BILL NUMBER: AB 1338 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY SEPTEMBER 7, 2005
PASSED THE SENATE SEPTEMBER 6, 2005
AMENDED IN SENATE SEPTEMBER 2, 2005
AMENDED IN SENATE AUGUST 30, 2005
AMENDED IN SENATE JULY 5, 2005
AMENDED IN ASSEMBLY MAY 27, 2005
AMENDED IN ASSEMBLY APRIL 28, 2005
INTRODUCED BY Assembly Member Nation
FEBRUARY 22, 2005
An act to amend Sections 317, 366.26, and 634 of the Welfare and
Institutions Code, relating to immigrant children.
LEGISLATIVE COUNSEL'S DIGEST
AB 1338, Nation Immigrant children.
(1) Existing law authorizes the juvenile court to adjudge a child
a dependent child of the court if the child has suffered, or there is
a substantial risk that the child will suffer, among other things,
serious physical harm inflicted nonaccidentally upon the child by his
or her parent or guardian, or serious physical harm or illness as a
result of the failure or inability of the parent or guardian to
adequately supervise or protect that child. Existing law authorizes
the juvenile court to terminate the parental rights of a child who
has been adjudged a dependent child of the court. Existing law
further requires that a dependent child who has no counsel be
represented by appointed counsel at all dependency proceedings, as
specified.
This bill would additionally require that a dependent child of the
court who is not a lawful permanent resident or citizen of the
United States and for whom the court has determined parental
reunification is no longer an option, be provided an attorney
specializing in immigration law who may pursue special immigrant
status or any other avenue to obtain legal permanent resident status
or citizenship for that child. The bill would require the Judicial
Council to promulgate specified rules of court in relation to the
qualifications of those attorneys. The bill would exempt certain
counties from those requirements.
By imposing additional duties on county employees to contract for
those services, the bill would impose a state-mandated local program.
(2) Existing law authorizes the juvenile court to adjudge a child
a ward of the court for being habitually disobedient or truant, and
provides appointed counsel for the representation thereof.
This bill would also require that a child who is adjudged a ward
of the court pursuant to specified provisions of law who is not a
lawful permanent resident or citizen of the United States and who is
in foster care or deemed unlikely to reunify with his or her parents,
as specified, be provided an attorney specializing in immigration
law who may pursue special immigrant status or any other avenue to
obtain legal permanent resident status or citizenship for that ward.
The bill would require the Judicial Council to promulgate rules of
court relating to the qualifications of those attorneys. The bill
would exempt certain counties from those requirements.
By imposing additional duties on county employees, the bill would
impose a state-mandated local program.
(3) This bill would also provide that the requirement to provide
legal representation pursuant to the provisions of the act is
contingent upon an appropriation in the annual Budget Act or another
statute.
(4) This bill would incorporate additional changes in Section
366.26 of the Welfare and Institutions Code, proposed by AB 519, AB
1412, and SB 218, to be operative only if one or more of those bills
are chaptered and become effective on or before January 1, 2006, and
this bill is chaptered last.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 317 of the Welfare and Institutions Code is
amended to read:
317. (a) When it appears to the court that a parent or guardian
of the child desires counsel but is presently financially unable to
afford and cannot for that reason employ counsel, the court may
appoint counsel as provided in this section.
(b) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel, unless
the court finds that the parent or guardian has made a knowing and
intelligent waiver of counsel as provided in this section.
(c) Where a child is not represented by counsel, the court shall
appoint counsel for the child unless the court finds that the child
would not benefit from the appointment of counsel. The court shall
state on the record its reasons for that finding. A primary
responsibility of any counsel appointed to represent a child pursuant
to this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel for the
child may be a district attorney, public defender, or other member of
the bar, provided that the counsel does not represent another party
or county agency whose interests conflict with the child's. The fact
that the district attorney represents the child in a proceeding
pursuant to Section 300 as well as conducts a criminal investigation
or files a criminal complaint or information arising from the same or
reasonably related set of facts as the proceeding pursuant to
Section 300 is not in and of itself a conflict of interest. The court
may fix the compensation for the services of appointed counsel. The
appointed counsel shall have a caseload and training that assures
adequate representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards, training
requirements, and guidelines for appointed counsel for children and
shall adopt rules as required by Section 326.5 no later than July 1,
2001.
(d) The counsel appointed by the court shall represent the parent,
guardian, or child at the detention hearing and at all subsequent
proceedings before the juvenile court. Counsel shall continue to
represent the parent or child unless relieved by the court upon the
substitution of other counsel or for cause. The representation shall
include representing the parent or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship.
(e) The counsel for the child shall be charged in general with the
representation of the child's interests. To that end, the counsel
shall make or cause to have made any further investigations that he
or she deems in good faith to be reasonably necessary to ascertain
the facts, including the interviewing of witnesses, and he or she
shall examine and cross-examine witnesses in both the adjudicatory
and dispositional hearings. The counsel may also introduce and
examine his or her own witnesses, make recommendations to the court
concerning the child's welfare, and participate further in the
proceedings to the degree necessary to adequately represent the
child, including, but not limited to, reporting to the court any
problems with the immigration services provided pursuant to
subdivision (i). In any case in which the child is four years of age
or older, counsel shall interview the child to determine the child's
wishes and to assess the child's well-being, and shall advise the
court of the child's wishes. Counsel for the child shall not advocate
for the return of the child if, to the best of his or her knowledge,
that return conflicts with the protection and safety of the child.
