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Name: M.V. v. Superior Court
Case #: G040676
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/30/2008

At the six-month review hearing for children under the age of three years at the date of removal, the operable standard under Welfare and Institutions Code section 366.21, subdivision (e) is whether there is a substantial probability the child may be returned to the parent–as opposed to the higher standard applicable at the 12-month review hearing, i.e., that there is a substantial probability the child will be returned. The mother of a two-year old boy was arrested for engaging in sexual intercourse with a 15-year-old male. Her son was taken into protective custody based upon her arrest and incarceration. She pled no contest to the dependency petition and reunification services were ordered. While in custody, the INS deported her to Mexico. At the six-month review hearing, the juvenile court terminated reunification services, and set a hearing pursuant to section 366.26. The Court of Appeal found it was error for the juvenile court to apply the test found in section 366.21, subdivision (g)(1). That section, applicable to 12-month reviews, requires a substantial probability that the child will be returned. Subdivision (e) on the other hand, charges the court with finding a substantial probability the child may be returned. The word “may” alters the typically high burden of “substantial probability.” Furthermore, the court is not limited to inquiring into the three factors set forth in rule 5.710(f)(1)(E). The court must weigh evidence to the factors identified in rule 5.710(f)(1)(E), along with any other relevant evidence, such as extenuating circumstances. Here, the mother’s detainment by the INS, deportation, and inability to visit her son and follow her prescribed case plan were all relevant circumstances in mitigation of the mother’s of evidence satisfying all three factors. Also, the error was not harmless because mother is no longer incarcerated, there is no evidence she’s addicted to illegal drugs, and she made significant efforts to show her desire to continue parenting her son.