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§6.09 Findings and Orders at 12-Month Permanency Hearing

[1] Whether to Return Home
[2] Placement With Noncustodial Parent
[3] Set Permanency Review Hearing or Order Foster Care
[4] Set .26 Hearing

[1] Whether to Return Home

If the child was removed from the home, you must order the child returned to parental custody at the 12-month permanency hearing unless you find by a preponderance of the evidence that return would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well–being. [WIC §366.21(f); CRC 5.715(b(1).]

A parent’s or guardian’s failure to participate regularly and make substantive progress in treatment programs is prima facie evidence that return would be detrimental. [WIC §366.21(f); CRC 5.715(b)(1).] You are looking for “passing grades,” however, not “straight A’s.” The question is whether substantial evidence supports a finding that returning the child to a parent’s custody would create a substantial risk of physical or emotional detriment to the child.

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

If you determine that the child cannot be returned due to substantial risk of detriment, you cannot apply a lower threshold to whether services should be continued per WIC §366.21(g) in cases involving incarcerated parents. [A.H. v Superior Court (2010) 182 CA4th 1050, 1060.]


If you do not return the child home, you must also [WIC §366.21(f); CRC 5.708]:

  • Determine whether reasonable reunification services designed to aid the parent or guardian to overcome the problems that led to the initial removal and continued custody were offered or provided;
  • For children 16 or older, determine whether services to aid in the transition between foster care and independent living were made available; and
  • Make appropriate findings pursuant to WIC §366(a) relating to the continuing necessity and appropriateness of the placement, the extent of the agency’s compliance with the case plan, and other family reunification issues [see Part 3, §6.08[2][d]].

You must state, on the record, the in-state and out-of-state placements that you consider. [WIC §366.21(f).]

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.

If the last review hearing before the child turns 18 is held under WIC §366.21, you must make various findings and orders. [CRC 5.707(c)–(d), briefly discussed in §6.08[2][d], above.]

Title IV-E Caution Title IV-E

REFERENCE >> For a form of findings and orders after a 12-month permanency hearing, see form JV-435. For related attachments, see forms JV-436, JV-437, and JV-438.

[2] Placement With Noncustodial Parent

If you previously placed, or are placing, the child with a noncustodial parent, you may [CRC 5.708]:

  • Continue supervision and reunification services;
  • Order custody to that parent, continue supervision, and order family maintenance services; or
  • Order custody to the noncustodial parent, terminate jurisdiction, and direct that a custody order be filed.

[3] Set Permanency Review Hearing or Order Foster Care

You may order [WIC §366.21(g)(1), (3); CRC 5.715(b)]:

  • Up to six more months of services and the holding of an 18-month permanency review hearing no later than 18 months from the initial removal of the child if you find there is a substantial probability the child will be returned or that reasonable services were not offered or provided;
  • Foster care if you find by clear and convincing evidence that a .26 hearing is not in the child's best interest because the child is not a proper subject for adoption and has no one willing to accept legal guardianship; or
  • A nonminor’s legal status as an adult is in and of itself a compelling reason not to hold a .26 hearing; you may order a nonminor dependent, otherwise eligible under WIC §11403, to remain in a planned, permanent living arrangement. [WIC §366.21(g)(3).]

If you order the child to remain in foster care, identify the foster care setting by name and identify a specific permanency goal. You may order that the name and address of the foster home remain confidential. If the child is at least age 10 and will remain in out-of-home placement for at least six months, you [WIC §§366.21(g)(3), 366.35; CRC 5.715(b)]:

  • Must determine if the agency has identified individuals, in addition to siblings, who are important to the child and will maintain caring, permanent relationships with the child, consistent with his or her best interest;
  • Must determine whether the agency has made reasonable efforts to nurture such relationships; and
  • May make any other appropriate order to ensure such relationships are maintained.

For a definition of a “substantial probability of return” [WIC §366.21(g)(1); CRC 5.715(b)], see Part 3, §6.08[2][g].


[4] Set .26 Hearing

If the child is not returned, foster care is not ordered, and you do not continue the case to a permanency review hearing, you must [WIC §366.21(g)(2), (h), (i); CRC 5.715(b)]:

  • Terminate reunification services;
  • Find by clear and convincing evidence that reasonable services were provided or offered to the parent or guardian;
  • 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;
  • Set a .26 hearing within 120 days;
  • Continue visitation unless you find it detrimental;
  • Direct DSS to prepare an assessment per WIC §366.21(i), and ensure that any relative caregiver is given information regarding the permanent plans of guardianship and adoption, including the long-term benefits of each option; and
  • Make any other appropriate order to enable the child to maintain important relationships consistent with his or her best interest.
  • Order that a caregiver and, when appropriate, a child who is 16 or older  receive the child’s birth certificate when you terminate a parent’s or legal guardian’s reunification services.

Do not order a .26 hearing if the child is a nonminor dependent. [WIC §366.21(g)(2).]


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