In addition counsel shall investigate the interests of the child
beyond the scope of the juvenile proceeding, including, but not
limited to, eligibility for special immigrant juvenile status
pursuant to Section 1101(a)(27)(J) of Title 8 of the United States
Code if the child is not a lawful permanent resident or citizen of
the United States, and report to the court other interests of the
child that may need to be protected by the institution of other
administrative or judicial proceedings. The attorney representing a
child in a dependency proceeding is not required to assume the
responsibilities of a social worker and is not expected to provide
nonlegal services to the child. The court shall take whatever
appropriate action is necessary to fully protect the interests of the
child.
(f) Either the child or the counsel for the child, with the
informed consent of the child if the child is found by the court to
be of sufficient age and maturity to so consent, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege. If the child invokes the privilege,
counsel may not waive it, but if counsel invokes the privilege, the
child may waive it. Counsel shall be the holder of these privileges
if the child is found by the court not to be of sufficient age and
maturity to so consent. For the sole purpose of fulfilling his or her
obligation to provide legal representation of the child, counsel for
a child shall have access to all records with regard to the child
maintained by a health care facility, as defined in Section 1545 of
the Penal Code, health care providers, as defined in Section 6146 of
the Business and Professions Code, a physician and surgeon or other
health practitioner, as defined in paragraph (21) of subdivision (a)
of Section 11165.7 of the Penal Code, or a child care custodian, as
described in Section 11165.7 of the Penal Code. Notwithstanding any
other law, counsel shall be given access to all records relevant to
the case which are maintained by state or local public agencies. All
information requested from a child protective agency regarding a
child who is in protective custody, or from a child's guardian ad
litem, shall be provided to the child's counsel within 30 days of the
request.
(g) In a county of the third class, if counsel is to be provided
to a child at county expense other than by counsel for the agency,
the court shall first utilize the services of the public defender
prior to appointing private counsel, to provide legal counsel. This
subdivision shall not be construed to require the appointment of the
public defender in any case in which the public defender has a
conflict of interest. In the interest of justice, a court may depart
from that portion of the procedure requiring appointment of the
public defender after making a finding of good cause and stating its
reasons on the record.
(h) In a county of the third class, if counsel is to be appointed
for a parent or guardian at county expense, the court shall first
utilize the services of the alternate public defender, prior to
appointing private counsel, to provide legal counsel. This
subdivision shall not be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest. In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating its reasons on the record.
(i) (1) If the court finds that a dependent child is a resident of
this state but not a lawful permanent resident or citizen of the
United States, that parental reunification is no longer an option for
the child, and that it is in the best interest of the child, the
court shall appoint an immigration attorney for the child in addition
to counsel appointed pursuant to subdivision (c). To the maximum
extent practicable, the court shall make every effort to utilize the
services of competent pro bono counsel who agree to provide
representation to the child without charge. The immigration attorney
may pursue special immigrant juvenile status for that child pursuant
to Section 1101(a)(27)(J) of Title 8 of the United States Code, or
pursue any other avenue to obtain lawful permanent resident status or
United States citizenship. Before January 1, 2007, the Judicial
Council shall promulgate rules of court that establish standards,
training requirements, and guidelines for attorneys eligible to be
appointed under this paragraph.
(2) Paragraph (1) does not apply to a county that already
provides, or contracts for, those services, whether those services
are provided by social services agencies or attorneys.
SEC. 2. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older who is placed in a group home for six months
or longer from the date the child entered foster care, to identify
any individuals, other than the child's siblings, who are important
to the child, in order to identify potential adoptive parents. The
public agency may ask any other child to provide that information, as
appropriate. During the 180-day period, the public agency shall, to
the extent possible, contact other private and public adoption
agencies regarding the availability of the child for adoption. During
the 180-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) or (3) of subdivision (b). For purposes of
this section, a child may only be found to be difficult to place for
adoption if there is no identified or available prospective adoptive
parent for the child because of the child's membership in a sibling
group, or the presence of a diagnosed medical, physical, or mental
handicap, or the child is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older who is placed in a group home
for six months or longer from the date the child entered foster care,
shall be asked to identify any individuals, other than the child's
siblings, who are important to the child, in order to identify
potential guardians. The agency may ask any other child to provide
that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exist:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child 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 child,
upon the parent or parents and upon all other persons who have been
served with a citation by publication or otherwise as provided in
this chapter. After making the 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 child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the child, who
shall serve until the child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
SEC. 2.1. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each
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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older who is placed in a group home for six months
or longer from the date the child entered foster care, to identify
any individuals, other than the child's siblings, who are important
to the child, in order to identify potential adoptive parents. The
public agency may ask any other child to provide that information, as
appropriate. During the 180-day period, the public agency shall, to
the extent possible, contact other private and public adoption
agencies regarding the availability of the child for adoption. During
the 180-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) or (3) of subdivision (b). For purposes of
this section, a child may only be found to be difficult to place for
adoption if there is no identified or available prospective adoptive
parent for the child because of the child's membership in a sibling
group, or the presence of a diagnosed medical, physical, or mental
handicap, or the child is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older who is placed in a group home
for six months or longer from the date the child entered foster care,
shall be asked to identify any individuals, other than the child's
siblings, who are important to the child, in order to identify
potential guardians. The agency may ask any other child to provide
that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exists:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) (1) Any order of the court permanently terminating parental
rights under this section shall be conclusive and binding upon the
child, upon the parent or parents and upon all other persons who have
been served with a citation by publication or otherwise as provided
in this chapter. After making the order, the juvenile court shall
have no power to set aside, change, or modify it, except as provided
in paragraph (2), but nothing in this section shall be construed to
limit the right to appeal the order.
