In re MARILYN A.

Filed 3/5/07 (reposted same date to correct processing lapse)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

STORY CONTINUED FROM PART I

The initial task for the court at the six-month review hearing is to determine whether the child should be returned to the custody of his or her parent or guardian. There is a statutory presumption the child will be returned to parental custody unless the court finds the childs return would create a substantial risk of detriment to the physical or emotional well-being of the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249.) At the review hearing held six months after the initial dispositional hearing, the court shall order the return of the child to the physical custody of his or her parent . . .  unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent . . . would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. ( 366.21, subd. (e).) In making this determination, the court is to consider the efforts or progress . . . demonstrated by the parent . . . and the extent to which he or she availed himself or herself [of] services provided. (Ibid.) The parents failure to participate regularly and make substantive progress in court-ordered treatment programs is prima facie evidence that return would be detrimental. (Ibid.)[1]

At this hearing the court must also determine whether reasonable reunification services have been offered or provided and evaluate the childs case plan and plan for permanent placement. (See Rule 5.710(e)(2)-(7).) If the child is not returned home, the court continues or modifies the reunification services being provided (rule 5.710(f)(11)) and schedules the 12-month permanency hearing pursuant to section 366.21, subdivision (f).[2]

b. The12-month hearing

At the section 366.21, subdivision (f), permanency review hearing, to be held within 12 months from the date the child enters foster care, the court again determines whether the child should be returned to the custody of his or her parent or guardian; and the same statutory presumption that the child will be returned home applies. ( 366.21, subd. (f); Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249.) If the child is not returned to his or her parent because the juvenile court finds a substantial risk of detriment to the child exists, the court must terminate reunification services and facilitate the alternative permanent plan (generally by setting a hearing for the selection and implementation of a permanent plan pursuant to section 366.26) unless reasonable services have not been offered or provided or there is a substantial probability of return of the child within 18 months from the date of the childs removal from his or her home. (Rule 5.715(3); Cynthia D., at p. 249 [At the 12-month review, if the court does not return the child and finds that there is no substantial probability of return to the parent within 18 months of the original removal order, the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 . . . .].)

If the court finds there is a substantial probability the child could be safely returned to the custody of his or her parent with additional reunification services, the court may extend the reunification period to a maximum of 18 months from the date of the original removal order ( 361.5, subd. (a), 6th par., 366.21, subd. (g)(1); Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 596) and set a further permanency review hearing pursuant to section 366.22. (Rules 5.715(d)(1), 5.720(a) [ 366.22 permanency review hearing must be held no later than 18 months from the date of the initial removal].)

c. The 18-month hearing

At the 18-month permanency review hearing the juvenile court either orders the return of a dependent child to parental custody or terminates reunification services and sets a hearing for the selection and implementation of a permanent plan pursuant to section 366.26.[3] ( 366.22, subd. (a); rule 5.720(c)(1) & (3).) Absent extraordinary circumstances, the 18-month review hearing constitutes a critical juncture at which the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children. [Citation.] (Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 596; see In re Elizabeth R., supra, 35 Cal.App.4th at p. 1788 [The Legislature has determined that the juvenile court must embrace or forsake family preservation at this point by circumscribing the courts options.].)

As was true at the six-month and 12-month review hearings, unless the court finds by a preponderance of the evidence that returning the child to the physical custody of his or her parents would create a substantial risk of detriment to the childs safety, protection or physical or emotional well-being, the court must order the child returned. ( 366.22, subd. (a); rule 5.720(c)(1).) If the child is not returned to a parent or legal guardian at the [18-month] permanency review hearing, the court shall order that a hearing be held pursuant to Section 366.26 in order to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child. . . . The court shall also order termination of reunification services to the parent or legal guardian. ( 366.22, subd. (a).) A finding of reasonable services offered or provided is not a precondition to ordering a section 366.26 hearing. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1017, fn. 10.)

