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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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VIII.   Issues Arising From the 18-Month Review Hearing.

A.  Under what circumstances can this hearing occur?.

B.  What can happen at this hearing?.

C.  Can the court extend services beyond the 18-month period?.

D. Did the court apply the correct burden of proof to find that reasonable services have been provided? 

VIII.   Issues Arising From the 18-Month Review Hearing.

  1. Under what circumstances can this hearing occur?
    1. When the court had ordered continuing reunification services at the 12-month hearing.
  2. What can happen at this hearing?
    1. The court can either set the case for a 366.26 hearing or implement a permanent plan of long-term foster care.
  3. Can the court extend services beyond the 18-month period?
    1. The court lacks discretion to order more services except in extreme circumstances, where the court can continue reunification services under Welfare and Institutions Code section 352 [continuation of a hearing]:
      1. Where no reunification plan was ever developed for the father, the appellate court ordered such services to be provided, even though this was after the 18-month hearing. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1778.)
      2. Where the juvenile court characterized the reunification services offered to the mother as a "disgrace," but felt constrained to order a hearing on a permanent plan because the 18‑month hearing date had arrived, the appellate court reversed and remanded to give the juvenile court the opportunity to properly exercise its discretion to continue reunification services. (In re Daniel G. (1994) 25 Cal.App.4th 1205, 1209.)
      3. Where the mother had been hospitalized during most of the 18 months, yet she had substantially complied with the reunification plan and her record of visitation was exemplary, the appellate court reversed the judgment terminating the mother's parental rights and remanded the case to permit the juvenile court to exercise its discretion under section 352 to continue reunification services. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1777‑1778.)
      4. But even if the court finds at the 18-month review hearing that reasonable services have not been provided, the court may have abused its discretion in providing reunification services if there is no evidence that the child could be returned at the end of the additional reunification period and the court did not consider the child's need for stability. (In re Brequia Y. (1997) 57 Cal.App.4th 1060.)
  4. Did the court apply the correct burden of proof to find that reasonable services have been provided?
    1. Unlike the clear-and-convincing-evidence standard used at the 12-month review hearing, the court must find only by a preponderance of evidence that reasonable services have been provided. (Welf. & Inst. Code, § 366.22, subd. (a); Evid. Code, § 115.)

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