(2) A child who has not been adopted after the passage of at least
three years from the date the court terminated parental rights and
for whom the court has determined that adoption is no longer the
permanent plan may petition the juvenile court to reinstate parental
rights pursuant to the procedure prescribed by Section 388. The child
may file the petition prior to the expiration of this three-year
period if the State Department of Social Services or licensed
adoption agency that is responsible for custody and supervision of
the child as described in subdivision (j) and the child stipulate
that the child is no longer likely to be adopted. A child over 12
years of age shall sign the petition in the absence of a showing of
good cause as to why the child could not do so. If it appears that
the best interests of the child may be promoted by reinstatement of
parental rights, the court shall order that a hearing be held and
shall give prior notice, or cause prior notice to be given, to the
social worker or probation officer and to the child's attorney of
record, or, if there is no attorney of record for the child, to the
child, and the child's tribe, if applicable, by means prescribed by
subdivision (c) of Section 297. The court shall order the child or
the social worker or probation officer to give prior notice of the
hearing to the child's former parent or parents whose parental rights
were terminated in the manner prescribed by subdivision (f) of
Section 294 where the recommendation is adoption. The juvenile court
shall grant the petition if it finds by clear and convincing evidence
that the child is no longer likely to be adopted and that
reinstatement of parental rights is in the child's best interest. If
the court reinstates parental rights over a child who is under 12
years of age and for whom the new permanent plan will not be
reunification with a parent or legal guardian, the court shall
specify the factual basis for its findings that it is in the best
interest of the child to reinstate parental rights. This subdivision
is intended to be retroactive and applies to any child who is under
the jurisdiction of the juvenile court at the time of the hearing
regardless of the date parental rights were terminated.
(j) If the court, by order or judgment, declares the child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the child, who
shall serve until the child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 apply:
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
SEC. 2.2. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall make findings and orders in
the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older, to identify any individuals, other than the
child's siblings, who are important to the child, in order to
identify potential adoptive parents. The public agency may ask any
other child to provide that information, as appropriate. During the
180-day period, the public agency shall, to the extent possible,
contact other private and public adoption agencies regarding the
availability of the child for adoption. During the 180-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)
or (3) of subdivision (b). For purposes of this section, a child may
only be found to be difficult to place for adoption if there is no
identified or available prospective adoptive parent for the child
because of the child's membership in a sibling group, or the presence
of a diagnosed medical, physical, or mental handicap, or the child
is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older, shall be asked to identify any
individuals, other than the child's siblings, who are important to
the child, in order to identify potential guardians. The agency may
ask any other child to provide that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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 a period of time not
to exceed 30 days as necessary to appoint counsel, and to enable
counsel to become acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exist:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child 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 child,
upon the parent or parents and upon all other persons who have been
served with a citation by publication or otherwise as provided in
this chapter. After making the 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 child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the child, who
shall serve until the child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) The implementation and operation of the amendments to
paragraph (3) of subdivision (c) and subparagraph (A) of paragraph
(4) of subdivision (c) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 2.3. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older who is placed in a group home for six months
or longer from the date the child entered foster care, to identify
any individuals, other than the child's siblings, who are important
to the child, in order to identify potential adoptive parents. The
public agency may ask any other child to provide that information, as
appropriate. During the 180-day period, the public agency shall, to
the extent possible, contact other private and public adoption
agencies regarding the availability of the child for adoption. During
the 180-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)
or (3) of subdivision (b). For purposes of this section, a child may
only be found to be difficult to place for adoption if there is no
identified or available prospective adoptive parent for the child
because of the child's membership in a sibling group, or the presence
of a diagnosed medical, physical, or mental handicap, or the child
is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older who is placed in a group home
for six months or longer from the date the child entered foster care,
shall be asked to identify any individuals, other than the child's
siblings, who are important to the child, in order to identify
potential guardians. The agency may ask any other child to provide
that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exist:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child 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 child,
upon the parent or parents and upon all other persons who have been
served with a citation by publication or otherwise as provided in
this chapter. After making the 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 child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted, except as
specified in subdivision (n). With the consent of the agency, the
court may appoint a guardian of the child, who shall serve until the
child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) (1) Notwithstanding Section 8704 of the Family Code or any
other provision of law, the court, at a hearing held pursuant to this
section or anytime thereafter, 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 step to facilitate the adoption process. In determining whether
to make that designation, the court may take into consideration
whether the caretaker is listed in the preliminary assessment
prepared by the county department in accordance with subdivision (i)
of Section 366.21 as an appropriate person to be considered as an
adoptive parent for the child and the recommendation of the State
Department of Social Services or licensed adoption agency.
(2) For purposes of this subdivision, steps to facilitate the
adoption process include, but are not limited to, the following:
(A) Applying for an adoption homestudy.
(B) Cooperating with an adoption homestudy.
(C) Being designated by the court or the licensed adoption agency
as the adoptive family.
(D) Requesting de facto parent status.
(E) Signing an adoptive placement agreement.
(F) Engaging in discussions regarding a postadoption contact
agreement.
(G) Working to overcome any impediments that have been identified
by the State Department of Social Services and the licensed adoption
agency.
(H) Attending classes required of prospective adoptive parents.
(3) Prior to a change in placement and as soon as possible after a
decision is made to remove a child from the home of a designated
prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if
that caretaker would have met the threshold criteria to be designated
as a prospective adoptive parent pursuant to paragraph (1) on the
date of service of this notice, the child's attorney, and the child,
if the child is 10 years of age or older, of the proposal in the
manner described in Section 16010.6.
(A) Within five court days or seven calendar days, whichever is
longer, of the date of notification, the child, the child's attorney,
or the designated prospective adoptive parent may file a petition
with the court objecting to the proposal to remove the child, or the
court, upon its own motion, may set a hearing regarding the proposal.
The court may, for good cause, extend the filing period. A caretaker
who would have met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1) on the date of
service of the notice of proposed removal of the child may file,
together with the petition under this subparagraph, a petition for an
order designating the caretaker as a prospective adoptive parent for
purposes of this subdivision.
