DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 1: Juvenile court Hearings and Reports
8-13  Selection and Implementation (366.26) Hearings
Juvenile court Hearings and Reports
8-13  Selection and Implementation (366.26) Hearings
Reference Points
Overview
Timing of the Hearing
Who Receives Notice of the Hearing
Who Does Not Receive Notice of the Hearing
Content and Service of Notice
Visitation Pending the .26 hearing
Evidence
Issues Not Relevant at the .26 Hearing
The Child's Wishes to Be Considered
Indian Child Welfare Act (ICWA) Applications
Assessment
Court Findings
Terminating Parental Rights
Adoption
Guardianship
Planned Permanent Living Arrangement


Reference Points
Effective Date: TBA
Last Updated: 12/16/08
 Legal Basis:
Popup Window Welfare and Institutions Code (WIC) § 366.26 and all subsections
Popup Window WIC § 294(a),(b),(c),(e)(6)
Popup Window WIC § 361; 361.3; 361.5(g); 361.7, 7(b),(c)
Popup Window WIC § 366.21(h), (i); 366.22(b)
Popup Window WIC § 224(a)(2);(b)
Popup Window WIC §16002.5(a), (b)
Popup Window California Rules of Court 5.725


Overview  

When the court terminates reunification services, it must set a "selection and implementation" hearing within 120 days. The purpose of a selection and implementation hearing is to put in place an appropriate permanent plan of adoption, legal guardianship, foster care or other planned permanent living arrangement for a child who cannot be returned home. The hearing is typically referred to as a “.26 hearing” because it is held under Welfare and Institutions Code (WIC) §366.26.  Once reunification services are terminated, the focus shifts to the needs of the child for permanency and stability.  At this hearing, the court can terminate parental rights if the child is likely to be adopted. 

At the .26 hearing, the issue before the court is limited to that of selecting and implementing a permanent plan for the child.  The social worker bears the burden of producing evidence to justify the recommendation for the plan.  The preference of the law is that a child be freed for adoption. 

The information in this chapter is taken from the California Center for Judicial Education and Research, California Judges Bench guide 104: Selection and Implementation Hearing.

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Timing of the Hearing  

The court must set a date for the .26 hearing to occur within 120 days from Disposition if no reunification services were offered, or within 120 days from the termination of reunification services at the:

  • Six-month review hearing; or
  • Twelve-month permanency hearing; or
  • Eighteen-month permanency review hearing.

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Who Receives Notice of the Hearing  

The social worker must give notice to the:

  • The mother
  • The fathers, presumed or alleged
  • The child if age 10 or older
  • Any known sibling and the sibling's caregiver and attorney if the sibling is a juvenile dependent or the subject of a dependency proceeding
  • The grandparents if the parents’ whereabouts are unknown
  • All counsel of record
  • Any unknown parent if publication notice is ordered by the court
  • The current caregiver for the child, including foster parents, relative caregivers, preadoptive parents, and nonrelative extended family members
    • Any person notified may attend all hearings and may submit any information he or she deems relevant to the court in writing.
  • The Court Appointed Child Advocate (CASA)
  • The De facto parent
  • The educational representative appointed for the child, if there is one (WIC §361).
  • The Child's identified Indian Tribe

See OPP Chapter 9-3.11: Noticing for Selection and Implementation (366.26) Hearings.

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Who Does Not Receive Notice of the Hearing  

Notice of the §366.26 hearing is not given to:

  • Any parent, presumed parent, or alleged parent who has relinquished the child for adoption and whose relinquishment was accepted and filed under FC §8700; nor
  • Any alleged parent who denied parentage and completed section 1 of Statement Regarding Parentage on form JV-505. 

If a child's paternity has been established, an alleged biological father is not entitled to Notice of a contested .26 hearing.

 

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Content and Service of Notice  

The Notice must advise the parents that at the .26 hearing the court is required to select and implement a permanent plan of adoption, guardianship, or foster care or other planned permanent living arrangement.

Service of notice must be complete at least 45 days before the hearing, or 30 days before the hearing if publication is ordered.  Service is deemed complete:

  • At the time of personal delivery,
  • Ten days after placement in the mail, or
  • At the end of the time prescribed by a publication order.


See OPP Chapter 9-3.11:  Noticing for Selection and Implementation (366.26) Hearings.

