BILL NUMBER: AB 329 CHAPTERED
BILL TEXT
CHAPTER 510
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 1997
APPROVED BY GOVERNOR SEPTEMBER 28, 1997
PASSED THE ASSEMBLY SEPTEMBER 3, 1997
PASSED THE SENATE AUGUST 28, 1997
AMENDED IN SENATE JUNE 23, 1997
AMENDED IN SENATE JUNE 10, 1997
AMENDED IN ASSEMBLY MARCH 31, 1997
INTRODUCED BY Assembly Member Caldera
FEBRUARY 18, 1997
An act to amend Section 45 of the Code of Civil Procedure, and to
amend Sections 252 and 366.26 of the Welfare and Institutions Code,
relating to minors.
LEGISLATIVE COUNSEL'S DIGEST
AB 329, Caldera. Dependent children.
Existing law provides a comprehensive body of law governing the
protection and placement of minors who are, or who may become,
dependent children of the juvenile court. A referee may hear cases
and issue orders and findings in matters concerning dependent
children, as specified. Existing law authorizes a minor or parent or
guardian to apply to the juvenile court for a rehearing directed to
all or any part of the order and findings of a referee.
Existing law also provides for the removal of a minor from the
custody or control of a parent. An appeal from a judgment freeing a
minor who is a dependent child of the juvenile court from parental
custody and control has precedence over all other cases before the
court hearing the appeal.
Existing law requires that reunification services be provided to
parents in specified dependency cases. However, a court is
authorized to terminate these services under certain conditions, and
to terminate parental rights.
In addition, a court must place a child with a legal guardian or
in long-term foster care if the court finds that neither adoption nor
termination of parental rights is in the interest of the minor, or
if the court finds that specified conditions, such as the failure to
provide reasonable reunification services, are applicable, as
specified.
This bill would provide that an appeal from a judgment denying a
recommendation to free a minor from parental custody or control shall
also have precedence over other cases before the court hearing the
appeal. The bill would also authorize a county welfare department to
apply to the juvenile court for a rehearing of an order and findings
of a referee in a dependency proceeding.
The bill would also revise the last specified provision of
existing law described above by directing a court to place a child
with a legal guardian or in long-term foster care only where the
court finds that adoption or termination of parental rights is not in
the interest of the minor because one of the specified conditions
applies.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 45 of the Code of Civil Procedure is amended to
read:
45. An appeal from a judgment freeing a minor who is a dependent
child of the juvenile court from parental custody and control, or
denying a recommendation to free a minor from parental custody or
control, shall have precedence over all cases in the court to which
an appeal in the matter is taken. In order to enable the child to be
available for adoption as soon as possible and to minimize the
anxiety to all parties, the appellate court shall grant an extension
of time to a court reporter or to counsel only upon an exceptional
showing of good cause.
SEC. 2. Section 252 of the Welfare and Institutions Code is
amended to read:
252. At any time prior to the expiration of 10 days after service
of a written copy of the order and findings of a referee, a minor or
his or her parent or guardian or, in cases brought pursuant to
Section 300, the county welfare department may apply to the juvenile
court for a rehearing. That application may be directed to all or to
any specified part of the order or findings, and shall contain a
statement of the reasons the rehearing is requested. If all of the
proceedings before the referee have been taken down by an official
reporter, the judge of the juvenile court may, after reading the
transcript of those proceedings, grant or deny the application. If
proceedings before the referee have not been taken down by an
official reporter, the application shall be granted as of right. If
an application for rehearing is not granted, denied, or extended
within 20 days following the date of its receipt, it shall be deemed
granted. However, the court, for good cause, may extend the period
beyond 20 days, but not in any event beyond 45 days, following the
date of receipt of the application, at which time the application for
rehearing shall be deemed granted unless it is denied within that
period. All decisions to grant or deny the application, or to extend
the period, shall be expressly made in a written minute order with
copies provided to the minor or his or her parent or guardian, and to
the attorneys of record.
