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§6.08 Findings and Orders at Six-Month Review Hearing

[1] Child Not Removed
[2] Child Removed
        [a] Options
        [b] Return Home Unless Substantial Risk of Detriment
        [c] Continuing Services
        [d] Findings
        [e] Set .26 Hearing
        [f] Child Under Three or Member of Sibling Group
        [g] Substantial Probability of Return

[1] Child Not Removed

If a child was not removed from the home, at the six-month review hearing you must determine if continued supervision is necessary. You must terminate jurisdiction unless DSS establishes by a preponderance of the evidence that [WIC §364(c); CRC 5.708]:

  • Conditions still exist that would justify assuming jurisdiction under WIC §300 [see Part 2, §4.02]; or
  • Those conditions are likely to exist if supervision is withdrawn.

If you continue dependency, you must order continued services and set another six-month review hearing. [WIC §364(d); CRC 5.708.]


REFERENCE >> For forms of findings and orders after an in-home status review hearing, see form JV-425 [child placed in home of parent, guardian, or custodian] or form JV-426 [child placed with previously noncustodial parent]. For a form of findings and orders after a six-month prepermanency hearing following a child’s removal from the home, see form JV-430. For related attachments, see forms JV-431, JV-432, and JV-433.

[2] Child Removed

[a] Options

If the child was removed, you may:

  • Return the child and terminate dependency [WIC §366.21(e); CRC 5.708(d); see form JV-364];
  • Return the child and continue dependency with family maintenance services [WIC §366.21(e); CRC 5.710(b)];
  • Place the child with the noncustodial parent and terminate dependency or continue dependency with family reunification services [WIC §366.21(e); CRC 5.708(k)];
  • Continue any other out-of-home placement with reunification services [WIC §366.21(e)]; or
  • Terminate reunification services if previously ordered and schedule a .26 hearing within 120 days [WIC §366.21(e); CRC 5.708; see [e], below].

[b] Return Home Unless Substantial Risk of Detriment

You must order the child returned to the parent’s or guardian’s custody unless DSS shows by a preponderance of the evidence that returning the child will create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. [WIC §366.21(e); CRC 5.708.] You must state a factual basis on the record for your determination that return would be detrimental.

In considering the efforts or progress of the parent or legal guardian, you must take in account barriers to court-ordered services and contact with the child that confront an incarcerated or institutionalized parent or legal guardian. [WIC §366.21(e).]


[c] Continuing Services

If you decide that there is a substantial risk of detriment to the child if returned, but that it would not be appropriate to terminate reunification services and order a .26 hearing, you must order continuing services and set the matter for a permanency hearing no later than 12 months from the date the child entered foster care. [See WIC §§366(b), 366.21(e)–(f), 361.5(a); CRC 5.710(b).]

In determining whether to extend services, you must consider any special circumstances of an incarcerated or institutionalized parent, or parent court-ordered to residential drug treatment, including, but not limited to, barriers to access to services and ability to maintain contact with the child. You must also consider, among other factors, good faith efforts that the parent or guardian has made to maintain contact with the child. [WIC 361.5(a)(3).]

[d] Findings

You must make findings concerning [WIC §§366(a)(1), (2), (e), 366.24, 366.21(e), (f), 366.35; CRC 5.710(b)]:

  • The continuing necessity and appropriateness of the child’s placement, including your statement, for the record, of in-state and out-of-state placement options;
  • The extent of the agency’s compliance with the case plan in making reasonable efforts to return the child to a safe home and to complete any steps necessary to finalize permanent placement, including efforts to maintain important relationships with nonsiblings for a child age 10 or older and who has been in an out-of-home placement for six months or longer;
  • Whether the social worker solicited and integrated input from the child, child’s family, the child’s identified Indian tribe, and other interested parties into the case plan, or you must order the social worker to do so unless each of these participants was unavailable, unwilling, or unable.
  • Whether a child age 12 or older and in permanent placement was given an opportunity to review, sign, and receive a copy of the case plan, or you must order the agency to do so.
  • Plans for sibling interaction;
  • Limitations on parents’ rights to make educational decisions;
  • The extent of progress made toward alleviating or mitigating the causes necessitating placement in foster care; and
  • The likely date by which the child may be returned to and safely maintained in the home, or placed for adoption, including in the case of an Indian child, effective July 1, 2010, tribal customary adoption under a guardianship, or in another planned permanent living arrangement.

If the child will not be returned home and there are no grounds to set a .26 hearing, you must also [WIC §§361.5(a)(3), 366.21(e); CRC 5.710(b)(4)]:

  • Determine whether reasonable reunification services were provided or offered to the parents or guardians;
  • Order that reunification services be initiated, continued, or modified and, before ordering a parent or guardian to participate in counseling or other treatment services, consider whether an incarcerated parent or guardian will have access to such services at the corrections facility; and
  • Inform the parent or guardian that if the child cannot be returned home by the 12-month permanency hearing, a proceeding to terminate parental rights may be instituted.

In a case involving an Indian child, you must make ICWA findings regarding:

  • Notice [25 USC §1912(a); WIC §§224, 224.1, 224.2, 224.3; CRC 5.481];
  • Detriment to return physical custody, including evidence from a qualified expert witness supported by clear and convincing evidence [25 USC §1912(e); WIC §361.7; CRC 5.484];
  • Reasonable and active efforts to prevent removal supported by clear and convincing evidence [25 USC §1912(d); WIC §361.7; CRC 5.484; In re Michael G. (1998) 63 CA4th 700, 712]; and
  • Placement according to statutory preferences [25 USC §1915(d)–(e); WIC §361.31; CRC 5.484].
For further discussion of ICWA, see Part 1, §1.05.