3. The Juvenile Court May Order a Dependent Child Home at the Six-month Review Hearing While Continuing Court Supervision and Services

The fundamental question to be addressed at the six-month, 12-month and 18-month review hearings is whether the dependent child can be returned safely to the physical custody of his or her parent. At least in the context of the section 366.21, subdivision (e), six-month review hearing, there is no doubt that in answering that question the juvenile court properly considers whether continuing dependency jurisdiction and providing additional family maintenance services to the parent and child will facilitate the childs return to, and safe maintenance in, the home: If the child is returned [at the six-month review hearing], the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within 6 months. (Rule 5.710(e)(2); see Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings (CJER rev. 2005) 103.33, p. 103-44 [at the six-month review hearing, [i]f the child has been removed, the court may . . . [r]eturn the child and continue dependency with services to the child and family [citations].].)

To be sure, as the juvenile court observed in this proceeding, no language in section 366.21, subdivision (e), itself specifically sanctions continuing dependency jurisdiction and providing family maintenance services when a child in out-of-home placement is returned to his or her parent at the six-month review hearing. (The statute similarly makes no mention of terminating jurisdiction upon the return of the child to the physical custody of his or her parent.) However, the Judicial Councils interpretation of this statute in rule 5.710 (former rule 1460), quoted above, expressly authorizes continuing court supervision and ordering family maintenance services. [A]lthough not binding on the courts and invalid if contrary to statute, [a Judicial Council rule interpreting the dependency statutes] is entitled to great weight and will be overturned only if it is clearly erroneous. (Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1014 [upholding portion of former rule 1460(f)(1)(B) authorizing the juvenile court to terminate reunification services and set the matter for a permanency planning hearing whenever it finds by clear and convincing evidence the parent has failed to contact and visit the child for six months after reunification services have begun]; see In re Alanna A. (2005) 135 Cal.App.4th 555, 584-585 [approving interpretation of 366.21, subd. (e), in rule 5.710(f)(11)].)

Significantly, nothing in section 366.21, subdivision (e), or elsewhere in the statutes governing the dependency courts conduct of review hearings prohibits the court from returning the child to his or her parent and continuing court supervision with family maintenance services. Indeed, section 361.5, subdivision (a), seventh paragraph, provides in part, Physical custody of the child by the parents or guardians during the applicable time period under paragraph (1), (2), or (3) [specifying the duration of court-ordered family reunification services that may be provided to a child and his or her family] shall not serve to interrupt the running of the period. By precluding any tolling of the maximum period for family reunification services for the time a child has been returned home and family maintenance services are provided, the Legislature has plainly expressed both its awareness and approval of the widespread practice of returning a child in an out-of-home placement to the physical custody of his or her parent subject to on-going court supervision and the provision of family maintenance services. It has also recognized the unfortunate reality that ‑‑ as happened in this case[4]‑‑ the parent may subsequently lose custody of the child once again following the filing of a supplemental ( 387) or subsequent ( 342) petition. ( 364, subd. (e); see, e.g., Carolyn R. v. Superior Court (1995) 41 Cal.App.4th 159, 166 [When a juvenile court sustains a supplemental petition pursuant to section 387, the case does not return to square one with regard to reunification efforts. [Citations] Instead, the question becomes whether reunification efforts should resume. . . . [T]he court determines at what chronological stage of the 12‑ to 18-month period the case is for reunification purposes and then proceeds pursuant to section 366.21 or section 366.22 as appropriate.]; In re N. M. (2003) 108 Cal.App.4th 845, 854.)

Moreover, when a child has been declared a dependent of the juvenile court, the court is expressly authorized to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child . . . . ( 362, subd. (a); see also 245.5 [In addition to all other powers granted by law, the juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of . . . the minor. These orders may concern the care, supervision, custody, conduct, maintenance, and support of the minor . . . .].) Permitting a dependent child to return home while retaining jurisdiction and ordering the continuation (with or without modification) of services previously provided to ensure the childs safety plainly fall within this broad-ranging authority of the juvenile court. (In re Carmen M. (2006) 141 Cal.App.4th 478, 486 [ 362, subd. (a), and related provisions of juvenile law have been broadly interpreted to authorize wide variety of remedial orders intended to protect the safety and well-being of dependent children]; see In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104 [juvenile court has broad discretion to determine what would best serve dependent childs interests and enter appropriate orders to protect the child].)