SEC. 3. Section 366.26 of the Welfare and Institutions Code, as
amended by Section 5.5 of Chapter 1083 of the Statutes of 1996, is
amended to read:
366.26. (a) This section applies to minors who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360 on or after January 1, 1989. The procedures specified
herein are the exclusive procedures for conducting these hearings;
Part 2 (commencing with Section 3020) of Division 8 of the Family
Code is not applicable to these proceedings. For minors who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360 on or after January 1, 1989, this
section and Sections 8604, 8605, 8606, and 8700 of the Family Code
and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12
of the Family Code specify the exclusive procedures for permanently
terminating parental rights with regard to, or establishing legal
guardianship of, the minor while the minor is a dependent child of
the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
minors who are dependents of the juvenile court, the court, in order
to provide stable, permanent homes for these minors, shall review the
report as specified in Section 361.5, 366.21, or 366.22, shall
indicate that the court has read and considered it, shall receive
other evidence that the parties present, including, but not limited
to, the parent's or guardian's failure to cooperate, except for good
cause, in the provision of services specified in the child welfare
services case plan, and then shall do one of the following:
(1) Permanently terminate the rights of the parent or parents and
order that the minor be placed for adoption and, upon the filing of a
petition for adoption in the juvenile court, order that a hearing be
set. The court shall proceed with the adoption after the appellate
rights of the natural parents have been exhausted.
(2) Without permanently terminating parental rights, identify
adoption as the permanent placement goal and order that efforts be
made to locate an appropriate adoptive family for the minor within a
period not to exceed 90 days.
(3) Without permanently terminating parental rights, appoint a
legal guardian for the minor and issue letters of guardianship.
(4) Order that the minor be placed in long-term foster care,
subject to the regular review of the juvenile court.
In choosing among the above alternatives the court shall proceed
pursuant to subdivision (c).
(c) At the hearing the court shall proceed pursuant to one of the
following procedures:
(1) The court shall terminate parental rights only if it
determines by clear and convincing evidence that it is likely that
the minor will be adopted based upon the assessment made pursuant to
subdivision (i) of Section 366.21 or subdivision (b) of Section
366.22. If the court so determines, the findings pursuant to
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, or the findings
pursuant to subdivision (e) of Section 366.21 that the whereabouts of
a parent have been unknown for six months or that the parent has
failed to visit or contact the minor for six months or that the
parent has been convicted of a felony indicating parental unfitness,
or pursuant to Section 366.21 or 366.22 that a minor cannot or should
not be returned to his or her parent or guardian, shall then
constitute a sufficient basis for termination of parental rights
unless the court finds that termination would be detrimental to the
minor due to one of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the minor and the minor would benefit from
continuing the relationship.
(B) A minor 12 years of age or older objects to termination of
parental rights.
(C) The minor is placed in a residential treatment facility,
adoption is unlikely or undesirable, and continuation of parental
rights will not prevent finding the child a permanent family
placement if the parents cannot resume custody when residential care
is no longer needed.
(D) The minor is living with a relative or foster parent who is
unable or unwilling to adopt the minor because of exceptional
circumstances, which do not include an unwillingness to accept legal
or financial responsibility for the minor, but who is willing and
capable of providing the minor with a stable and permanent
environment and the removal of the minor from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the minor. This subparagraph does not apply
to any minor, who is living with a nonrelative and who is either (i)
under six years of age or (ii) a member of a sibling group where at
least one minor is under six years of age and the siblings are, or
should be, permanently placed together.
(2) The court shall not terminate parental rights if at each and
every hearing at which the court was required to consider reasonable
efforts or services, the court has found that reasonable efforts were
not made or that reasonable services were not offered or provided.