Title IV-E Caution Title IV-E

You also must make findings at the last review hearing before the child turns 18 regarding, e.g., the adequacy of the child’s Transitional Independent Living Case Plan, the child’s intentions regarding his or her ICWA status, the child’s efforts to receive various federal benefits, and the child’s awareness of the effect of terminating juvenile jurisdiction. [CRC 5.707(c).] You must order certain follow-up steps depending on whether the child will remain within juvenile court jurisdiction. [CRC 5.707(d).] See form JV-460.

[e] Set .26 Hearing

If you do not return the child home, you may terminate reunification services and set a .26 hearing within 120 days. You must find one of the following by clear and convincing evidence [WIC §366.21(e); CRC 5.710(f)(1)]:

  • The child was removed under WIC §300(g) [see Part 2, §4.02] and the parent’s whereabouts are still unknown, but you must take in account barriers to the parent’s ability to maintain contact with the child due to the parent’s incarceration or institutionalization;
  • The parent has not contacted and visited the child in six months [Sara M. v Superior Court (2005) 36 C4th 998, 1009–1011, 1017]; a parent’s failure to do either allows you to terminate reunification services, because the parent is required to both contact and visit the child in order to receive more reunification services, and any inconsistent language in CRC 5.710 is interpreted to require both [S.W. v Superior Court (2009) 174 CA4th 277, 283];
  • The parent was convicted of a felony indicating parental unfitness; or
  • The child was under three when removed, or is a member of a sibling group, and the parent failed to participate in treatment [see [f], below].

Generally, before termination of parental rights can occur, you must find either that reunification services would have been futile or detrimental to the minor under any of the relevant statutory subdivisions, or that the agency at least tried to reunite the family by making reasonable efforts or offering services to the parents. [In re T.M. (2009) 175 CA4th 1166, 1173.]

If you set a .26 hearing, you must also do the following [WIC §366.21(g)(1); CRC 5.710(f)(2), (10)]:

  • Direct that an assessment under WIC §366.21(i) be prepared;
  • Find by clear and convincing evidence that reasonable reunification services were provided or offered to the parent or guardian, and order termination of the services;
  • Permit the parent or guardian to visit the child unless you find visitation would be detrimental to the child;
  • If the child is age 10 or older and placed in out-of-home placement six months or longer, determine whether the agency has identified individuals important to the child, in addition to siblings, that are consistent with the child’s best interests, and whether the agency has made reasonable efforts to nurture and maintain the child’s relationships with those individuals, and make any appropriate orders to ensure that such relationships are maintained; and
  • Order the agency not to give notice of the §366.26 hearing to any parent, presumed parent, or alleged parent who has relinquished the child for adoption and whose relinquishment was accepted and filed under FC §8700, nor to any alleged parent who denied parentage and completed section 1 of Statement Regarding Parentage on form JV-505.


[f] Child Under Three or Member of Sibling Group

You may also terminate services and schedule a .26 hearing within 120 days if [WIC §366.21(e); see CRC 5.710(c)(1)(D)(d)]:

  • The child was under age three, or is a member of a sibling group in which one child was under age three at the date of the initial removal; and
  • You find by clear and convincing evidence that the parent failed to regularly participate in a court-ordered treatment plan and failed to make substantive progress in the treatment plan, unless you find that there is a substantial probability that the child can be returned by the 12-month review.

You have discretion to continue reunification services for an incarcerated parent, despite lack of substantial progress by the six–month review, if factors in the case support the legislative policy favoring reunification of families with incarcerated parents. [S.T. v Superior Court (2009) 177 CA4th 1009, 1017.] You must take into account any particular barriers to a parent’s ability to maintain contact with his or her child due to the parent’s incarceration or institutionalization. [WIC §366.215.]

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[g] Substantial Probability of Return

If there is a substantial probability that a child under age three when first removed, or a member of a qualifying sibling group, may be returned home within 6 months or 12 months from the date the child entered foster care, or that reasonable services were not provided or offered, you must continue the case to the 12–month permanency hearing. [WIC §366.21(e); CRC 5.502(9), 5.710(b).] In determining if there is a substantial probability of return, you should look to the date previously set for the 12-month review hearing, not 6 months from the date on which the 6-month hearing was actually held. [In re Tonya M. (2007) 42 C4th 836, 848.]

Pursuant to the rule of court (disapproved on this point by M.V. v Superior Court (2008) 167 CA4th 166), the court is required to impose three mandatory factual findings to find a “substantial probability of return” [CRC 5.710(c)]:

  • The parent or guardian consistently and regularly contacted and visited the child;
  • The parent or guardian made significant progress in resolving the problems that led to removal; and
  • The parent or guardian showed the ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health, and special needs.

According to M.V. v Superior Court, supra, the three factual findings found in CRC 5.710(c) do not apply because they wrongly impose a higher burden. The operable standard at the 6-month review is finding a substantial probability that the child may be returned, which requires you to find whether there is a strong likelihood of a possibility of return (distinct from a higher burden of substantial probability that the return will in fact occur, which applies at the 12-month review).

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