Rule 5.715. Twelve-month permanency hearing
(a) Requirement for 12-month review; setting of hearing; notice (§§ 293, 366.21)
The case of any dependent child whom the court has removed from the custody of the parent or legal guardian must be set for a permanency hearing within 12 months of the date the child entered foster care, as defined in section 361.49, and no later than 18 months from the date of the initial removal. Notice of the hearing must be provided as described in section 293 and rule 5.708.
(Subd (a) amended effective January 1, 2010; previously amended effective January 1, 2001, January 1, 2004, January 1, 2006, and January 1, 2007.)
(b) Determinations and conduct of hearing (§§ 361.5, 366, 366.1, 366.21)
At the hearing, the court and all parties must comply with all relevant requirements and procedures in rule 5.708, General review hearing requirements. The court must make all appropriate findings and orders specified in rule 5.708 and proceed as follows:
(1)The court must order the child returned to the custody of the parent or legal guardian unless the court finds the petitioner has established, by a preponderance of the evidence, that return would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. Failure of the parent or legal guardian to regularly participate and make substantive progress in a court-ordered treatment program is prima facie evidence that return would be detrimental. The requirements in rule 5.708(d) must be followed in establishing detriment.
(2)The requirements in rule 5.708(e) must be followed in entering a reasonable services finding.
(3)If the court has previously placed or at this hearing places the child with a noncustodial parent, the court must follow the procedures in rule 5.708(k) and section 361.2.
(4)If the court does not order return of the child to the parent or legal guardian and the time period for providing court-ordered services has been met or exceeded, as provided in section 361.5(a)(1), the court must specify the factual basis for its finding of risk of detriment to the child and proceed as follows in selecting a permanent plan:
(A)If the court finds that there is a substantial probability that the child will be returned within 18 months or that reasonable services have not been offered or provided, the court must continue the case for a permanency review hearing to a date not later than 18 months from the date of the initial removal. If the court continues the case for an 18-month permanency review hearing, the court must inform the parent or legal guardian that if the child cannot be returned home by the next hearing, a proceeding under section 366.26 may be instituted.
(i)In order to find a substantial probability that the child will be returned within the 18-month period, the court must find all of the following:
a. The parent or legal guardian has consistently and regularly contacted and visited the child;
b. The parent or legal guardian has made significant progress in resolving the problems that led to the removal of the child; and
c. The parent or legal guardian has demonstrated the capacity and ability to complete the objectives of the treatment plan and to provide for the child's safety, protection, physical and emotional health, and special needs.
(ii)In determining whether court-ordered services may be extended to the 18-month point, the court must consider the special circumstances of a parent or legal guardian who is incarcerated or institutionalized or court-ordered to a residential substance abuse treatment program, including, but not limited to, barriers to the parent's or legal guardian's access to services and ability to maintain contact with his or her child. The court must also consider, among other factors, good faith efforts that the parent or legal guardian has made to maintain contact with the child.
(B)If (1), (4)(A), or (4)(C) do not apply, the court must terminate reunification services and order a hearing under section 366.26 within 120 days. The court and all parties must comply with all relevant requirements, procedures, findings, and orders related to section 366.26 hearings in rule 5.708.
(C)If the court finds by clear and convincing evidence, including a recommendation by the appropriate state or county adoption agency, that there is a compelling reason for determining that a section 366.26 hearing is not in the best interest of the child because the child is not a proper subject for adoption and has no one willing to accept legal guardianship:
(i)The court must terminate reunification services and order that the child remain in a planned permanent living arrangement.
(ii)If the court orders that the child remain in a planned permanent living arrangement, it must identify the foster care setting by name and identify a specific permanency goal for the child.
(iii)The court may order that the name and address of the foster home remain confidential.
(iv)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.
(v)If the child is 10 years of age or older and is placed in out-of-home placement for six 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.
(5)If the child is not returned to his or her parent or legal guardian, the court must consider and state, for the record, in-state and out-of-state options for permanent placement, including, in the case of an Indian child, whether:
(A)The agency has consulted the child's tribe about tribal customary adoption;
(B)The child's tribe concurs with tribal customary adoption; and
(C)Tribal customary adoption is an appropriate permanent plan for the child.
(Subd (b) amended effective July 1, 2010; repealed and adopted as subd (c)(2); previously amended effective January 1, 1992, January 1, 1993, January 1, 1995, July 1, 1995, July 1, 1997, January 1, 1999, January 1, 2004, January 1, 2005, and January 1, 2007; previously amended and relettered as subd (c) effective July 1, 1999, as subd (d) effective January 1, 2002, as subd (c) effective January 1, 2001, and as subd (b) effective January 1, 2010.)
Rule 5.715 amended effective July 1, 2010; adopted as rule 1461 effective January 1, 1990; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 1992, January 1, 1993, January 1, 1994, January 1, 1995, July 1, 1995, July 1, 1997, January 1, 1999, July 1, 1999, January 1, 2000, January 1, 2001, January 1, 2004, January 1, 2005, January 1, 2006, and January 1, 2010.