(3) If the court finds that termination of parental rights would
not be detrimental to the minor pursuant to paragraph (1) and that
the minor has a probability for adoption but is difficult to place
for adoption and there are no prospective adoptive homes available to
the minor, the court may identify adoption as the permanent
placement goal and without terminating parental rights, order that
efforts be made to locate an appropriate adoptive family for the
minor for a period not to exceed 90 days. During this 90-day period,
the public agency responsible for seeking adoptive parents, for each
minor shall, to the extent possible, contact other private and
public adoption agencies regarding the availability of the minor for
adoption. During the 90-day period, the public agency shall conduct
the search for adoptive parents in the same manner as prescribed for
children in Sections 8708 and 8709 of the Family Code. At the
expiration of this period, another hearing shall be held and the
court shall proceed pursuant to paragraph (1), (3), or (4) of
subdivision (b). For purposes of this section, a minor may only be
found to be difficult to place for adoption if there are no
prospective adoptive homes available to the minor because of the
minor's membership in a sibling group, or the presence of a diagnosed
medical, physical, or mental handicap, or the minor is aged seven
years or more, and evidence presented to the court in the assessment
made pursuant to subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22 indicates that the presence and severity of one or
more of these factors renders the minor difficult to place.
(4) If the court finds that adoption of the minor or termination
of parental rights is not in the interest of the minor because one of
the conditions in subparagraph (A), (B), (C), or (D) of paragraph
(1) or in paragraph (2) applies, the court shall either order that
the present caretakers or other appropriate persons shall become
legal guardians of the minor or order that the minor remain in
long-term foster care. Legal guardianship shall be considered before
long-term foster care, if it is in the best interests of the minor
and if a suitable guardian can be found. When the minor is living
with a relative or a foster parent who is willing and capable of
providing a stable and permanent environment, but not willing to
become a legal guardian, the minor shall not be removed from the home
if the court finds the removal would be seriously detrimental to the
emotional well-being of the minor because the minor has substantial
psychological ties to the relative caretaker or foster parents. The
court shall also make an order for visitation with the parents or
guardians unless the court finds by a preponderance of the evidence
that the visitation would be detrimental to the physical or emotional
well-being of the minor.
(5) If the court finds that the minor should not be placed for
adoption, that legal guardianship shall not be established, and that
there are no suitable foster parents except exclusive-use homes
available to provide the minor with a stable and permanent
environment, the court may order the care, custody, and control of
the minor transferred from the county welfare department or probation
department to a licensed foster family agency. The court shall
consider the written recommendation of the county welfare director or
chief probation officer regarding the suitability of such a
transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the minor in a
suitable licensed or exclusive-use home which has been certified by
the agency as meeting licensing standards. The licensed foster
family agency shall be responsible for supporting the minor and for
providing appropriate services to the minor, including those services
ordered by the court. Responsibility for the support of the minor
shall not, in and of itself, create liability on the part of the
foster family agency to third persons injured by the minor. Those
minors whose care, custody, and control are transferred to a foster
family agency shall not be eligible for foster care maintenance
payments or child welfare services, except for emergency response
services pursuant to Section 16504.
(d) The proceeding for the appointment of a guardian for a minor
who is a dependent of the juvenile court shall be in the juvenile
court. If the court finds pursuant to this section that legal
guardianship is the appropriate permanency plan, it shall appoint the
legal guardian and issue letters of guardianship. The assessment
prepared pursuant to subdivision (g) of Section 361.5, subdivision
(i) of Section 366.21, and subdivision (b) of Section 366.22 shall be
read and considered by the court prior to the appointment, and this
shall be reflected in the minutes of the court. The person preparing
the assessment may be called and examined by any party to the
proceeding.
