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§5.18 Exceptions to Ordering Reunification Services

[1] Statutory Exceptions
[2] Ordering Services Despite Exceptions
[3] Set .26 Hearing

[1] Statutory Exceptions

You may deny reunification services if you find by clear and convincing evidence that services should be denied under any statutory exception specified in WIC §361.5(b)(1)–(15). [WIC §361.5(b); CRC 5.695(h)(6)(A)–(O).] The social worker’s report usually cites the specific subsection of WIC §361.5(b) that is the basis for denial. You should apply the provisions in a practical rather than a technical manner, e.g., you may deny reunification services under WIC §361.5(b)(10) if a parent has already failed at attempted reunification with the same child instead of a sibling. [In re Gabriel K. (2012) 203 CA4th 188, 195–196.]

Services should also be denied if:

  • The parent voluntarily relinquished the child and the relinquishment is filed with DSS [see WIC §361.5(a); CRC 5.695(h)(6)];
  • The parent and child, if old enough, agree to the appointment of a guardian [see Part 2, §5.12] and waive the right to reunification services [see form JV-195];
  • You determine by clear and convincing evidence that providing services to an incarcerated or institutionalized parent or guardian would be detrimental to the child [WIC §361.5(e)(1)]; or
  • A parent refuses to comply with a valid court order to submit to psychological examinations; the disentitlement doctrine may be applied in the context of reunification services [In re C.C. (2003) 111 CA4th 76, 80].

REFERENCE >> For a list of these exceptions, see Checklist for Denying Reunification Services.

[2] Ordering Services Despite Exceptions

If DSS proves an exception, the burden shifts to the parent to show that it should not be applied. For example, you may order services when:

  • The parent or guardian is described in WIC §361.5(b)(3), (4), or (6)–(15), but there is clear and convincing evidence that reunification is in the child’s best interests [WIC §361.5(c)];
  • The situation involves severe physical abuse of child under five, but there is competent testimony that services are likely to prevent reabuse or continued neglect, or that not attempting reunification will be detrimental to the child because the child is closely and positively attached to the parent [WIC §361.5(b)(5), (c)]; or
  • The situation involves the physical or sexual abuse of a child, sibling, or half-sibling, but other factors indicate that reunification services will benefit the child [WIC §361.5(b)(6)–(7), (i)].

Tip

REFERENCE >> See the Chart of Statutory Exceptions to Reunification Services Orders.

[3] Set .26 Hearing

If you do not order reunification services because one of the exceptions specified in WIC §361.5(b)(2)–(15) or §361.5(e)(1) applies, you must set a .26 hearing within 120 days from the disposition hearing, unless the whereabouts of the other parent are unknown or the other parent is being provided reunification services under WIC §361.5(a). [WIC §361.5(f); CRC 5.695(h)(14).]

If you order a .26 hearing, you must order DSS (or the county adoption agency) to prepare an assessment pursuant to WIC §361.5(g). The assessment must include current search efforts for absent parents and notice to a noncustodial parent. [WIC §361.5(g)(1)(A).]

If you don’t order reunification services, you must order that the child’s caregiver receive the child’s birth certificate. You must also order, when appropriate, that a child who is age 16 or older receive his or her birth certificate. [WIC §361.5(j).]

You should ensure that notice is given to the current caregiver for the child, including foster parents, relative caregivers, preadoptive parents, and nonrelative extended family members. Any person notified may attend all hearings and may submit any information he or she deems relevant to the court in writing. [WIC §291; CRC 5.534(n).]

The county welfare department is required to utilize the prisoner locator system to facilitate proper and effective notice for all hearings involving incarcerated parents. [WIC §361.5(e)(2).]

Caution


   
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© 2006 by Judicial Council of California
updated as of January 1, 2012