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Visitation between Parent and Child Pending the .26 hearing  

Visitation between the parent and child pending the .26 hearing continues, unless the court determines that it would be detrimental to the child.  Further, the court makes orders that enable the child to maintain important relationships, in addition to those with siblings, that are consistent with the child's best interest. [WIC §366.21(h)]

The visitation may be modified to meet current needs.  The social worker may recommend that the frequency and/or duration of visits be reduced.  For visitation to be denied while the .26 hearing is pending, the court must find that visitation would be detrimental by a preponderance of the evidence. [In re Manolito L. (2001) 90 CA4th 753, 761-762.]

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Evidence  

At the 366.26 hearing, in general, the court must:

  • State on the record that it has read and considered:
    • The case plan;
    • Any reports from the social worker, CASA volunteer, and the child’s caregiver; and
    • Any other evidence presented.
  • Determine that the social worker solicited and integrated input from the child, the child’s family, the child’s identified Indian tribe, and other interested parties into the case plan, or the court must order the social worker to do so unless each of these participants was unavailable, unwilling, or unable to provide input.
     
  • Find that a child age 12 or older and in permanent placement was given an opportunity to review, sign, and receive a copy of the case plan, or the court must order the agency to provide the child with such an opportunity. 

A social worker’s report containing hearsay is admissible at a .26 hearing. The admissibility of the report is not expressly conditioned on the social worker’s presence for cross-examination.

The standard of proof is a preponderance of the evidence except where the social worker recommends termination of parental rights, in which case the social worker must prove by clear and convincing evidence that it is likely that the minor will be adopted.  If the court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental under one of the exceptions listed in WIC §366.26(c)(1).

 

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Issues Not Relevant at the .26 Hearing  

The following items are not relevant at a .26 hearing:

  • The suitability of prospective adoptive parents
  • Whether the agency's decision on adoptive placement is appropriate
    • The court's review is limited to whether the agency abused its discretion or acted arbitrarily.
  • Evidence of the racial or ethnic match between the child and prospective adoptive parents
  • The parents' efforts to overcome the problems that led to the dependency
  • Whether the child can be returned to the parent’s custody
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Child's Wishes to Be Considered  

The child’s wishes to the extent that they are ascertainable must be considered. [WIC §366.26(h)(1).]

  • The child must be present in court if the child or his or her attorney so requests or the court orders.
  • If a child age 10 or older does not appear, the court must verify that the child was properly notified and ask why the child is absent.
  • The social worker’s report should address the child’s wishes and should note how and what questions were asked of the child.
    • The court may augment the report by questioning the child’s counsel and the CASA volunteer, if one has been assigned.
    • The court may also take the child’s testimony in chambers or make other arrangements to accommodate the child witness. [WIC §366.26(h)(3)]
    .
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ICWA Applications  
  • In cases involving claims that the child is an Indian child, courts must seek to promote stability and security of Indian tribes and families, comply with the Indian Child Welfare Act (ICWA), and seek to protect the best interests of the child. The court must encourage and protect the child’s membership in the tribe and his or her connection to the tribal community. ICWA must be applied once the tribe determines that the child is either a member or is eligible for membership in the tribe and is a biological child of a tribal member.

  • To terminate parental rights for a child of American Indian heritage, a judge must also find by proof beyond a reasonable doubt at the .26 hearing that continued custody by the parent or Indian custodian is likely to result in serious physical or emotional damage to the child.
  • Under ICWA, a court may not terminate parental rights unless it finds that active efforts have been made to provide services designed to prevent the breakup of the Indian family and that these services have been unsuccessful. The standard of proof for this finding is “clear and convincing," not by evidence beyond a reasonable doubt.
    • Active efforts must use the resources of the tribe and extended family, and the finding of active efforts must take into account prevailing cultural and social norms.
  • Evidence regarding detriment for termination must be supported by
    the testimony of a qualified expert witness. Federal guidelines call for the expert to be a member of the Indian child’s tribe; a lay expert witness with substantial experience in delivery of services, customs, standards, and practices; or a person with substantial education and experience in the area of specialty. The fact that a witness does not have demonstrated cross-cultural experience in Indian matters will not preclude the testimony of that witness. (In re Krystle C. (1994) 30 CA App. 4th 1778,1802.)