(e) The proceeding for the adoption of a minor who is a dependent
of the juvenile court shall be in the juvenile court if the court
finds pursuant to this section that adoption is the appropriate
permanency plan and the petition for adoption is filed in the
juvenile court. Upon the filing of a petition for adoption pursuant
to Section 8714 of the Family Code, the juvenile court shall order
that an adoption hearing be set. The court shall proceed with the
adoption after the appellate rights of the natural parents have been
exhausted. The full report required by Section 8715 of the Family
Code shall be read and considered by the court prior to the adoption
and this shall be reflected in the minutes of the court. The person
preparing the report may be called and examined by any party to the
proceeding. It is the intent of the Legislature, pursuant to this
subdivision, to give potential adoptive parents the option of filing
in the juvenile court the petition for the adoption of a minor who is
a dependent of the juvenile court. Nothing in this section is
intended to prevent the filing of such a petition for adoption in any
other court as permitted by law, instead of in the juvenile court.
(f) At the beginning of any proceeding pursuant to this section,
if the minor or the parents are not being represented by previously
retained or appointed counsel, the court shall proceed as follows:
(1) The court shall consider whether the interests of the minor
require the appointment of counsel. If the court finds that the
interests of the minor do require this protection, the court shall
appoint counsel to represent the minor. If the court finds that the
interests of the minor require the representation of counsel, counsel
shall be appointed whether or not the minor is able to afford
counsel. The minor shall not be present in court unless the minor so
requests or the court so orders.
(2) If a parent appears without counsel and is unable to afford
counsel, the court shall appoint counsel for the parent, unless this
representation is knowingly and intelligently waived. The same
counsel shall not be appointed to represent both the minor and his or
her parent. The public defender or private counsel may be appointed
as counsel for the parent.
(3) Private counsel appointed under this section shall receive a
reasonable sum for compensation and expenses, the amount of which
shall be determined by the court. The amount shall be paid by the
real parties in interest, other than the minor, in any proportions
the court deems just. However, if the court finds that any of the
real parties in interest are unable to afford counsel, the amount
shall be paid out of the general fund of the county.
(g) The court may continue the proceeding for not to exceed 30
days as necessary to appoint counsel, and to enable counsel to become
acquainted with the case.
(h) At all termination proceedings, the court shall consider the
wishes of the minor and shall act in the best interests of the minor.
The testimony of the minor may be taken in chambers and outside
the presence of the minor's parent or parents if the minor's parent
or parents are represented by counsel, the counsel is present, and
any of the following circumstances exist:
(1) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(2) The minor is likely to be intimidated by a formal courtroom
setting.
(3) The minor is afraid to testify in front of his or her parent
or parents.
After testimony in chambers, the parent or parents of the minor
may elect to have the court reporter read back the testimony or have
the testimony summarized by counsel for the parent or parents.
The testimony of a minor also may be taken in chambers and outside
the presence of the guardian or guardians of a minor under the
circumstances specified in this subdivision.
(i) Any order of the court permanently terminating parental rights
under this section shall be conclusive and binding upon the minor
person, upon the parent or parents and upon all other persons who
have been served with citation by publication or otherwise as
provided in this chapter. After making such an order, the court
shall have no power to set aside, change, or modify it, but nothing
in this section shall be construed to limit the right to appeal the
order.
(j) If the court, by order or judgment declares the minor free
from the custody and control of both parents, or one parent if the
other does not have custody and control, the court shall at the same
time order the minor referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, no petition for adoption may be granted until the
appellate rights of the natural parents have been exhausted. The
State Department of Social Services or licensed adoption agency shall
be responsible for the custody and supervision of the minor and
shall be entitled to the exclusive care and control of the minor at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the minor, who
shall serve until the minor is adopted.
(k) Notwithstanding any other provision of law, the application of
any person who, as a relative caretaker or foster parent, has cared
for a dependent child for whom the court has approved a permanent
plan for adoption, or who has been freed for adoption, shall be given
preference with respect to that minor over all other applications
for adoptive placement if the agency making the placement determines
that the minor has substantial emotional ties to the relative
caretaker or foster parent and removal from the relative caretaker or
foster parent would be seriously detrimental to the minor's
emotional well-being.