(B) A hearing ordered pursuant to this paragraph shall be held as
soon as possible and not later than five court days after the
petition is filed with the court or the court sets a hearing upon its
own motion, unless the court for good cause is unable to set the
matter for hearing five court days after the petition is filed, in
which case the court shall set the matter for hearing as soon as
possible. At the hearing, the court shall determine whether the
caretaker has met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1), and whether
the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child's best interest, and the
child may not be removed from the home of the designated prospective
adoptive parent unless the court finds that removal is in the child's
best interest. If the court determines that the caretaker did not
meet the threshold criteria to be designated as a prospective
adoptive parent on the date of service of the notice of proposed
removal of the child, the petition objecting to the proposed removal
filed by the caretaker shall be dismissed. If the caretaker was
designated as a prospective adoptive parent prior to this hearing,
the court shall inquire into any progress made by the caretaker
towards the adoption of the child since the caretaker was designated
as a prospective adoptive parent.
(C) A determination by the court that the caretaker is a
designated prospective adoptive parent pursuant to paragraph (1) or
subparagraph (B) does not make the caretaker a party to the
dependency proceeding nor does it confer on the caretaker any
standing to object to any other action of the department or licensed
adoption agency, unless the caretaker has been declared a de facto
parent by the court prior to the notice of removal served pursuant to
paragraph (3).
(D) If a petition objecting to the proposal to remove the child is
not filed, and the court, upon its own motion, does not set a
hearing, the child may be removed from the home of the designated
prospective adoptive parent without a hearing.
(4) Notwithstanding paragraph (3), if the State Department of
Social Services or a licensed adoption agency determines that the
child must be removed from the home of the caretaker who is or may be
a designated prospective adoptive parent immediately, due to a risk
of physical or emotional harm, the agency may remove the child from
that home and is not required to provide notice prior to the removal.
However, as soon as possible and not longer than two court days
after the removal, the agency shall notify the court, the caretaker
who is or may be a designated prospective adoptive parent, the child'
s attorney, and the child, if the child is 10 years of age or older,
of the removal. Within five court days or seven calendar days,
whichever is longer, of the date of notification of the removal, the
child, the child's attorney, or the caretaker who is or may be a
designated prospective adoptive parent may petition for, or the court
on its own motion may set, a noticed hearing pursuant to paragraph
(3). The court may, for good cause, extend the filing period.
(5) Except as provided in subdivision (b) of Section 366.28, an
order by the court issued after a hearing pursuant to this
subdivision shall not be appealable.
(6) Nothing in this section shall preclude a county child
protective services agency from fully investigating and responding to
alleged abuse or neglect of a child pursuant to Section 11165.5 of
the Penal Code.
(7) The Judicial Council shall prepare forms to facilitate the
filing of the petitions described in this subdivision, which shall
become effective on January 1, 2006.
SEC. 2.4. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each
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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older, to identify any individuals, other than
the child's siblings, who
are important to the child, in order to identify potential adoptive
parents. The public agency may ask any other child to provide that
information, as appropriate. During the 180-day period, the public
agency shall, to the extent possible, contact other private and
public adoption agencies regarding the availability of the child for
adoption. During the 180-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) or (3) of subdivision
(b). For purposes of this section, a child may only be found to be
difficult to place for adoption if there is no identified or
available prospective adoptive parent for the child because of the
child's membership in a sibling group, or the presence of a diagnosed
medical, physical, or mental handicap, or the child is the age of
seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older, shall be asked to identify any
individuals, other than the child's siblings, who are important to
the child, in order to identify potential guardians. The agency may
ask any other child to provide that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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 a period of time not
to exceed 30 days as necessary to appoint counsel, and to enable
counsel to become acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exists:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) (1) Any order of the court permanently terminating parental
rights under this section shall be conclusive and binding upon the
child, upon the parent or parents and upon all other persons who have
been served with a citation by publication or otherwise as provided
in this chapter. After making the order, the juvenile court shall
have no power to set aside, change, or modify it, except as provided
in paragraph (2), but nothing in this section shall be construed to
limit the right to appeal the order.
(2) A child who has not been adopted after the passage of at least
three years from the date the court terminated parental rights and
for whom the court has determined that adoption is no longer the
permanent plan may petition the juvenile court to reinstate parental
rights pursuant to the procedure prescribed by Section 388. The child
may file the petition prior to the expiration of this three-year
period if the State Department of Social Services or licensed
adoption agency that is responsible for custody and supervision of
the child as described in subdivision (j) and the child stipulate
that the child is no longer likely to be adopted. A child over 12
years of age shall sign the petition in the absence of a showing of
good cause as to why the child could not do so. If it appears that
the best interests of the child may be promoted by reinstatement of
parental rights, the court shall order that a hearing be held and
shall give prior notice, or cause prior notice to be given, to the
social worker or probation officer and to the child's attorney of
record, or, if there is no attorney of record for the child, to the
child, and the child's tribe, if applicable, by means prescribed by
subdivision (c) of Section 297. The court shall order the child or
the social worker or probation officer to give prior notice of the
hearing to the child's former parent or parents whose parental rights
were terminated in the manner prescribed by subdivision (f) of
Section 294 where the recommendation is adoption. The juvenile court
shall grant the petition if it finds by clear and convincing evidence
that the child is no longer likely to be adopted and that
reinstatement of parental rights is in the child's best interest. If
the court reinstates parental rights over a child who is under 12
years of age and for whom the new permanent plan will not be
reunification with a parent or legal guardian, the court shall
specify the factual basis for its findings that it is in the best
interest of the child to reinstate parental rights. This subdivision
is intended to be retroactive and applies to any child who is under
the jurisdiction of the juvenile court at the time of the hearing
regardless of the date parental rights were terminated.
