§6.10 Findings and Orders at 18-Month Permanency Review Hearing

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

[1] Whether to Return Home

You must order the return of the child to parental custody 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 §366.22(a); CRC 5.720(c)(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 §366.22(a); CRC 5.720(c)(1).]

You must also [WIC §366.22(a); CRC 5.720(c)(5); see WIC §366.21(f)]:

• Determine by a preponderance of evidence whether reasonable reunification services were offered or provided to the parents or guardians [Katie V. v Superior Court (2005) 130 CA4th 586, 594–595]; and
• Determine whether services to aid in the transition between foster care and independent living were offered to children 16 or older.

You should also make findings and orders on whether reasonable concurrent planning efforts were provided to achieve legal permanence for the child if efforts to reunify fail. [See WIC §§366.22(a), 16501.1(f)(9); CRC 5.720(c)(5), (6).]

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].

Title IV-E Title IV-E

[2] Extension of Services

Under very exceptional circumstances you may consider extending reunification services beyond the 18-month limitation. The extension must be supported by substantial evidence that is reasonable in nature, credible, and of solid value. [In re Brequia Y. (1997) 57 CA4th 1060, 1068–1069; Rosa S. v Superior Court (2002) 100 CA4th 1181, 1188; but see Los Angeles County Dep’t of Children etc. Servs. v Superior Court (1997) 60 CA4th 1088, 1091–1092 (extension beyond 18-month date was abuse of discretion).] Services may also be extended under WIC §366.3 at the postpermanency planning review hearing. [See §8.06[5].]

Title IV-E Title IV-E

[3] Placement With Noncustodial Parent

If you previously placed, or are placing, the child with a noncustodial parent, you may [CRC 5.720(c)(2)]:

• Continue supervision 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.

[4] Set .26 Hearing or Order Foster Care

If you do not order the child returned to the custody of a parent or guardian, you must do the following [WIC §§366.22(a), (b), 366.35; CRC 5.720(c)(3), (6), (16)]:

• Terminate reunification services, set a .26 hearing within 120 days, order DSS to prepare an assessment, continue visitation unless you find it detrimental, and make any other order to enable the child to maintain important relationships; or
• Order 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 (e.g., an older child or a child with significant disabilities);
• 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 you order a child 10 or older to remain in foster care for at least six months, determine if the agency identified nonsiblings who are important to the child and will maintain a caring, permanent relationship consistent with the child's best interest, and if the agency made reasonable efforts to maintain those relationships; you may make appropriate orders to maintain those relationships; 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.

Even if you find by clear and convincing evidence that the child is not adoptable and there is no one willing to accept legal guardianship, you are not required to bypass a .26 hearing and may order one. [Victoria S. v Superior Court (2004) 118 CA4th 729, 733.]