California Welfare and Institutions Code (WIC) section 364 - Interpretation

In In re N. S. (2002) 97 Cal.App.4th 167, the child was removed from the parents' custody, but then placed with the mother and the father was ordered not to reside in the home. (In re N. S., supra, 97 Cal.App.4th at p. 170.) The Court stated that because the child was a dependent child of the juvenile court, the court was required to conduct review hearings every six months either under section 366.21 or under section 364. The court reasoned section 366.21 did not apply under the circumstances because the child was not out of parental custody, and, therefore, Welfare and Institutions Code section 364 must apply. The court stated, "unless Welfare and Institutions Code section 364 applies, there is no statute governing the court's review hearings for a minor who has been removed from, but is subsequently placed back in, parental custody." (In re N. S., supra, at p. 172.) The court reasoned: "If section 366.21 does not apply, then section 364 must." (Ibid.) We agree that Welfare and Institutions Code section 364, rather than section 366.21, governs subsequent review hearings when a dependent child has been placed back in the custody of one parent. Under section 364, subdivision (c) and California Rules of Court, rule 5.710 (e)(2), if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. "The court shall terminate its jurisdiction unless the social services agency establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that these conditions are likely to exist if supervision is withdrawn." ( 364, subd. (c); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304.) If, after returning the child to the parent's custody, the court determines continued supervision is required, it continues the matter for six months at which time it holds a review hearing. ( 364, subd. (c).) Section 364 refers to services only by stating the social worker is required to report on the services offered and the progress made by the family, and the failure of the parent to participate regularly in a treatment program is prima facie evidence that continued supervision is necessary. ( 364, subds. (b) and (c).) Rule 5.710 (e)(2) provides, "If the child is returned, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within six months." (rule 5.710 (e)(2).)