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Name: David L. v. Orange County
Case #: G040284
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/27/2008

The juvenile court properly set a new section 366.26 hearing for a minor in guardianship. The seven-year-old minor had been in her grandmother’s guardianship for a year when the juvenile court ordered a new section 366.26 hearing. The father challenged the court’s order, contending that the court should have required the agency or the grandmother to file a section 388 modification petition. He also contended that the juvenile court erred by utilizing a prima facie, rather than preponderance of evidence, standard in determining whether to set a new hearing. Citing In re Andrea R. (1999) 75 Cal.App.4th 1093, the appellate court rejected the father’s arguments, concluding that section 366.3 provides for a new section 366.26 hearing for children under a guardianship and does not require a new modification petition. It also does not require a preponderance of evidence standard. Here, prima facie evidence showed that guardianship did not provide enough stability for the minor, who feared she could be removed from her grandmother, and that the grandmother had a new commitment to adoption. Therefore the juvenile court properly set a section 366.26 hearing.