(j) If the court, by order or judgment, declares the child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted. With the consent
of the agency, the court may appoint a guardian of the child, who
shall serve until the child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 apply:
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) The implementation and operation of the amendments to
paragraph (3) of subdivision (c) and subparagraph (A) of paragraph
(4) of subdivision (c) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 2.5. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each
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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older who is placed in a group home for six months
or longer from the date the child entered foster care, to identify
any individuals, other than the child's siblings, who are important
to the child, in order to identify potential adoptive parents. The
public agency may ask any other child to provide that information, as
appropriate. During the 180-day period, the public agency shall, to
the extent possible, contact other private and public adoption
agencies regarding the availability of the child for adoption. During
the 180-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) or (3) of subdivision (b). For purposes of
this section, a child may only be found to be difficult to place for
adoption if there is no identified or available prospective adoptive
parent for the child because of the child's membership in a sibling
group, or the presence of a diagnosed medical, physical, or mental
handicap, or the child is the age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older who is placed in a group home
for six months or longer from the date the child entered foster care,
shall be asked to identify any individuals, other than the child's
siblings, who are important to the child, in order to identify
potential guardians. The agency may ask any other child to provide
that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create
liability on the part of the foster family agency to third persons
injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exists:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) (1) Any order of the court permanently terminating parental
rights under this section shall be conclusive and binding upon the
child, upon the parent or parents and upon all other persons who have
been served with a citation by publication or otherwise as provided
in this chapter. After making the order, the juvenile court shall
have no power to set aside, change, or modify it, except as provided
in paragraph (2), but nothing in this section shall be construed to
limit the right to appeal the order.
(2) A child who has not been adopted after the passage of at least
three years from the date the court terminated parental rights and
for whom the court has determined that adoption is no longer the
permanent plan may petition the juvenile court to reinstate parental
rights pursuant to the procedure prescribed by Section 388. The child
may file the petition prior to the expiration of this three-year
period if the State Department of Social Services or licensed
adoption agency that is responsible for custody and supervision of
the child as described in subdivision (j) and the child stipulate
that the child is no longer likely to be adopted. A child over 12
years of age shall sign the petition in the absence of a showing of
good cause as to why the child could not do so. If it appears that
the best interests of the child may be promoted by reinstatement of
parental rights, the court shall order that a hearing be held and
shall give prior notice, or cause prior notice to be given, to the
social worker or probation officer and to the child's attorney of
record, or, if there is no attorney of record for the child, to the
child, and the child's tribe, if applicable, by means prescribed by
subdivision (c) of Section 297. The court shall order the child or
the social worker or probation officer to give prior notice of the
hearing to the child's former parent or parents whose parental rights
were terminated in the manner prescribed by subdivision (f) of
Section 294 where the recommendation is adoption. The juvenile court
shall grant the petition if it finds by clear and convincing evidence
that the child is no longer likely to be adopted and that
reinstatement of parental rights is in the child's best interest. If
the court reinstates parental rights over a child who is under 12
years of age and for whom the new permanent plan will not be
reunification with a parent or legal guardian, the court shall
specify the factual basis for its findings that it is in the best
interest of the child to reinstate parental rights. This subdivision
is intended to be retroactive and applies to any child who is under
the jurisdiction of the juvenile court at the time of the hearing
regardless of the date parental rights were terminated.
(j) If the court, by order or judgment, declares the child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted, except as
specified in subdivision (n). With the consent of the agency, the
court may appoint a guardian of the child, who shall serve until the
child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 apply:
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) (1) Notwithstanding Section 8704 of the Family Code or any
other provision of law, the court, at a hearing held pursuant to this
section or anytime thereafter, 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 step to facilitate the adoption process. In determining whether
to make that designation, the court may take into consideration
whether the caretaker is listed in the preliminary assessment
prepared by the county department in accordance with subdivision (i)
of Section 366.21 as an appropriate person to be considered as an
adoptive parent for the child and the recommendation of the State
Department of Social Services or licensed adoption agency.
(2) For purposes of this subdivision, steps to facilitate the
adoption process include, but are not limited to, the following:
(A) Applying for an adoption homestudy.
(B) Cooperating with an adoption homestudy.
(C) Being designated by the court or the licensed adoption agency
as the adoptive family.
(D) Requesting de facto parent status.
(E) Signing an adoptive placement agreement.
(F) Engaging in discussions regarding a postadoption contact
agreement.
(G) Working to overcome any impediments that have been identified
by the State Department of Social Services and the licensed adoption
agency.
(H) Attending classes required of prospective adoptive parents.
(3) Prior to a change in placement and as soon as possible after a
decision is made to remove a child from the home of a designated
prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if
that caretaker would have met the threshold criteria to be designated
as a prospective adoptive parent pursuant to paragraph (1) on the
date of service of this notice, the child's attorney, and the child,
if the child is 10 years of age or older, of the proposal in the
manner described in Section 16010.6.
(A) Within five court days or seven calendar days, whichever is
longer, of the date of notification, the child, the child's attorney,
or the designated prospective adoptive parent may file a petition
with the court objecting to the proposal to remove the child, or the
court, upon its own motion, may set a hearing regarding the proposal.
The court may, for good cause, extend the filing period. A caretaker
who would have met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1) on the date of
service of the notice of proposed removal of the child may file,
together with the petition under this subparagraph, a petition for an
order designating the caretaker as a prospective adoptive parent for
purposes of this subdivision.