As used in this subdivision, "preference" means that the
application shall be processed and, if satisfactory, the family study
shall be completed before the processing of the application of any
other person for the adoptive placement of the minor.
(l) (1) An order by the court that a hearing pursuant to this
section be held is not appealable at any time unless all of the
following applies:
(A) A petition for extraordinary writ review was filed in a timely
manner.
(B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record.
(C) The petition for extraordinary writ review was summarily
denied or otherwise not decided on the merits.
(2) Failure to file a petition for extraordinary writ review
within the period specified by rule, to substantively address the
specific issues challenged, or to support that challenge by an
adequate record shall preclude subsequent review by appeal of the
findings and orders made pursuant to this section.
(3) The Judicial Council shall adopt rules of court, effective
January 1, 1995, to ensure all of the following:
(A) A trial court, after issuance of an order directing a hearing
pursuant to this section be held, shall advise all parties of the
requirement of filing a petition for extraordinary writ review as set
forth in this subdivision in order to preserve any right to appeal
in these issues. This notice shall be made orally to a party if they
are present at the time of the making of the order or by first-class
mail by the clerk of the court to the last known address of a party
not present at the time of the making of the order.
(B) The prompt transmittal of the records from the trial court to
the appellate court.
(C) That adequate time requirements for counsel and court
personnel exist to implement the objective of this subdivision.
(D) That the parent or guardian, or their trial counsel or other
counsel, is charged with the responsibility of filing a petition for
extraordinary writ relief pursuant to this subdivision.
(4) The intent of this subdivision is to do both of the following:
(A) Make every reasonable attempt to achieve a substantive and
meritorious review by the appellate court within the time specified
in Sections 366.21 and 366.22 for holding a hearing pursuant to this
section.
(B) Encourage the appellate court to determine all writ petitions
filed pursuant to this subdivision on their merits.
(5) This subdivision shall only apply to cases in which an order
to set a hearing pursuant to this section is issued on or after
January 1, 1995.
(m) This section shall remain in effect only until January 1,
1999, and as of that date is repealed, unless a later enacted
statute, which is enacted on or before January 1, 1999, deletes or
extends that date.
SEC. 4. Section 366.26 of the Welfare and Institutions Code, as
amended by Section 6.5 of Chapter 1083 of the Statutes of 1996, is
amended to read:
366.26. (a) This section applies to minors who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360 on or after January 1, 1989. The procedures specified
herein are the exclusive procedures for conducting these hearings;
Part 2 (commencing with Section 3020) of Division 8 of the Family
Code is not applicable to these proceedings. For minors who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360 on or after January 1, 1989, this
section and Sections 8604, 8605, 8606, and 8700 of the Family Code
and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12
of the Family Code specify the exclusive procedures for permanently
terminating parental rights with regard to, or establishing legal
guardianship of, the minor while the minor is a dependent child of
the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
minors who are dependents of the juvenile court, the court, in order
to provide stable, permanent homes for these minors, shall review the
report as specified in Section 361.5, 366.21, or 366.22, shall
indicate that the court has read and considered it, shall receive
other evidence that the parties present, including, but not limited
to, the parent's or guardian's failure to sign the child welfare
services case plan or failure to cooperate in the provision of
services specified in the child welfare services case plan, and then
shall do one of the following:
(1) Permanently terminate the rights of the parent or parents and
order that the minor be placed for adoption and, upon the filing of a
petition for adoption in the juvenile court, order that a hearing be
set. The court shall proceed with the adoption after the appellate
rights of the natural parents have been exhausted.
(2) Without permanently terminating parental rights, identify
adoption as the permanent placement goal and order that efforts be
made to locate an appropriate adoptive family for the minor for a
period not to exceed 90 days.
(3) Without permanently terminating parental rights, appoint a
legal guardian for the minor and issue letters of guardianship.
(4) Order that the minor be placed in long-term foster care,
subject to the regular review of the juvenile court.
