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Name: In re L.S.
Case #: C075626
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 10/24/2014

The juvenile court abused its discretion by applying clear and convincing evidence standard of proof in order to modify prior order bypassing services. Following removal of the minors, the juvenile court bypassed services to the parents based on their prior resistance to drug treatment. The parents subsequently filed 388 petitions to modify the bypass order. The juvenile court denied the petitions, finding that the proper burden of proof was clear and convincing evidence that services were in the minors’ best interest. The appellate court reversed and remanded for a new hearing. In dependency cases, except as otherwise provided, the burden of proof requires proof by a preponderance of evidence. The clear and convincing burden of proof applies both to establish the bypass provision and to avoid bypass if reunification is in the best interest of the child. However, section 388 does not apply a heightened burden of proof to petitions to modify bypass orders based on sections (b)(11) and (b)(13). Because the court applied the heightened burden of proof here, the court abused its discretion. The abuse of discretion was not harmless error. There were several reports and extensive testimony on both the degree that circumstances had changed as well as what was in the minors’ best interests. The court also found that errors made in the ICWA notice required remand.