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Name: In re Manolito L.
Case #: C036963
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/13/2001
Subsequent History: None

Following termination of reunification services, the Department of Human Services filed a petition for modification pursuant to Welfare and Institutions Code section 388 in order to terminate visitation between appellant and the minors. The Department claimed that the minors were closely bonded to the prospective adoptive parents and were confused by visits with appellant. Counselors testified that visits were extremely disruptive and could be detrimental to the children. The juvenile court found by a preponderance of evidence that visitation would be detrimental to the minors and terminated visitation. On appeal, appellant argued that the court applied an erroneous standard of proof; that detriment had to be found by clear and convincing evidence. The appellate court here disagreed. Where a change in the minor’s placement is sought under section 388, the correct standard of proof is preponderance of the evidence. Since the Legislature could not have intended a different standard of proof to the adjudication of a 388 petition according to the issue adjudicated, the same standard should apply. Further, constitutional guarantees of due process of law do not mandate a standard of proof higher than preponderance of the evidence.