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§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(b).]

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(b).]

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 §366.22(a).]

You must also [WIC §366.22(a); 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)(10); CRC 5.708.]

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 section WIC §366.22, 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 an 18-month permanency hearing, see form JV-440. For related attachments, see forms JV-441 and JV-442.

[2] Extension of Services

If you determine that (1) there is a substantial probability the child will be returned within 24 months from the date of removal and safely maintained at home or that reasonable services have not been provided, and (2) there is clear and convincing evidence that the best interests of the child will be met by additional services to the parent or legal guardian who has satisfied particular reunification factors, you may continue the case for up to six months, provided that the subsequent permanency review hearing occurs within 24 months of original removal. [WIC §§361.5(a)(4), 366.22(b); CRC 5.722.] You must find all of the following reunification factors [WIC §366.22(b)]:

  • The parent or guardian has consistently and regularly contacted and visited with the child;
  • The parent or guardian has made consistent and significant progress in the prior 18 months in resolving problems that led to the removal; and
  • The parent or guardian has demonstrated the capacity and ability to complete his or her substance abuse program (or a treatment program postdischarge from incarceration or institutionalization), and to provide for the child’s safety, protection, physical and emotional well-being, and special needs.


[3] Placement With Noncustodial Parent

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

  • 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, and decide not continue the case to a 24-month subsequent permanency review hearing, you must do the following [WIC §§366.22(a), (c), 366.35; CRC 5.720(b)]:

  • Terminate reunification services, set a .26 hearing within 120 days, order DSS to prepare an assessment per WIC §366.22(c), 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.]


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