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California Welfare and Institutions Code Section 366.22

Legal Research Home > California Laws > Welfare and Institutions Code > California Welfare and Institutions Code Section 366.22

366.22.  (a) When a case has been continued pursuant to paragraph
(1) or (2) of subdivision (g) of Section 366.21, the permanency
review hearing shall occur within 18 months after the date the child
was originally removed from the physical custody of his or her parent
or legal guardian. After considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her 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 shall have
the burden of establishing that detriment. At the permanency review
hearing, the court shall consider the criminal history, obtained
pursuant to paragraph (1) of subdivision (f) of Section 16504.5, of
the parent or legal guardian subsequent to 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, provided
that the parent or legal guardian agreed to submit fingerprint images
to obtain criminal history information as part of the case plan. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental. In making
its determination, the court shall review and consider the social
worker's report and recommendations and the report and
recommendations of any child advocate appointed pursuant to Section
356.5; shall consider the efforts or progress, or both, demonstrated
by the parent or legal guardian and the extent to which he or she
availed himself or herself of services provided, taking into account
the particular barriers of an incarcerated or institutionalized
parent's or legal guardian's access to those court-mandated services
and ability to maintain contact with his or her child; and shall make
appropriate findings pursuant to subdivision (a) of Section 366.
   Whether or not the child is returned to his or her parent or legal
guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
return would be detrimental. If the child is not returned to his or
her parent or legal guardian, the court shall consider, and state for
the record, in-state and out-of-state options for the child's
permanent placement. If the child is placed out of the state, the
court shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
   Unless the conditions in subdivision (b) are met and the child is
not returned to a parent or legal guardian at the permanency review
hearing, the court shall order that a hearing be held pursuant to
Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or long-term foster care is
the most appropriate plan for the child. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child, and tribal customary adoption is recommended as the
permanent plan. However, if the court finds by clear and convincing
evidence, based on the evidence already presented to it, including a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency, that
there is a compelling reason, as described in paragraph (5) of
subdivision (g) of Section 366.21, for determining that a hearing
held under Section 366.26 is not in the best interests of the child
because the child is not a proper subject for adoption and has no one
willing to accept legal guardianship, the court may, only under
these circumstances, order that the child remain in long-term foster
care. On and after January 1, 2012, the nonminor dependent's legal
status as an adult is in and of itself a compelling reason not to
hold a hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement. If the court
orders that a child who is 10 years of age or older remain in
long-term foster care, the court shall determine whether the agency
has made reasonable efforts to maintain the child's relationships
with individuals other than the child's siblings who are important to
the child, consistent with the child's best interests, and may make
any appropriate order to ensure that those relationships are
maintained. The hearing shall be held no later than 120 days from the
date of the permanency review hearing. The court shall also order
termination of reunification services to the parent or legal
guardian. The court shall continue to permit the parent or legal
guardian to visit the child unless it finds that visitation would be
detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this subdivision, evidence of any of
the following circumstances shall not, in and of themselves, be
deemed a failure to provide or offer reasonable services:
   (1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
   (2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
   (3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
   (b) If the child is not returned to a parent or legal guardian at
the permanency review hearing and the court determines by clear and
convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or
legal guardian who is making significant and consistent progress in
a court-ordered residential substance abuse treatment program, or a
parent recently discharged from incarceration, institutionalization,
or the custody of the United States Department of Homeland Security
and making significant and consistent progress in establishing a safe
home for the child's return, the court may continue the case for up
to six months for a subsequent permanency review hearing, provided
that the hearing shall occur within 24 months of the date the child
was originally taken from the physical custody of his or her parent
or legal guardian. The court shall continue the case only if it finds
that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or legal
guardian and safely maintained in the home within the extended period
of time or that reasonable services have not been provided to the
parent or legal guardian. For the purposes of this section, in order
to find a substantial probability that the child will be returned to
the physical custody of his or her parent or legal guardian and
safely maintained in the home within the extended period of time, the
court shall be required to find all of the following:
   (1) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
   (2) That the parent or legal guardian has made significant and
consistent progress in the prior 18 months in resolving problems that
led to the child's removal from the home.
   (3) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her substance
abuse treatment plan as evidenced by reports from a substance abuse
provider as applicable, or complete a treatment plan postdischarge
from incarceration, institutionalization, or detention, or following
deportation to his or her country of origin and his or her return to
the United States, and to provide for the child's safety, protection,
physical and emotional well-being, and special needs.
   For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
   The court shall inform the parent or legal guardian that if the
child cannot be returned home by the subsequent permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court may not order that a hearing pursuant to Section 366.26 be
held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
   (c) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including when a tribal customary adoption is recommended,
shall be held, it shall direct the agency supervising the child and
the county adoption agency, or the State Department of Social
Services when it is acting as an adoption agency, to prepare an
assessment that shall include:
   (A) Current search efforts for an absent parent or parents.
   (B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
   (C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
   (D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and Section 361.4.
   (E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative guardianship
arrangements, unless the child's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
   (F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
   (G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
   (i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
   (ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
   (2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
   (B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
   (d) This section shall become operative January 1, 1999. If at any
hearing held pursuant to Section 366.26, a legal guardianship is
established for the minor with an approved relative caregiver, and
juvenile court dependency is subsequently dismissed, the minor shall
be eligible for aid under the Kin-GAP Program, as provided for in
Article 4.5 (commencing with Section 11360) or Article 4.7
(commencing with Section 11385), as applicable, of Chapter 2 of Part
3 of Division 9.
   (e) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
   (f) The implementation and operation of the amendments to
subdivision (a) enacted at the 2005-06 Regular Session shall be
subject to appropriation through the budget process and by phase, as
provided in Section 366.35.

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Last modified: March 17, 2014