|     printer icon  Printer-friendly version of this page

2014 California Rules of Court

Rule 5.708. General review hearing requirements

(a) Setting of review hearings (§ 366)

The status of every dependent child who has been removed from the custody of the parent or legal guardian must be reviewed periodically but no less frequently than once every 6 months until the section 366.26 hearing is completed. Review hearings must be set as described in rule 5.710 (for 6-month review hearings), rule 5.715 (for 12-month permanency hearings), rule 5.720 (for 18-month permanency review hearings), or rule 5.722 (for 24-month subsequent permanency review hearings).

(b) Notice of hearing (§ 293)

The petitioner or the clerk must serve written notice of review hearings on Notice of Review Hearing (form JV-280), in the manner provided in section 293, to all persons or entities entitled to notice under section 293 and to any CASA volunteer, educational rights holder, or surrogate parent appointed the case.

(Subd (b) amended effective January 1, 2014.)

(c) Reports (§§ 366.05, 366.1, 366.21, 366.22, 366.25)

Before the hearing, the social worker must investigate and file a report describing the services offered to the family, progress made, and, if relevant, the prognosis for return of the child to the parent or legal guardian.

(1)The report must include:

(A)Recommendations for court orders and the reasons for those recommendations;

(B)A description of the efforts made to achieve legal permanence for the child if reunification efforts fail; and

(C)A factual discussion of each item listed in sections 366.1 and 366.21(c).

(2)At least 10 calendar days before the hearing, the social worker must file the report and provide copies to the parent or legal guardian and his or her counsel, to counsel for the child, to any CASA volunteer, and, in the case of an Indian child, to the child's identified Indian tribe. The social worker must provide a summary of the recommendations to any foster parents, relative caregivers, or certified foster parents who have been approved for adoption.

(3)The court must read and consider, and state on the record that it has read and considered, the report of the social worker, the report of any CASA volunteer, the case plan submitted for the hearing, any report submitted by the child's caregiver under section 366.21(d), and any other evidence.

(Subd (c) amended effective July 1, 2010.)

(d) Return of child-detriment finding (§§ 366.21, 366.22, 366.25)

(1)If the child was removed from the custody of the parent or legal guardian, the court must order the child returned unless the court finds by a preponderance of the evidence that return of the child to the parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker has the burden of establishing that detriment.

(2)Failure of the parent or legal guardian to regularly participate and make substantive progress in any court-ordered treatment program is prima facie evidence that continued supervision is necessary or that return would be detrimental.

(3)In making its determination about whether returning the child would be detrimental, the court must consider the following:

(A)The social worker's report and recommendations and the report and recommendations of any CASA volunteer who has been appointed on the case;

(B)The efforts or progress demonstrated by the parent or legal guardian; and

(C)The extent to which the parent or legal guardian availed himself or herself of the services provided, taking into account the particular barriers to an incarcerated or institutionalized parent or legal guardian's access to court-mandated services and the ability to maintain contact with his or her child.

(4)If the parent or legal guardian agreed to submit fingerprints to obtain criminal history information as part of the case plan, the court must consider the criminal history of the parent or legal guardian after the child's removal to the extent that the criminal record is substantially related to the welfare of the child or the parent's or legal guardian's ability to exercise custody and control regarding his or her child.

(5)Regardless of whether the child is returned home, the court must specify the factual basis for its conclusion that the return would or would not be detrimental.

(e) Reasonable services (§§ 366, 366.21, 366.22, 366.25)

(1)If the child is not returned to the custody of the parent or legal guardian, the court must consider whether reasonable services have been offered or provided. The court must find that:

(A)Reasonable services have been offered or provided; or

(B)Reasonable services have not been offered or provided.

(2)The following factors are not sufficient, in and of themselves, to support a finding that reasonable services have not been offered or provided:

(A)The child has been placed in a preadoptive home or with a family that is eligible to adopt the child;

(B)The case plan includes services to achieve legal permanence for the child if reunification cannot be accomplished; or

(C)Services to achieve legal permanence for the child if reunification efforts fail are being provided concurrently with reunification services.

(f) Educational and developmental-services needs (§§ 361, 366, 366.1, 366.3)

The court must consider the educational and developmental-services needs of each child and nonminor or nonminor dependent youth, including whether it is necessary to limit the rights of the parent or legal guardian to make educational or developmental-services decisions for the child or youth. If the court limits those rights or, in the case of a nonminor or nonminor dependent youth who has chosen not to make educational or developmental-services decisions for him- or herself or has been deemed incompetent, finds that appointment would be in the best interests of the youth, the court must appoint a responsible adult as the educational rights holder as defined in rule 5.502. Any limitation on the rights of a parent or guardian to make educational or developmental-services decisions for the child or youth must be specified in the court order. The court must follow the procedures in rules 5.649-5.651.

(Subd (f) amended effective January 1, 2014.)

(g) Case plan (§§ 16001.9, 16501.1)

The court must consider the case plan submitted for the hearing and must determine:

(1)Whether the child or youth was actively involved, as age- and developmentally appropriate, in the development of his or her own case plan and plan for permanent placement. If the court finds that the child or youth was not appropriately involved, the court must order the agency to actively involve the child or youth in the development of his or her own case plan and plan for permanent placement, unless the court finds that the child is unable, unavailable, or unwilling to participate.

(2)Whether each parent was actively involved in the development of the case plan and plan for permanent placement. If the court finds that any parent was not actively involved, the court must order the agency to actively involve that parent in the development of the case plan and plan for permanent placement, unless the court finds that the parent is unable, unavailable, or unwilling to participate.

