• Foreword
• Table of Contents
• Introduction

§6.11 Findings and Orders at 24-Month Subsequent Permanency Review Hearing

[1] Whether to Return Home
[2] If the Child Is Not Returned
[3] ICWA Case Findings

[1] Whether to Return Home

You must order the return of the child to the physical custody of the parent or legal guardian unless you find by a preponderance of the evidence that the return would create a substantial risk of detriment to the child’s safety, protection, or physical or emotional well-being. [WIC §366.25(a)(1).]

• You must specify a factual basis for your conclusion on whether there would be detriment if the child is returned home. [WIC §366.25(a)(2).]
• You must consider the criminal history of the parent or legal guardian subsequent to the child’s removal to the extent that it is substantially related to the child’s welfare or to the parent’s or guardian’s ability to exercise custody and control of the child (if parent or guardian agreed to submit fingerprint images). [WIC §366.25(a)(1).]
• You must consider failure of the parent or guardian to participate regularly and make substantive progress in treatment programs as prima facie evidence of detriment. [WIC §366.25(a)(1).]
• You must review and consider the report and recommendation of the social worker (who has the burden of establishing detriment) and of the appointed child advocate. [WIC §366.25(a)(1).]
• You must consider the efforts or progress, or both, demonstrated by the parent or guardian, and the extent to which he or she made use of the services provided [WIC §366.25(a)(1).]

You must make all necessary findings pursuant to WIC §366(a):

• The continuing necessity for and appropriateness of the placement;
• The extent of the agency's compliance with the case plan in making reasonable efforts or, in the case of an Indian child, active efforts, to return the child to a safe home and to complete any steps necessary to finalize permanent placement, including efforts to maintain relationships with individuals other than the child's siblings who are important to the child;
• Any limitation on the right of the parent or guardian to make educational decisions for the child;
• Whether the child has other siblings under the court's jurisdiction, and sibling contact findings, if appropriate;
• The extent of progress that has been 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, legal guardianship, or in another planned permanent living arrangement.

If the last review hearing before the child turns 18 is held under section WIC §366.25, you must make various findings and orders. [CRC 5.707(c)–(d), briefly discussed in §6.08[2][d], above.]

[2] If the Child Is Not Returned

You may order that the child remain in long-term foster care, but only if you find clear and convincing evidence of a compelling reason pursuant to WIC §366.21(g)(3) that it is not in the child’s best interest to conduct a .26 hearing because the child is not a proper subject for adoption and has no one willing to accept legal guardianship. [WIC §366.25(a)(3).]

If the child has been in foster care for 15 of the most recent 22 months, you should determine whether the social worker has any statutory ground not to submit a recommendation that you set a .26 hearing, including but not limited to, the incarceration, institutionalization, or court-ordered treatment of the parent or guardian that constituted a significant factor in the child’s foster care placement and termination of parental rights is not in the child’s best interest. [WIC §16508.1.]

In all cases in which you do not order long-term foster care, you must order that a .26 hearing be conducted within 120 days to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan. You also must order termination of reunification services to the parent or guardian, and continued visitation for the parent or guardian with the child unless you find detriment. [WIC §366.25(a)(3).]

You must determine whether reasonable reunification services were offered or provided to the parents or guardians. [WIC §366.25(a)(3).] You must determine whether the child clearly desires contact with the parent or guardian and take the child’s desire into account in devising a permanency plan. [WIC §361.5(a)(4).] You must consider and state for the record in-state and out-of-state placement options for the child and, if placed out of state, determine that such placement continues to be appropriate and in the child’s best interests. [WIC §366.25(a)(2).]

You must advise the parent or guardian that a judgment or an order setting a .26 hearing is not immediately appealable, that review may be sought only by filing the Petition for Extraordinary Writ [CRC 8.452; form JV-825], and that to preserve a right to appeal of the findings and orders made under this rule, the party is required to seek an extraordinary writ under rules 8.450, and 8.452. [See WIC §366.26(l)(3)(A).]

[3] ICWA Case Findings

In a case involving an Indian child, in addition to the findings listed above, 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];
• 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].