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Name: M.T. v. Superior Court
Case #: A125704
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 10/30/2009

The father did not have the right to an evidentiary hearing before setting of a 366.26 hearing absent an offer of proof. The minors had been in long-term foster care for four years when the juvenile court set the matter for a 366.26 hearing to consider modifying the permanent plan for two of the children from long-term foster care to adoption. Petitioner, the presumed father, sought extraordinary writ review of the order, contending that he was entitled to a hearing to contest the recommendation of referral for a 366.26 hearing. The father argued that the court erred in requiring him to make an offer of proof to justify a contested hearing, and that because the department’s status report was admitted into evidence, he should have had the opportunity to present evidence and cross-examine the preparer of the report. The appellate court rejected the argument and denied the writ. The children were before the court for a status review. The court was therefore required to set a 366.26 hearing unless it is not in the child’s best interests. If the court does hold a hearing to determine whether the hearing is not in the child’s best interests, the burden of proof is on the challenger. Since the father would have had the burden of proof, the court properly required an offer of proof. Since he failed to make the showing, and there was no reason based on the record to believe he could have made the showing, the court properly denied his request.