In choosing among the above alternatives the court shall proceed
pursuant to subdivision (c).
(c) At the hearing the court shall proceed pursuant to one of the
following procedures:
(1) The court shall terminate parental rights only if it
determines by clear and convincing evidence that it is likely that
the minor will be adopted. If the court so determines, the findings
pursuant to subdivision (b) or paragraph 1 of subdivision (e) of
Section 361.5 that reunification services shall not be offered, or
the findings pursuant to subdivision (e) of Section 366.21 that the
whereabouts of a parent have been unknown for six months or that the
parent has failed to visit or contact the child for six months or
that the parent has been convicted of a felony indicating parental
unfitness, or, pursuant to Section 366.21 or 366.22, that a minor
cannot or should not be returned to his or her parent or guardian,
shall then constitute a sufficient basis for termination of parental
rights unless the court finds that termination would be detrimental
to the minor due to one of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the minor and the minor would benefit from
continuing the relationship.
(B) A minor 12 years of age or older objects to termination of
parental rights.
(C) The minor is placed in a residential treatment facility,
adoption is unlikely or undesirable, and continuation of parental
rights will not prevent finding the minor a permanent family
placement if the parents cannot resume custody when residential care
is no longer needed.
(D) The minor is living with a relative or foster parent who is
unable or unwilling to adopt the minor because of exceptional
circumstances, which do not include an unwillingness to accept legal
or financial responsibility for the minor, but who is willing and
capable of providing the minor with a stable and permanent
environment and the removal of the minor from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the minor. This subparagraph does not apply
to any minor who is living with a nonrelative and who is either (i)
under six years of age or (ii) a member of a sibling group where at
least one minor is under six years of age and the sibling is, or
should be, permanently placed together.
(2) The court shall not terminate parental rights if at each and
every hearing at which the court was required to consider reasonable
efforts or services, the court has found that reasonable efforts were
not made or that reasonable services were not offered or provided.
(3) If the court finds that termination of parental rights would
not be detrimental to the minor pursuant to paragraph (1) and that
the minor has a probability for adoption but is difficult to place
for adoption and there is no identified or available prospective
adoptive parent, the court may identify adoption as the permanent
placement goal and without terminating parental rights, order that
efforts be made to locate an appropriate adoptive family for the
minor for a period not to exceed 90 days. During this 90-day period,
the public agency responsible for seeking adoptive parents, for
each minor shall, to the
extent possible, contact other private and public adoption agencies
regarding the availability of the minor for adoption. During the
90-day period, the public agency shall conduct the search for
adoptive parents in the same manner as prescribed for children in
Sections 8708 and 8709 of the Family Code. At the expiration of this
period, another hearing shall be held and the court shall proceed
pursuant to paragraph (1), (3), or (4) of subdivision (b). For
purposes of this section, a minor may only be found to be difficult
to place for adoption if there is no identified or available
prospective adoptive parent for the minor because of the minor's
membership in a sibling group, or the presence of a diagnosed
medical, physical, or mental handicap, or the minor is the age of
seven years or more.
(4) If the court finds that adoption of the minor or termination
of parental rights is not in the interest of the minor because one of
the conditions in subparagraph (A), (B), (C), or (D) of paragraph
(1) or in paragraph (2) applies, the court shall either order that
the present caretakers or other appropriate persons shall become
legal guardians of the minor or order that the minor remain in
long-term foster care. Legal guardianship shall be considered before
long-term foster care, if it is in the best interests of the minor
and if a suitable guardian can be found. When the minor is living
with a relative or a foster parent who is willing and capable of
providing a stable and permanent environment, but not willing to
become a legal guardian, the minor shall not be removed from the home
if the court finds the removal would be seriously detrimental to the
emotional well-being of the minor because the minor has substantial
psychological ties to the relative caretaker or foster parents. The
court shall also make an order for visitation with the parents or
guardians unless the court finds by a preponderance of the evidence
that the visitation would be detrimental to the physical or emotional
well-being of the minor.