Sound public policy further supports permitting the juvenile court to enter a home-of-parent order at the six-month review hearing while retaining jurisdiction and ordering family maintenance services. The Legislature has directed the juvenile court to preserve and strengthen the minors family ties whenever possible. ( 202, subd. (a).) Even after making the required findings and declaring a child a dependent of the juvenile court, a child may not be removed from the custody of his or her parent or guardian absent proof the child cannot be adequately protected by providing reasonable in-home services. ( 361, subd. (c); rule 5.695(d).) Once it becomes apparent a child initially in an out-of-home placement can safely return home if family maintenance services are made available, ordering that return, while continuing jurisdiction, furthers the legislative mandate to preserve the family whenever possible. (See 202, subd. (a) [when removal of a child is necessary, reunification of the minor with his or her family shall be a primary objective of the juvenile court].)

4. The Juvenile Court May Order a Dependent Child Home at the 12-month Review Hearing While Continuing Court Supervision

The language in section 366.21, subdivision (f), directing the court to return a dependent child to the physical custody of his or her parent or guardian unless that return would create a substantial risk of detriment to the safety or physical or emotional well-being of the child is identical to the language in section 366.21, subdivision (e). Accordingly, although rule 5.715 prescribing the conduct of the 12-month permanency hearing does not address the courts ability to return the child to his or her home and order continued dependency services, as does rule 5.710(e)(2) with respect to the six-month hearing, there is no reason to conclude the juvenile court does not have full authority under section 362, subdivision (a), as well as sections 202, subdivision (a) (declaring purpose of juvenile law), and 245.5 (general powers of juvenile court), to enter a home-of-parent order at the 12-month hearing, continue court jurisdiction and direct that family maintenance services be provided to the child and his or her parents. (See Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, 103.13, p. 103-26 [identifying among possible findings and orders at 12-month permanency hearing, [c]hild is returned home and dependency continued/not continued. [Citation.] If dependency is continued, court sets review in six months.].) As discussed, the Legislature certainly contemplated such an order with the anti-tolling provision in section 361.5, subdivision (a), seventh paragraph, which applies when a child is initially removed, returned home at a periodic review hearing and then re-detained based on the allegations in a supplemental petition. (See, e.g., Carolyn R. v. Superior Court, supra, 41 Cal.App.4th at p. 166.)

At the 12-month permanency review hearing, if the dependent child is not returned to the custody of his or her parent or guardian, the court is authorized to order additional reunification services if it finds a substantial probability the child will be returned and safely maintained in the home within the extended period (not to exceed 18 months from the date of the original removal). ( 366.21, subd. (g), 361.5, subd. (a), 6th par.) Particularly in light of the legislative directive that family preservation be a primary objective of the dependency system during these initial phases of the proceedings (see Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 248-249; In re Celine R., supra, 31 Cal.4th at p. 52), it would be anomalous at best to construe section 366.21, subdivision (f), to permit the court to maintain the child in an out-of-home placement while ordering additional reunification services but not to allow the court to return the child to his or her parent while providing continued court and social worker supervision and child welfare (family maintenance) services to ensure the childs safety. We decline to adopt such an incongruous interpretation of the statutory scheme.

5. The Juvenile Court Has Discretion To Enter a Home-of-parent Order at the 18-month Permanency Review Hearing While Continuing Court Supervision and Services

Section 366.22, subdivision (a), like section 366.21, subdivisions (e) and (f), contains a statutory presumption the child will be returned to parental custody unless the court finds the childs return would create a substantial risk of detriment to the physical or emotional well-being of the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 249 [discussing review hearings under all three provisions].) Also like section 366.21, subdivisions (e) and (f), section 366.22 does not address the juvenile courts discretion to return the child to his or her home and order continued dependency services. Nonetheless, finding the child may be returned to, and safely maintained in, his or her parents home at the 18-month permanency review hearing while retaining jurisdiction and directing that family maintenance services be provided to the child and his or her parent would appear to fit comfortably within the juvenile courts broad authority to make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child. ( 362, subd. (a); see Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, 103.13, p. 103-26 [identifying among possible findings and orders at 18-month permanency review hearing, [c]hild is returned home and dependency continued/not continued. [Citation.] If dependency is continued, court sets review in six months.].)

