DFCS Online Policies & Procedures
DFCS Online Policies & Procedures
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.
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:
The social worker must give notice to the:
See OPP Chapter 9-3.11: Noticing for Selection and Implementation (366.26) Hearings.
Notice of the §366.26 hearing is not given to:
If a child's paternity has been established, an alleged biological father is not entitled to Notice of a contested .26 hearing.
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:
See OPP Chapter
9-3.11: Noticing for Selection and Implementation (366.26) Hearings.
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.]
At the 366.26 hearing, in general, the court must:
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).
The following items are not relevant at a .26 hearing:
The child’s wishes to the extent that they are ascertainable must be considered. [WIC §366.26(h)(1).]
See OPP Chapter 13-12: Indian Child Welfare Act (ICWA).
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:
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.
At a .26 hearing, in general, the court must make one of the following findings and orders in the order of preference shown:
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.
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:
The court may not:
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:
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.]
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 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 :
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:
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.
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.
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.
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.