(5) If the court finds that the minor should not be placed for
adoption, that legal guardianship shall not be established, and that
there are no suitable foster parents except exclusive-use homes
available to provide the minor with a stable and permanent
environment, the court may order the care, custody, and control of
the minor transferred from the county welfare department or probation
department to a licensed foster family agency. The court shall
consider the written recommendation of the county welfare director or
chief probation officer regarding the suitability of such a
transfer. The transfer shall be subject to further court orders.
The licensed foster family agency shall place the minor in a
suitable licensed or exclusive-use home which has been certified by
the agency as meeting licensing standards. The licensed foster
family agency shall be responsible for supporting the minor and for
providing appropriate services to the minor, including those services
ordered by the court. Responsibility for the support of the minor
shall not, in and of itself, create liability on the part of the
foster family agency to third persons injured by the minor. Those
minors whose care, custody, and control are transferred to a foster
family agency shall not be eligible for foster care maintenance
payments or child welfare services, except for emergency response
services pursuant to Section 16504.
(d) The proceeding for the appointment of a guardian for a minor
who is a dependent of the juvenile court shall be in the juvenile
court. If the court finds pursuant to this section that legal
guardianship is the appropriate permanency plan, it shall appoint the
legal guardian and issue letters of guardianship. The assessment
prepared pursuant to subdivision (g) of Section 361.5, subdivision
(i) of Section 366.21, and subdivision (b) of Section 366.22 shall be
read and considered by the court prior to the appointment, and this
shall be reflected in the minutes of the court. The person preparing
the assessment may be called and examined by any party to the
proceeding.
(e) The proceeding for the adoption of a minor who is a dependent
of the juvenile court shall be in the juvenile court if the court
finds pursuant to this section that adoption is the appropriate
permanency plan and the petition for adoption is filed in the
juvenile court. Upon the filing of a petition for adoption, the
juvenile court shall order that an adoption hearing be set. The
court shall proceed with the adoption after the appellate rights of
the natural parents have been exhausted. The full report required by
Section 8715 of the Family Code shall be read and considered by the
court prior to the adoption and this shall be reflected in the
minutes of the court. The person preparing the report may be called
and examined by any party to the proceeding. It is the intent of the
Legislature, pursuant to this subdivision, to give potential
adoptive parents the option of filing in the juvenile court the
petition for the adoption of a minor who is a dependent of the
juvenile court. Nothing in this section is intended to prevent the
filing of such a petition for adoption in any other court as
permitted by law, instead of in the juvenile court.
(f) At the beginning of any proceeding pursuant to this section,
if the minor or the parents are not being represented by previously
retained or appointed counsel, the court shall proceed as follows:
(1) The court shall consider whether the interests of the minor
require the appointment of counsel. If the court finds that the
interests of the minor do require this protection, the court shall
appoint counsel to represent the minor. If the court finds that the
interests of the minor require the representation of counsel, counsel
shall be appointed whether or not the minor is able to afford
counsel. The minor shall not be present in court unless the minor so
requests or the court so orders.
(2) If a parent appears without counsel and is unable to afford
counsel, the court shall appoint counsel for the parent, unless this
representation is knowingly and intelligently waived. The same
counsel shall not be appointed to represent both the minor and his or
her parent. The public defender or private counsel may be appointed
as counsel for the parent.
(3) Private counsel appointed under this section shall receive a
reasonable sum for compensation and expenses, the amount of which
shall be determined by the court. The amount shall be paid by the
real parties in interest, other than the minor, in any proportions
the court deems just. However, if the court finds that any of the
real parties in interest are unable to afford counsel, the amount
shall be paid out of the general fund of the county.
(g) The court may continue the proceeding for not to exceed 30
days as necessary to appoint counsel, and to enable counsel to become
acquainted with the case.
(h) At all termination proceedings, the court shall consider the
wishes of the minor and shall act in the best interests of the minor.