A significant difference between continuing child welfare services following a home-of-parent order at the six-month or 12-month review hearing and a similar order at the 18-month permanency review hearing, however, is that the section 366.22 hearing represents a critical juncture in dependency proceedings. (Mark N. v. Superior Court, supra,60 Cal.App.4th at p. 1015.) The cutoff date for fostering family reunification is the 18-month status review. At this hearing, the court must return children to their parents and thereby achieve the goal of family preservation or terminate services and proceed to devising a permanent plan for the children. (In re Elizabeth R., supra, 35 Cal.App.4th at p. 1788; Katie V. v. Superior Court, supra, 130 Cal.App.4th at p. 596.) Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Celine R., supra, 31 Cal.4th at p. 52.)

We do not believe this 18-month limit on family reunification services constrains the juvenile courts authority to order family maintenanceservices beyond that time for a child who has been returned to the custody of his or her parent. There is no statutory limit on the provision of family maintenance services if the court believes the objectives of the service plan are being met. (See 364, subd. (d), 16506; In re Joel T., supra, 70 Cal.App.4th at pp. 267-268.) There appears to be no reason, in either the language of the governing statutes or the public policy underlying the dependency system, to permit these child welfare services to continue for a family with a dependent child who has never been removed from the home and to deny those services to an otherwise identical family whose child was originally removed and then returned because of the parents substantial progress in completing their case plan.[5] Indeed, although the Legislature has directed in the anti-tolling provision of section 361.5, subdivision (a), seventh paragraph, that the combined period of family reunification and family maintenance services be considered in determining whether additional family reunification services may be provided ‑‑ at least to the extent family maintenance services were provided following the initial removal and subsequent return of a child to the custody of his or her parent or guardian (see In re N. M., supra, 108 Cal.App.4th at p. 854 [acknowledging argument can be made that family maintenance services should not be counted against 18-month period when child is not removed from parents custody until after services are provided] ‑‑ no similar mandate restricts the provision of family maintenance services beyond the 18-month date.[6]

6. A Section 364 Review Hearing May Be Held for a Dependent Child Who Has Been Returned To His or Her Parents Custody Following an Out-of-home Placement

In addition to noting the absence of express language in sections 361.21, subdivisions (e) and (f), or 361.22 authorizing the court to retain jurisdiction and order family maintenance services after returning a dependent child to his or her parent, the juvenile court in this case stated (as it had in other, similar cases according to the declarations submitted with the writ petition) it has no authority to set a section 364 review hearing after terminating an out-of-home placement and entering a home-of-parent order for a dependent child. It follows, therefore, if there can be no further review hearing for the child, the court must necessarily terminate its jurisdiction.

This narrow interpretation of the availability and scope of a section 364 review hearing is apparently based on language from several appellate cases ‑‑ and, in particular, from the recent opinion by Division Eight of this court in Janee W., supra, 140 Cal.App.4th at pages 1450 to 1451 ‑‑ suggesting section 364 applies only when a child has never been removed from the physical custody of the parent or guardian. (See also In re Sarah M., supra, 233 Cal.App.3d at p. 1493 [section 364 applies in cases where the dependent child has not been removed from the original custodial home.].) This analysis unnecessarily restricts the language of the statute itself, misreads the relevant case authority and disregards both an applicable Judicial Council rule and the broad authority of the juvenile court to make orders that further the best interests of dependent children.

