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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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VII.   Issues Arising From the 12-Month Review Hearing.

A.  What is the purpose of this hearing?.

B.  Did the court err in terminating service and setting the case for a 366.26 hearing?.

C.  Is the parent entitled to an additional six months of reunification services?

VII.   Issues Arising From the 12-Month Review Hearing.

  1. What is the purpose of this hearing?
    1. To determine the permanent plan for the child, i.e., return the child to the parent or develop a permanent plan.  (Welf. & Inst. Code, § 366.21, subd. (f).)
    2. If the child is 16 years or older, the court must determine whether services have been made available to assist the teenager in making the transition from foster care to independent living.  (Welf. & Inst. Code, § 366.21, subd. (f).)
  2. Did the court err in terminating service and setting the case for a 366.26 hearing?
    1. The court must terminate services unless one of the two is true: (1) there is a substantial probability that the child can be returned home within 18 months after the initial removal; or (2) reasonable services were not provided to the parent.  (Welf. & Inst. Code, § 366.21, subd. (g).)
    2. The court cannot set the 366.26 hearing unless the court determines by clear and convincing evidence that the parent has been given adequate services.  (Welf. & Inst. Code, § 366.21, subd. (g); In re Mark L. (2001) 94 Cal.App.4th 573, 585.)
  3. Is the parent entitled to an additional six months of reunification services?
    1. At the 12‑month review hearing, the court is required to extend the time for reunification services for up to an additional 6 months if reasonable services have not been provided to the parent. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1212; Welf. & Inst. Code, § 361.5, subd. (a).)

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