  • The court may not order guardianship for an Indian child unless the
    court finds by clear and convincing evidence that continued custody with the Indian parent or custodian is likely to cause serious emotional or physical harm. Testimony of a qualified expert witness is required. The court must also find that active efforts have been made to provide remedial services and rehabilitative programs and that these efforts have been unsuccessful.

 

  • The court may not order foster care placement for an Indian child
    unless it finds by clear and convincing evidence that continued custody with the Indian parent or custodian is likely to cause serious emotional or physical harm. Testimony of a qualified expert witness is required.  The court must also find that active efforts have been made to provide remedial services and rehabilitative programs and that these efforts have been unsuccessful.

 

See OPP Chapter 13-12: Indian Child Welfare Act (ICWA).

 

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Assessment  

Whenever a .26 hearing is ordered, the court directs the Department of Family and Children's Services (DFCS) to prepare an assessment to be submitted as a report to the court in standard format.

The court report:

  • Must be distributed to the parties and representatives at least 10 calendar days before the .26 hearing.
  • Must be filed with the court and be provided to parents/legal guardians and all attorneys.

A summary of the recommendations presented in the court report must be provided to the child's current caregiver, CASA, and if applicable, Indian tribe(s).

At the .26 hearing, the court states on the record that it has read and considered the assessment, as well as any CASA or caregiver report or other evidence.

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Court Findings  

At a .26 hearing, in general, the court must make one of the following findings and orders in the order of preference shown:

  1. Permanently terminate parental rights and order the child to be placed for adoption after finding by clear and convincing evidence that the child is likely to be adopted;

  2. Appoint a relative with whom the child currently resides as legal guardian.
     
  3. Identify adoption as the permanent placement goal without terminating parental rights and order that efforts be made to locate an appropriate adoptive family within 180 days;

  4. Appoint a non-relative legal guardian for the child and issue letters of guardianship; or

  5. Place the child in long-term foster care subject to periodic review.


As done at previous hearings, at the .26 hearing the court should also inquire about the child’s educational needs, determine who holds the educational rights for the child, and determine the child’s general and specific educational needs and identify a plan to meet those needs.   The court may limit a parent’s or current caretaker’s right to make educational decisions for the child, and if done, the court must immediately proceed to appoint an educational representative for the child. [WIC §361] If a guardian is appointed for the child, all educational rights and responsibilities transfer to the newly appointed guardian unless the court determines that the guardian is not able to act in the child’s best interests regarding education.

See OPP Chapter 16-2:  Educational Representatives and Special Education Surrogate Parents.

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Terminating Parental Rights  

To terminate parental rights, the court must find by clear and convincing evidence that it is likely that the child will be adopted.   In addition to finding adoptability, one of the following findings (made at an earlier hearing) generally provides a sufficient basis for termination:

  • Reunification services were not offered under WIC §361.5(b) (parents’ whereabouts unknown, parent mentally disabled, child reabused, parent caused another child’s death, etc.) or §361.5(e)(1) (parent institutionalized or incarcerated);

  • Under WIC §366.21(e), the parents’ whereabouts are unknown, the parent failed to contact the child for six months, or the parent was convicted of a felony indicating parental unfitness; or

  • The child cannot or should not be returned to the parent or guardian under WIC § 366.21 or §366.22 because of a substantial risk of detriment.



The court may not:

  • Terminate parental rights if, at each hearing at which the court was required to make findings concerning reasonable efforts or services, the court found that reasonable efforts were not made or that reasonable services were not offered or provided.
  • Terminate rights of only one parent unless:
    • That parent is the sole parent because the other parent died
    • The other parent had his or her rights terminated, or
    • The other parent relinquished custody to DFCS.

 

Even if the child is a proper subject for adoption and reunification services were not offered or have been terminated, the court may decide not to terminate parental rights if to do so will be detrimental to the child because:

  • The parents or guardians maintained regular visitation and contact with the child and the child would benefit from continuing that contact;
  • A child who is 12 years old or older objects to the termination of parental rights;

  • The child was placed in a residential treatment facility, adoption is not likely or desirable, and continuation of parental rights will not prevent the child from finding a stable placement if the parents cannot resume custody when the child no longer needs residential care;

  • The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child; or

  • There will be substantial interference with the relationship between the child and his or her siblings.
    • Children can be siblings because they share a biological parent, even though they do not share a legal parent.