The juvenile court must conduct a review hearing for every child who has been declared a dependent of the court at least every six months. (In re Natasha A., supra, 42 Cal.App.4th at p. 38; In re N. S., supra, 97 Cal.App.4th at p. 172; compare 366, subd. (a)(1) [The status of every dependent child in foster care shall be reviewed periodically as determined by the court but no less frequently than once every six months, as calculated from the date of the original dispositional hearing until the hearing described in Section 366.26 is completed.] with 364, subd. (d) [If the court retains jurisdiction it shall continue the matter to a specified date, not more than six months from the time of the hearing . . . .]; see also 42 U.S.C. 675(5)(B) [under federal law judicial or administrative review of each dependent childs case must be held no less than every six months].) Section 364, subdivision (a), directs the juvenile court to conduct an initial review hearing for a dependent child who has not been removed from the physical custody of his or her parent or guardian within six months of the original disposition hearing pursuant to section 358. However, by its terms a section 364 review hearing must be set following [e]very hearing at which an order is made either placing a child under the supervision of the juvenile court or retaining dependency jurisdiction, provided at that hearing no order is made removing the child from the physical custody of his or her parent or guardian. ( 364, subds. (a), (d).) In view of the Legislatures direction that we liberally construe the dependency laws to preserve and strengthen the minors family ties whenever possible ( 202, subd. (a)), we have no difficulty concluding a hearing at which an out-of-home placement is terminated and a home-of-parent order entered is the equivalent of a hearing in which the child is not removed from the physical custody of his or her parent or guardian within the meaning of section 364, subdivision (a). (See Cal. Judges Benchguide 103: Juvenile Dependency Review Hearings, supra, 103.13, p. 103-26 [identifying among possible findings and orders at six-,12- and 18-month review hearings continuing dependency jurisdiction and setting further review hearing pursuant to 364, subd. (d)].) Moreover, as the court explained in In re N. S., supra, 97 Cal.App.4th 167, to interpret section 364 narrowly, as suggested by the juvenile court in this case, would leave an unacceptable gap in the statutory scheme: Unless section 364 applies, there is no statute governing the courts review hearings for a minor who has been removed from, but is subsequently placed back in, parental custody. (Id. at p. 172.)

This commonsense construction of section 364 and related dependency statutes is further supported by rule 5.710(e)(2), which provides, as to a child who has been returned to the custody of a parent or guardian after initially being removed, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within 6 months. That further review hearing can be conducted only pursuant to section 364. (See In re N. S., supra, 97 Cal.App.4th at p. 172.)[7] In addition, rule 5.710(a)(2) directs the juvenile court to conduct a section 364 review hearing every six months for any dependent child who remains in the custody of the parent or guardian. The rule draws no distinction between a child who was never removed from the custody of his or her parent and one who remains in his or her parents custody at the time of the review hearing following an initial removal and subsequent return home. (Cf. Sara M. v. Superior Court, supra, 36 Cal.4th at p. 1014 [recognizing significant persuasive force of interpretation of dependency statutes contained in the California Rules of Court].)

None of the appellate decisions discussing when section 364 properly governs a periodic review hearing in the juvenile court mandates a different result. In JaneeW. Division Eight considered only whether section 364 or section 361.2 provides the applicable procedural rules in reviewing the status of dependent children who had been taken from the physical custody of their mother and eventually placed with their father, with whom they did not live at the time they were first detained. Under section 361.2, subdivision (a), when the juvenile court orders the removal of a child from a parents home and determines a noncustodial parent desires custody, it must place the child with that parent unless it finds that doing so poses a risk of harm to the child. Although section 361.2 by its terms applies only when the juvenile court first takes jurisdiction of a child, relying upon the relevant rules of court (former rules 1460(h) [now rule 5.710(h)], 1461(c)(2) [now rule 5.715(c)(2)]), Division Eight held its procedures can be invoked at either the six-month or 12-month review hearings, as occurred in the case before it. (Janee W., supra, 140 Cal.App.4th at p. 1451.) Accordingly, the question whether to terminate jurisdiction should have been determined under the standards of section 361.2, not section 364.[8] The courts explanation of its holding ‑‑ Section 364 applies when a dependency court determines that jurisdiction under section 300 is appropriate, but the child is not removed from the physical custody of his or her parent or guardian . . . . [Citation.] (Janee W., at p. 1450) ‑‑ is not authority for the proposition the juvenile court may not set a section 364 review hearing after entering a home-of-parent order at the six-month, 12-month or 18-month review hearing. (Chevron U.S.A., Inc. v. Workers Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [it is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.]; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [same].)

