Filed 12/14/06; pub. order 1/16/07 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re M.V., a Person Coming Under the Juvenile Court Law.
SAN MATEO COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
TINA F. et al.,
Defendants and Appellants.
A112525
(San MateoCounty
Super. Ct. No. 73055)
M.V., who was born in February 2004, was removed from his home pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (e),[1] on July 7, 2004. He was placed with foster parents, Tina F. and B.F. (collectively, foster parents). Tina was declared the de facto parent of M.V. on July 11, 2005. Subsequently, M.V. was either scratched or bitten[2] by the family dog on his face and the juvenile court granted the section 388 petition filed by San Mateo County Human Services Agency (agency) to modify the placement of M.V.
On appeal, foster parents argue that we should reverse the granting of the section 388 petition because the juvenile court never specified either in open court or in its written findings the standard of proof it applied. Foster parents contend the court should have used the clear and convincing evidence standard, while agency maintains the proper standard of proof was preponderance of the evidence. Further, foster parents argue, under any standard of proof, the juvenile court abused its discretion in granting the motion for modification. We conclude that reversal is required because the lower court's findings are inadequate and it is unclear whether the court considered the best interests of the child. We therefore reverse and remand with directions to the juvenile court to make findings and to conduct further proceedings consistent with this opinion.
BACKGROUND
M.V. was born in February 2004. On July 7, 2004, a petition pursuant to section 300, subdivisions (a) and (e) was filed and, subsequently, M.V. was made a dependent of the court.[3] M.V. was placed with foster parents, and Tina was declared a de facto parent on July 11, 2005.
On October 26, 2005, agency filed a petition pursuant to section 388 to modify the out-of-home placement of M.V. with Tina to another licensed foster home. The petition alleged that on October 20, 2005, M.V. received multiple facial injuries from the foster family's dog. The petition specified that â€
Description
Child welfare agency seeking to remove child from foster home pursuant to a modification motion under Welfare and Institutions Code Sec. 388 need only prove by a preponderance of the evidence that there has been a change of circumstances and that proposed modification is in the child's best interests. Order removing child from foster home because another child living in the home was bitten by the family dog was subject to reversal where judge did not find that modification would be in child's best interests and did not find that change in circumstances had been proved by preponderance of the evidence, and where undisputed evidence established that the foster parents were willing to remove the dog and that the foster parents had otherwise been responsible.