(B) A hearing ordered pursuant to this paragraph shall be held as
soon as possible and not later than five court days after the
petition is filed with the court or the court sets a hearing upon its
own motion, unless the court for good cause is unable to set the
matter for hearing five court days after the petition is filed, in
which case the court shall set the matter for hearing as soon as
possible. At the hearing, the court shall determine whether the
caretaker has met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1), and whether
the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child's best interest, and the
child may not be removed from the home of the designated prospective
adoptive parent unless the court finds that removal is in the child's
best interest. If the court determines that the caretaker did not
meet the threshold criteria to be designated as a prospective
adoptive parent on the date of service of the notice of proposed
removal of the child, the petition objecting to the proposed removal
filed by the caretaker shall be dismissed. If the caretaker was
designated as a prospective adoptive parent prior to this hearing,
the court shall inquire into any progress made by the caretaker
towards the adoption of the child since the caretaker was designated
as a prospective adoptive parent.
(C) A determination by the court that the caretaker is a
designated prospective adoptive parent pursuant to paragraph (1) or
subparagraph (B) does not make the caretaker a party to the
dependency proceeding nor does it confer on the caretaker any
standing to object to any other action of the department or licensed
adoption agency, unless the caretaker has been declared a de facto
parent by the court prior to the notice of removal served pursuant to
paragraph (3).
(D) If a petition objecting to the proposal to remove the child is
not filed, and the court, upon its own motion, does not set a
hearing, the child may be removed from the home of the designated
prospective adoptive parent without a hearing.
(4) Notwithstanding paragraph (3), if the State Department of
Social Services or a licensed adoption agency determines that the
child must be removed from the home of the caretaker who is or may be
a designated prospective adoptive parent immediately, due to a risk
of physical or emotional harm, the agency may remove the child from
that home and is not required to provide notice prior to the removal.
However, as soon as possible and not longer than two court days
after the removal, the agency shall notify the court, the caretaker
who is or may be a designated prospective adoptive parent, the child'
s attorney, and the child, if the child is 10 years of age or older,
of the removal. Within five court days or seven calendar days,
whichever is longer, of the date of notification of the removal, the
child, the child's attorney, or the caretaker who is or may be a
designated prospective adoptive parent may petition for, or the court
on its own motion may set, a noticed hearing pursuant to paragraph
(3). The court may, for good cause, extend the filing period.
(5) Except as provided in subdivision (b) of Section 366.28, an
order by the court issued after a hearing pursuant to this
subdivision shall not be appealable.
(6) Nothing in this section shall preclude a county child
protective services agency from fully investigating and responding to
alleged abuse or neglect of a child pursuant to Section 11165.5 of
the Penal Code.
(7) The Judicial Council shall prepare forms to facilitate the
filing of the petitions described in this subdivision, which shall
become effective on January 1, 2006.
SEC. 2.6. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older, to identify any individuals, other than the
child's siblings, who are important to the child, in order to
identify potential adoptive parents. The public agency may ask any
other child to provide that information, as appropriate. During the
180-day period, the public agency shall, to the extent possible,
contact other private and public adoption agencies regarding the
availability of the child for adoption. During the 180-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)
or (3) of subdivision (b). For purposes of this section, a child may
only be found to be difficult to place for adoption if there is no
identified or available prospective adoptive parent for the child
because of the child's membership in a sibling group, or the presence
of a diagnosed
medical, physical, or mental handicap, or the child is the age of
seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older, shall be asked to identify any
individuals, other than the child's siblings, who are important to
the child, in order to identify potential guardians. The agency may
ask any other child to provide that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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 a period of time not
to exceed 30 days as necessary to appoint counsel, and to enable
counsel to become acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exist:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child 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 child,
upon the parent or parents and upon all other persons who have been
served with a citation by publication or otherwise as provided in
this chapter. After making the 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 child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted, except as
specified in subdivision (n). With the consent of the agency, the
court may appoint a guardian of the child, who shall serve until the
child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) (1) Notwithstanding Section 8704 of the Family Code or any
other provision of law, the court, at a hearing held pursuant to this
section or anytime thereafter, 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 step to facilitate the adoption process. In determining whether
to make that designation, the court may take into consideration
whether the caretaker is listed in the preliminary assessment
prepared by the county department in accordance with subdivision (i)
of Section 366.21 as an appropriate person to be considered as an
adoptive parent for the child and the recommendation of the State
Department of Social Services or licensed adoption agency.
(2) For purposes of this subdivision, steps to facilitate the
adoption process include, but are not limited to, the following:
(A) Applying for an adoption homestudy.
(B) Cooperating with an adoption homestudy.
(C) Being designated by the court or the licensed adoption agency
as the adoptive family.
(D) Requesting de facto parent status.
(E) Signing an adoptive placement agreement.
(F) Engaging in discussions regarding a postadoption contact
agreement.
(G) Working to overcome any impediments that have been identified
by the State Department of Social Services and the licensed adoption
agency.
(H) Attending classes required of prospective adoptive parents.
(3) Prior to a change in placement and as soon as possible after a
decision is made to remove a child from the home of a designated
prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if
that caretaker would have met the threshold criteria to be designated
as a prospective adoptive parent pursuant to paragraph (1) on the
date of service of this notice, the child's attorney, and the child,
if the child is 10 years of age or older, of the proposal in the
manner described in Section 16010.6.
(A) Within five court days or seven calendar days, whichever is
longer, of the date of notification, the child, the child's attorney,
or the designated prospective adoptive parent may file a petition
with the court objecting to the proposal to remove the child, or the
court, upon its own motion, may set a hearing regarding the proposal.
The court may, for good cause, extend the filing period. A caretaker
who would have met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1) on the date of
service of the notice of proposed removal of the child may file,
together with the petition under this subparagraph, a petition for an
order designating the caretaker as a prospective adoptive parent for
purposes of this subdivision.