To prove the beneficial parent-child relationship exception and overcome the preference for adoption, the parent must show more than frequent and loving contact, an emotional bond, pleasant visits, or an incidental benefit to the child. The parent must prove that he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [In re Dakota H. (2005) 132 CA4th 212, 229.]

 

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Adoption  

If parental rights are terminated, the court must order the child referred to DFCS for adoptive placement. Except as discussed below, DFCS is responsible for custody and supervision of the child until the adoption is granted. With the agency’s consent, the court may appoint a guardian to serve temporarily until the child is adopted.

 

If the child has substantial ties to the foster parent or relative caretaker and that person wishes to adopt the child, preference must be given to that person over other prospective adoptive parents if the placing agency determines that:

  • The child has such substantial emotional ties to that person; and
  • Removal would be seriously detrimental to the child’s well-being.


The preference for relative placement [WIC §361.3] may be outweighed by the child’s best interests. [In re Lauren R. (2007) 148 CA4th 841, 855 (the child's bond with a foster parent may require that placement with a relative be rejected); In re Stephanie M. (1994) 7 C4th 295, 321.] An ongoing caretaker may receive preferential consideration in the later stages of the proceedings. [In re Daniel D. (1994) 24 CA4th 1823, 1834.]

At the .26 hearing or anytime thereafter, the court may designate a current caretaker as a prospective adoptive parent if :

  • The child has lived with the caretaker for at least six months,
  • The caretaker currently expresses a commitment to adopt the child, and
  • The caretaker has taken at least one of the steps to facilitate the adoption process.

 

Even if terminating parental rights is desirable and will not be detrimental and there is a probability that the child is likely to be adopted, the court may find that the child is difficult to place and there is no identified or available prospective adoptive parent because:

  • The child is a member of a sibling group that should stay together;
  • The child has a diagnosed medical, mental, or physical handicap; or
  • The child is age seven or older.

In this case, the court may, without terminating parental rights, identify adoption as the permanent placement goal and order DFCS to make efforts to locate an appropriate adoptive family within 180 days. During the 180-day period, DFCS must, to the extent possible, ask each child who is 10 or older and who is placed in an out-of-home placement for at least six months to identify individuals who are important to the child. The social worker may also ask any other child for this information. At the end of this period, the court must hold another hearing and either terminate parental rights and proceed with adoption, or proceed with guardianship.

 

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Guardianship  

If the court finds that terminating parental rights or adoption is not in the child’s best interests or that termination will be detrimental to the child, the court may appoint a legal guardian at the .26 hearing and issue letters of guardianship.

The court must consider legal guardianship before foster care if it is in the child’s best interests and a suitable guardian is found. The court may not order a guardianship, however, if it requires moving the child from capable caretakers who do not wish to assume a guardianship role, and removal would seriously impair the child’s emotional well-being.

The court may appoint as guardian a relative who is unable to adopt the child due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, and removal of the child from the relative’s custody would be detrimental to the child’s emotional well-being.

In a case involving an Indian child, the definition of relative for guardianship purposes includes extended family members as defined by ICWA.

A child who is 10 or older must be asked to identify any adults who are important to him or her in order for DFCS to investigate and for the court to determine whether any of these adults would be appropriate legal guardians. Children under 10 years of age may be asked the same question as appropriate.

If the court appoints a guardian for the child, all educational rights transfer to the newly appointed guardian, unless the court determines that the guardian is not able to act in the child’s best interests regarding education.

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Permanent Planning Living Arrangement  

If the court finds that terminating parental rights or adoption is not in the child’s best interests or that termination will be detrimental to the child, but appointment of a legal guardian is not possible or appropriate, the court may order that the child be placed or remain in long-term foster care. This placement is subject to the regular review of the juvenile court.

If the court orders the child to remain in foster care, the court must identify a specific permanency goal.  The court must identify the specific foster care setting by name and identify unless it orders that the name and address of the foster home remain confidential.

 

If a dependent is a parent, the court tries to ensure as much as possible that the minor dependent and her children are placed together in a family-like setting, unless placement together poses a risk to the child.  The court also tries to provide access to appropriate services and education for minor parents and their children who live in foster care.

 

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