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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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VI.   Issues Arising From the Six-Month Hearing.

A. Did the court hold the hearing within the proper time limits?

B. Did the court order the proper reunification services?

VI.   Issues Arising From the Six-Month Hearing.

  1. Did the court hold the hearing within the proper time limits?
    1. This hearing must take place within six months of the dispositional hearing.  (Welf. & Inst. Code, § 366, subd. (a)(1).)
    2. But if the child was under age three when first removed from the parent's custody, the six-month review hearing must take place within six months after the date the child entered foster care.  (In re Christina A. (2001) 91 Cal.App.4th 1153, 1163; Cal. Rules of Court, rule 1401(a)(7)(A).)
  2. Did the court order the proper reunification services?
    1. Usually, if the child is not returned to parental custody, the court must give the parent up to 12 months of reunification services.  (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
    2. The parent may not receive up to 12 months of reunification services even if the parent is complying with court-ordered treatment, if at the 6-month hearing the court concludes there is no substantial probability the minor may be returned within the 18‑month service plan. (Armando D. v. Superior Court (1999) 71 Cal.App.4th 1011, 1024.)
    3. If the child was under age three at the time of initial removal or part of a sibling group that includes a child under age three at the time of removal, the court can terminate reunification services if it finds by clear and convincing evidence that parent had failed to participate regularly and make substantive progress in the court-ordered treatment plan.  (Welf. & Inst. Code, § 366.21, subd. (e); Cal. Rules of Court, rule 1460.

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