(B) A hearing ordered pursuant to this paragraph shall be held as
soon as possible and not later than five court days after the
petition is filed with the court or the court sets a hearing upon its
own motion, unless the court for good cause is unable to set the
matter for hearing five court days after the petition is filed, in
which case the court shall set the matter for hearing as soon as
possible. At the hearing, the court shall determine whether the
caretaker has met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1), and whether
the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child's best interest, and the
child may not be removed from the home of the designated prospective
adoptive parent unless the court finds that removal is in the child's
best interest. If the court determines that the caretaker did not
meet the threshold criteria to be designated as a prospective
adoptive parent on the date of service of the notice of proposed
removal of the child, the petition objecting to the proposed removal
filed by the caretaker shall be dismissed. If the caretaker was
designated as a prospective adoptive parent prior to this hearing,
the court shall inquire into any progress made by the caretaker
towards the adoption of the child since the caretaker was designated
as a prospective adoptive parent.
(C) A determination by the court that the caretaker is a
designated prospective adoptive parent pursuant to paragraph (1) or
subparagraph (B) does not make the caretaker a party to the
dependency proceeding nor does it confer on the caretaker any
standing to object to any other action of the department or licensed
adoption agency, unless the caretaker has been declared a de facto
parent by the court prior to the notice of removal served pursuant to
paragraph (3).
(D) If a petition objecting to the proposal to remove the child is
not filed, and the court, upon its own motion, does not set a
hearing, the child may be removed from the home of the designated
prospective adoptive parent without a hearing.
(4) Notwithstanding paragraph (3), if the State Department of
Social Services or a licensed adoption agency determines that the
child must be removed from the home of the caretaker who is or may be
a designated prospective adoptive parent immediately, due to a risk
of physical or emotional harm, the agency may remove the child from
that home and is not required to provide notice prior to the removal.
However, as soon as possible and not longer than two court days
after the removal, the agency shall notify the court, the caretaker
who is or may be a designated prospective adoptive parent, the child'
s attorney, and the child, if the child is 10 years of age or older,
of the removal. Within five court days or seven calendar days,
whichever is longer, of the date of notification of the removal, the
child, the child's attorney, or the caretaker who is or may be a
designated prospective adoptive parent may petition for, or the court
on its own motion may set, a noticed hearing pursuant to paragraph
(3). The court may, for good cause, extend the filing period.
(5) Except as provided in subdivision (b) of Section 366.28, an
order by the court issued after a hearing pursuant to this
subdivision shall not be appealable.
(6) Nothing in this section shall preclude a county child
protective services agency from fully investigating and responding to
alleged abuse or neglect of a child pursuant to Section 11165.5 of
the Penal Code.
(7) The Judicial Council shall prepare forms to facilitate the
filing of the petitions described in this subdivision, which shall
become effective on January 1, 2006.
(o) The implementation and operation of the amendments to
paragraph (3) of subdivision (c) and subparagraph (A) of paragraph
(4) of subdivision (c) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 2.7. Section 366.26 of the Welfare and Institutions Code is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (c)
of Section 360. The procedures specified in this section 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. Section 8714.7 of the Family
Code is applicable and available to all dependent children meeting
the requirements of that section, if the postadoption contact
agreement has been entered into voluntarily. For children who are
adjudged dependent children of the juvenile court pursuant to
subdivision (c) of Section 360, 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 child
while the child is a dependent child of the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, 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 may present, and then shall
make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child 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) On making a finding under paragraph (3) of subdivision (c),
identify adoption as the permanent placement goal and order that
efforts be made to locate an appropriate adoptive family for the
child within a period not to exceed 180 days.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to the periodic review of the juvenile court under Section
366.3.
In choosing among the above alternatives, the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21 or subdivision (b)
of Section 366.22, and any other relevant evidence, by a clear and
convincing standard, that it is likely the child will be adopted, the
court shall terminate parental rights and order the child placed for
adoption. The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt
the child, shall not constitute a basis for the court to conclude
that it is not likely the child will be adopted. A finding under
subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5
that reunification services shall not be offered, under 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, under
Section 366.21 or 366.22, that the court has continued to remove the
child from the custody of the parent or guardian and has terminated
reunification services, shall constitute a sufficient basis for
termination of parental rights unless the court finds a compelling
reason for determining that termination would be detrimental to the
child due to one or more of the following circumstances:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) The child 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 child is living with a relative or foster parent who is
unable or unwilling to adopt the child because of exceptional
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 and the removal of the child from the physical custody of
his or her relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child 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 child is under six years of age and the siblings are, or
should be, permanently placed together.
(E) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each
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 child pursuant to paragraph (1) and that
the child 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
child within a period not to exceed 180 days. During this 180-day
period, the public agency responsible for seeking adoptive parents
for each child shall, to the extent possible, ask each child who is
10 years of age or older, to identify any individuals, other than the
child's siblings, who are important to the child, in order to
identify potential adoptive parents. The public agency may ask any
other child to provide that information, as appropriate. During the
180-day period, the public agency shall, to the extent possible,
contact other private and
public adoption agencies regarding the availability of the child
for adoption. During the 180-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) or (3) of
subdivision (b). For purposes of this section, a child may only be
found to be difficult to place for adoption if there is no identified
or available prospective adoptive parent for the child because of
the child's membership in a sibling group, or the presence of a
diagnosed medical, physical, or mental handicap, or the child is the
age of seven years or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in subparagraph (A), (B), (C),
(D), or (E) 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 child or order that the
child remain in long-term foster care. Legal guardianship shall be
considered before long-term foster care, if it is in the best
interest of the child and if a suitable guardian can be found. A
child who is 10 years of age or older, shall be asked to identify any
individuals, other than the child's siblings, who are important to
the child, in order to identify potential guardians. The agency may
ask any other child to provide that information, as appropriate.
(B) If the child 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 child
shall not be removed from the home if the court finds the removal
would be seriously detrimental to the emotional well-being of the
child because the child has substantial psychological ties to the
relative caretaker or foster parents.