The issue in In re Sarah M., supra, 233 Cal.App.3d 1486, was similar to that presented by Janee W.: Is termination of dependency jurisdiction with respect to a child removed from her custodial parent and placed with a nonoffending, noncustodial parent (here, her father and stepmother) properly determined under the standards of section 364 or 361.2? (Sarah M., at pp. 1493-1494.) The court concluded section 361.2 applied and held before terminating its jurisdiction the juvenile court must make a factual finding that supervision is no longer necessary. (Sarah M., at p. 1498.) As in Janee W., the general language in In re Sarah M. concerning the authority of the court to conduct a section 364 hearing when a child has initially been removed from the home of a custodial parent simply does not apply to the issue presented by Bridget and Christophers writ petition: whether a section 364 review hearing may be set for a child who has been removed from, but then returned to, parental custody.[9]

In sum, whether at the six-month, 12-month or 18-month review hearing, the juvenile court has the authority, in its discretion, to return a dependent child to the physical custody of his or her parent or guardian and either to terminate its jurisdiction or to retain dependency jurisdiction and order family maintenance services to ensure the safety and physical and emotional well-being of the child.[10] In their petition to this court, Bridget and Christopher present powerful arguments as to why, although a home-of-parent order was appropriate, continued court supervision is necessary for their protection and to ensure the conditions leading to dependency jurisdiction are not likely to recur. The juvenile court erred in refusing to consider those arguments, advanced initially before it by the Department and supported by Bridget and Christopher. Accordingly, we grant the petition, vacate the order terminating dependency jurisdiction and return the matter to the juvenile court for an appropriate exercise of its discretion in determining whether to retain jurisdiction in this case.

DISPOSITION

Let a peremptory writ of mandate issue directing respondent juvenile court to vacate that portion of its order of November 6, 2006 terminating jurisdiction over Bridget A. and Christopher A., as well as their siblings Joseph and Xochitl E., to issue a new order setting a hearing to determine whether continued court supervision is necessary to ensure the childrens safety in the home of their mother and to conduct further proceedings not inconsistent with this opinion.

CERTIFIED FOR PUBLICATION

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

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Analysis and review provided by San Diego County Property line attorney.

[1] The question whether to return the child to parental custody properly focuses on the well-being of the child at the time of the review hearing: [P]lacement must continue regardless of whether that detriment mirrors the harm which had required the childs removal from parental custody. (In re Joseph B. (1996) 42 Cal.App.4th 890, 900.)

[2] Different rules apply at the six-month hearing stage if the dependent child was under the age of three on the date of the initial removal: If . . . the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 [to terminate parental rights] within 120 days. ( 366.21, subd. (e); rule 5.710(f)(1); see Jessica A. v. Superior Court (2004) 124 Cal.App.4th 636, 642.) Section 366.21, subdivision (e), further provides, If, however, the court finds there is a substantial probability that the child, who was under the age of three years on the date of initial removal . . .  may be returned to his or her parent . . . within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing. (Jessica A., at pp. 642, 644-645.)

[3] The juvenile court need not schedule a section 366.26 hearing if it finds by clear and convincing evidence the child is not a proper subject for adoption and there is no one willing to accept legal guardianship. ( 366.22, subd. (a); rule 5.720(c)(3)(A).)

[4] At the 12-month hearing held on June 6, 2005, after finding Xochitl C. and Antonio E. in compliance with their case plans, the juvenile court returned all five children to their physical custody, retained jurisdiction and ordered family maintenance services and set a further review hearing pursuant to section 364 for December 2005. The Department filed its subsequent petition pursuant to section 342 and re-detained the children prior to the date of the section 364 hearing.