The testimony of the minor may be taken in chambers and outside
the presence of the minor's parent or parents if the minor's parent
or parents are represented by counsel, the counsel is present, and
any of the following circumstances exist:
(1) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(2) The minor is likely to be intimidated by a formal courtroom
setting.
(3) The minor is afraid to testify in front of his or her parent
or parents.
After testimony in chambers, the parent or parents of the minor
may elect to have the court reporter read back the testimony or have
the testimony summarized by counsel for the parent or parents.
The testimony of a minor also may be taken in chambers and outside
the presence of the guardian or guardians of a minor under the
circumstances specified in this subdivision.
(i) Any order of the court permanently terminating parental rights
under this section shall be conclusive and binding upon the minor
person, upon the parent or parents and upon all other persons who
have been served with citation by publication or otherwise as
provided in this chapter. After making such an order, the court
shall have no power to set aside, change, or modify it, but nothing
in this section shall be construed to limit the right to appeal the
order.
(j) If the court, by order or judgment declares the minor free
from the custody and control of both parents, or one parent if the
other does not have custody and control, the court shall at the same
time order the minor referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, no petition for adoption may be granted until the
appellate rights of the natural parents have been exhausted. The
State Department of Social Services or licensed adoption agency shall
be responsible for the custody and supervision of the minor and
shall be entitled to the exclusive care and control of the minor at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the minor, who
shall serve until the minor is adopted.
(k) Notwithstanding any other provision of law, the application of
any person who, as a relative caretaker or foster parent, has cared
for a dependent child for whom the court has approved a permanent
plan for adoption, or who has been freed for adoption, shall be given
preference with respect to that minor over all other applications
for adoptive placement if the agency making the placement determines
that the minor has substantial emotional ties to the relative
caretaker or foster parent and removal from the relative caretaker or
foster parent would be seriously detrimental to the minor's
emotional well-being.
As used in this subdivision, "preference" means that the
application shall be processed and, if satisfactory, the family study
shall be completed before the processing of the application of any
other person for the adoptive placement of the minor.
(l) (1) An order by the court that a hearing pursuant to this
section be held is not appealable at any time unless all of the
following applies:
(A) A petition for extraordinary writ review was filed in a timely
manner.
(B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record.
(C) The petition for extraordinary writ review was summarily
denied or otherwise not decided on the merits.
(2) Failure to file a petition for extraordinary writ review
within the period specified by rule, to substantively address the
specific issues challenged, or to support that challenge by an
adequate record shall preclude subsequent review by appeal of the
findings and orders made pursuant to this section.
(3) The Judicial Council shall adopt rules of court, effective
January 1, 1995, to ensure all of the following:
(A) A trial court, after issuance of an order directing a hearing
pursuant to this section be held, shall advise all parties of the
requirement of filing a petition for extraordinary writ review as set
forth in this subdivision in order to preserve any right to appeal
in these issues. This notice shall be made orally to a party if they
are present at the time of the making of the order or by first-class
mail by the clerk of the court to the last known address of a party
not present at the time of the making of the order.
(B) The prompt transmittal of the records from the trial court to
the appellate court.
(C) That adequate time requirements for counsel and court
personnel exist to implement the objective of this subdivision.
(D) That the parent or guardian, or their trial counsel or other
counsel, is charged with the responsibility of filing a petition for
extraordinary writ relief pursuant to this subdivision.
(4) The intent of this subdivision is to do both of the following:
(A) Make every reasonable attempt to achieve a substantive and
meritorious review by the appellate court within the time specified
in Sections 366.21 and 366.22 for holding a hearing pursuant to this
section.
(B) Encourage the appellate court to determine all writ petitions
filed pursuant to this subdivision on their merits.
(5) This subdivision shall only apply to cases in which an order
to set a hearing pursuant to this section is issued on or after
January 1, 1995.
(m) This section shall be operative January 1, 1999.