(3)In the case of an Indian child, whether the agency consulted with the Indian child's tribe, as defined in rule 5.502, and the tribe was actively involved in the development of the case plan and plan for permanent placement, including consideration of tribal customary adoption as an appropriate permanent plan for the child if reunification is unsuccessful. If the court finds that the agency did not consult the Indian child's tribe, the court must order the agency to do so, unless the court finds that the tribe is unable, unavailable, or unwilling to participate.

(4)For a child or youth 12 years of age or older in a permanent placement, whether the child was given the opportunity to review the case plan, sign it, and receive a copy. If the court finds that the child or youth was not given this opportunity, the court must order the agency to give the child the opportunity to review the case plan, sign it, and receive a copy.

(Subd (g) amended effective January 1, 2014; previously amended effective July 1, 2010.)

(h) Out-of-state placement (§§ 361.21, 366)

If the child has been placed out of the state, the court must consider whether the placement continues to be the most appropriate placement for the child and in the child's best interest. If the child is in an out-of-state group home, the court must follow the requirements in section 361.21.

(i) Title IV-E findings (§ 366)

Regardless of whether or not the child is returned home, the court must consider the safety of the child and must determine all of the following:

(1)The continuing necessity for and appropriateness of the placement;

(2)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 as described in section 361.7, to return the child to a safe home and to complete any steps necessary to finalize the permanent placement of the child. These steps include efforts to maintain relationships between a child who is 10 years or older who has been in an out-of-home placement for 6 months or longer and individuals other than the child's siblings who are important to the child, consistent with the child's best interest;

(3)The extent of progress that has been made by the parents or legal guardians toward alleviating or mitigating the causes necessitating placement in foster care; and

(4)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.

(j) Sibling findings; additional findings (§ 366)

(1)The court must determine whether the child has other siblings under the court's jurisdiction. If so, the court must make the additional determinations required by section 366(a)(1)(D); and

(2)The court must enter any additional findings as required by section 366.

(k) Placement with noncustodial parent (§ 361.2)

If at any review hearing the court places the child with a noncustodial parent, or if the court has previously made such a placement, the court may, after stating on the record or in writing the factual basis for the order:

(1)Continue supervision and reunification services;

(2)Order custody to the noncustodial parent, continue supervision, and order family maintenance services; or

(3)Order custody to the noncustodial parent, terminate jurisdiction, and direct that Custody Order-Juvenile-Final Judgment (form JV-200) be prepared and filed under rule 5.700.

(l) Setting a hearing under section 366.26 for one parent

The court may not set a hearing under section 366.26 to consider termination of the rights of only one parent unless:

(1)That parent is the only surviving parent;

(2)The rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state; or

(3)The other parent has relinquished custody of the child to the county welfare department.

(m) Setting a hearing under section 366.26; reasonable services requirement (§§ 366.21, 366.22)

At any 6-month, 12-month, or 18-month hearing, the court may not set a hearing under section 366.26 unless the court finds by clear and convincing evidence that reasonable services have been provided or offered to the parent or legal guardian.

(n) Requirements on setting a section 366.26 hearing (§§ 366.21, 366.22, 366.25)

The court must make the following orders and determinations when setting a hearing under section 366.26:

(1)The court must terminate reunification services to the parent or legal guardian and:

(A)Order that the social worker provide a copy of the child's birth certificate to the caregiver as consistent with sections 16010.4(e)(5) and 16010.5(b)-(c); and

(B)Order that the social worker provide a child or youth 16 years of age or older with a copy of his or her birth certificate unless the court finds that provision of the birth certificate would be inappropriate.

(2)The court must continue to permit the parent or legal guardian to visit the child, unless it finds that visitation would be detrimental to the child;

(3)If the child is 10 years of age or older and is placed in an out-of-home placement for 6 months or longer, the court must enter any other appropriate orders to enable the child to maintain relationships with other individuals who are important to the child, consistent with the child's best interest. Specifically, the court:

(A)Must determine whether the agency has identified individuals, in addition to the child's siblings, who are important to the child and will maintain caring, permanent relationships with the child, consistent with the child's best interest;

(B)Must determine whether the agency has made reasonable efforts to nurture and maintain the child's relationships with those individuals, consistent with the child's best interest; and

(C)May make any appropriate order to ensure that those relationships are maintained.

(4)The court must direct the county child welfare agency and the appropriate county or state adoption agency to prepare an assessment under section 366.21(i), 366.22(c), or 366.25(b);

(5)The court must ensure that notice is provided as follows:

(A)Within 24 hours of the review hearing, the clerk of the court must provide notice by first-class mail to the last known address of any party who is not present at the review hearing. The notice must include the advisements required by rule 5.590(b).

(B)The court must order that notice of the hearing under section 366.26 not be provided to any of the following:

(i)A parent, presumed parent, or alleged parent who has relinquished the child for adoption and whose relinquishment has been accepted and filed with notice under Family Code section 8700; or

(ii)An alleged parent who has denied parentage and has completed item 2 of Statement Regarding Parentage (Juvenile) (form JV-505).

(6)The court must follow all procedures in rule 5.590 regarding writ petition rights, advisements, and forms.

(Subd (n) amended effective January 1, 2014; previously amended effective July 1, 2010.)

(o) Appeal of order setting section 366.26 hearing

An appeal of any order setting a hearing under section 366.26 must follow the procedures in rules 8.400-8.416.

Rule 5.708 amended effective January 1, 2014; adopted effective January 1, 2010; previously amended effective July 1, 2010.

[ Back to Top ]