[5] We are aware the final sentence of section 361.5, subdivision (a), seventh paragraph, provides, If at the end of the applicable time period, a child cannot be safely returned to the care and custody of a parent or guardian without court supervision, but the child clearly desires contact with the parent or guardian, the court shall take the childs desire into account in devising a permanency plan. This language was added to a prior version of section 361.5, subdivision (a), in slightly different form in 1992 as part of Senate Bill No. 1564 (Stats. 1992, ch. 455, 2), which dealt primarily with including a new subdivision (b)(6) in section 361.5, permitting the juvenile court to deny reunification services to an offending parent who had inflicted severe sexual abuse or severe physical harm on his or her child if the court determined it would not benefit the child to pursue reunification services with that parent. Our review of the legislative history persuades us this language was intended only to ensure the juvenile court consider a childs desire to have continuing contact with his or her parent after reunification services have been terminated, and does not constitute a statutory bar to the court continuing dependency jurisdiction when returning a child to the physical custody of his or her parent at the section 366.22 hearing. (See, e.g., Assem. Com. on Judiciary, Rep. on Sen. Bill No. 1564 (1991-1992 Reg. Sess.) as amended July 6, 1992, p. 2 [proposed legislation provides a court shall take a childs wishes into account when devising a permanency plan for a child, where at the end of the 18 month reunification period, a child cannot be safely returned to the custody of a parent/guardian without court supervision, but the child clearly desires contact with the parent/guardian].)

[6] Even if the 18-month limit on reunification services set forth in section 361.5, subdivision (a), sixth paragraph, were to some extent applicable in this context, the juvenile court would retain at least limited discretion to consider, as a middle option between leaving the child in an out-of-home placement and terminating services, on the one hand, and returning the child to his or her parents custody and terminating dependency jurisdiction, on the other hand, entering a home-of-parent order and an order for family maintenance services. [T]he Legislature never intended a strict enforcement of the 18-month limit to override all other concerns including preservation of the family when appropriate. (Mark N. v. Superior Court, supra, 60 Cal.App.4th at p. 1016; see  362, subd. (a); cf. In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799 [ 352, authorizing continuance of any hearing if not contrary to interests of dependent child, provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by a continuance of the 18-month review hearing]; Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1465-1466 [recognizing juvenile court has discretion to continue reunification services past 18-month date in limited circumstances; we think a compelling argument could be made [by petitioner] in favor of extending the 18-month hearing].)

[7] The juvenile court utilized this procedure in this case in June 2005 at the 12-month permanency review hearing under section 366.21, subdivision (f), when it entered home-of-parent orders for Bridget, Christopher and their three siblings, retained jurisdiction and set a further review hearing for December 5, 2005 pursuant to section 364.

[8] When deciding whether to terminate dependency jurisdiction under section 361.2 following placement of a child with a previously noncustodial parent, the court determines only whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364. (Compare 361.2, subd. (b)(1)-(3), and In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135 with 364, subd. (c), and Janee W., supra, 140 Cal.App.4th at p. 1451.)

[9] The court in In re Sarah M., supra, 233 Cal.App.3d at page 1493 cited In re Esperanza G. (1985) 173 Cal.App.3d 358, 360, for its general statement regarding the unavailability of a section 364 hearing when a child has been removed from the original custodial home. In Esperanza G. Division Four of this court held only that the standards for terminating jurisdiction set forth in section 364 do not apply to a dependent child who remains in an out-of-home foster placement. (See In re N. S., supra, 97 Cal.App.4th at p. 171 [the court in Esperanza G. merely quoted section 364 and did not analyze whether it applied to minors who have been removed from, but are returned to parental custody].)

[10] Of course, if the Legislature disagrees with our construction of sections 364 and 366.22, it remains free to amend the statutes to better reflect its intent. (See Chevron U.S.A., Inc. v. Workers Comp. Appeals Bd., supra,19 Cal.4th at p. 1199; In re Summer H., supra, 139 Cal.App.4th at p. 1334.)