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Issue Spotting in Appeals –
Through the Setting of the Section 366.26 Hearing

by Shama H. Mesiwala, former CCAP Staff Attorney

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II.  Issues Arising From the Detention Hearing.

A. What must the department show at this hearing?.

B. Are these issues reviewable on appeal?.

II.  Issues Arising From the Detention Hearing.

  1. What must the department show at this hearing?
    1. At this hearing the social services department must make a prima facie showing that the child comes within Welfare and Institutions Code section 300, that continuance in the parents' home is contrary to the child's welfare, and that there is a need for detention based on one or more of the criteria enumerated in Welfare and Institutions Code section 319, subdivisions (a) through (d).  (Cal. Rules of Court, rule 1445.)
  2. Are these issues reviewable on appeal?
    1. Issues arising from the detention hearing are not reviewable on appeal.  (In re Richard D. (1972) 23 Cal.App.3d 592, 595.)

    2. Review must be sought by writ petition (see In re William M. (1970) 3 Cal.3d 16, 24-25) or a petition for rehearing (Welf. & Inst. Code, § 252).

    3. However, the merits of otherwise moot or waived claims can be reached if they contain "matters of broad public interest that are likely to recur" (In re Mark C. (1992) 7 Cal.App.4th 433, 440; In re Jody R. (1990) 218 Cal.App.3d 1615, 1621‑1622) or "issues capable of repetition yet evading review." (In re Raymond G. (1991) 230 Cal.App.3d 964, 967.)

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