. is distinguishable: there was undisputed evidence that would have supported denial of the petition in the absence of an adverse credibility finding (and the court made no express credibility findings); the court failed to expressly grapple with other compelling evidence that would have supported denial of the petition; and nothing in the record indicated that the court applied the correct legal standards or placed the burden of proof on the correct party. (In re M.V., pp. 1060-1061.) Here, Father has not identified any reason to believe the court applied incorrect legal standards and we have not seen any undisputed or compelling evidence that is difficult to reconcile with the courts ruling.

The juvenile court did not abuse its discretion in denying Fathers section 388 petition.

The modification does not affect the judgment.

The petition for rehearing is denied.

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