(C) 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 child.
(5) If the court finds that the child 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 child with a stable and permanent
environment, the court may order the care, custody, and control of
the child transferred from the county welfare department to a
licensed foster family agency. The court shall consider the written
recommendation of the county welfare director regarding the
suitability of the transfer. The transfer shall be subject to further
court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children 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 child
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 permanent 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 child 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
permanent 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 child who is a dependent of the juvenile court. Nothing in this
section is intended to prevent the filing of 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 child or the parents are not being represented by previously
retained or appointed counsel, including, in the case of any child
who is not a lawful permanent resident or citizen of the United
States, counsel appointed pursuant to subdivision (i) of Section 317,
the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds that the child would not benefit from the
appointment of counsel. The court shall state on the record its
reasons for that finding.
(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 child 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 child, 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 a period of time not
to exceed 30 days as necessary to appoint counsel, and to enable
counsel to become acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exists:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) (1) Any order of the court permanently terminating parental
rights under this section shall be conclusive and binding upon the
child, upon the parent or parents and upon all other persons who have
been served with a citation by publication or otherwise as provided
in this chapter. After making the order, the juvenile court shall
have no power to set aside, change, or modify it, except as provided
in paragraph (2), but nothing in this section shall be construed to
limit the right to appeal the order.
(2) A child who has not been adopted after the passage of at least
three years from the date the court terminated parental rights and
for whom the court has determined that adoption is no longer the
permanent plan may petition the juvenile court to reinstate parental
rights pursuant to the procedure prescribed by Section 388. The child
may file the petition prior to the expiration of this three-year
period if the State Department of Social Services or licensed
adoption agency that is responsible for custody and supervision of
the child as described in subdivision (j) and the child stipulate
that the child is no longer likely to be adopted. A child over 12
years of age shall sign the petition in the absence of a showing of
good cause as to why the child could not do so. If it appears that
the best interests of the child may be promoted by reinstatement of
parental rights, the court shall order that a hearing be held and
shall give prior notice, or cause prior notice to be given, to the
social worker or probation officer and to the child's attorney of
record, or, if there is no attorney of record for the child, to the
child, and the child's tribe, if applicable, by means prescribed by
subdivision (c) of Section 297. The court shall order the child or
the social worker or probation officer to give prior notice of the
hearing to the child's former parent or parents whose parental rights
were terminated in the manner prescribed by subdivision (f) of
Section 294 where the recommendation is adoption. The juvenile court
shall grant the petition if it finds by clear and convincing evidence
that the child is no longer likely to be adopted and that
reinstatement of parental rights is in the child's best interest. If
the court reinstates parental rights over a child who is under 12
years of age and for whom the new permanent plan will not be
reunification with a parent or legal guardian, the court shall
specify the factual basis for its findings that it is in the best
interest of the child to reinstate parental rights. This subdivision
is intended to be retroactive and applies to any child who is under
the jurisdiction of the juvenile court at the time of the hearing
regardless of the date parental rights were terminated.
(j) If the court, by order or judgment, declares the child 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 child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, a petition for adoption may not 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 child and
shall be entitled to the exclusive care and control of the child at
all times until a petition for adoption is granted, except as
specified in subdivision (n). With the consent of the agency, the
court may appoint a guardian of the child, who shall serve until the
child 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 child over all other applications
for adoptive placement if the agency making the placement determines
that the child 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 child'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 child.
(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 apply:
(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 the
party is 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) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) (1) Notwithstanding Section 8704 of the Family Code or any
other provision of law, the court, at a hearing held pursuant to this
section or anytime thereafter, 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 step to facilitate the adoption process. In determining whether
to make that designation, the court may take into consideration
whether the caretaker is listed in the preliminary assessment
prepared by the county department in accordance with subdivision (i)
of Section 366.21 as an appropriate person to be considered as an
adoptive parent for the child and the recommendation of the State
Department of Social Services or licensed adoption agency.
(2) For purposes of this subdivision, steps to facilitate the
adoption process include, but are not limited to, the following:
(A) Applying for an adoption homestudy.
(B) Cooperating with an adoption homestudy.
(C) Being designated by the court or the licensed adoption agency
as the adoptive family.
(D) Requesting de facto parent status.
(E) Signing an adoptive placement agreement.
(F) Engaging in discussions regarding a postadoption contact
agreement.
(G) Working to overcome any impediments that have been identified
by the State Department of Social Services and the licensed adoption
agency.
(H) Attending classes required of prospective adoptive parents.
(3) Prior to a change in placement and as soon as possible after a
decision is made to remove a child from the home of a designated
prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if
that caretaker would have met the threshold criteria to be designated
as a prospective adoptive parent pursuant to paragraph (1) on the
date of service of this notice, the child's attorney, and the child,
if the child is 10 years of age or older, of the proposal in the
manner described in Section 16010.6.
(A) Within five court days or seven calendar days, whichever is
longer, of the date of notification, the child, the child's attorney,
or the designated prospective adoptive parent may file a petition
with the court objecting to the proposal to remove the child, or the
court, upon its own motion, may set a hearing regarding the proposal.
The court may, for good cause, extend the filing period. A caretaker
who would have met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1) on the date of
service of the notice of proposed removal of the child may file,
together with the petition under this subparagraph, a petition for an
order designating the caretaker as a prospective adoptive parent for
purposes of this subdivision.
(B) A hearing ordered pursuant to this paragraph shall be held as
soon as possible and not later than five court days after the
petition is filed with the court or the court sets a hearing upon its
own motion, unless the court for good cause is unable to set the
matter for hearing five court days after the petition is filed, in
which case the court shall set the matter for hearing as soon as
possible. At the hearing, the court shall determine whether the
caretaker has met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1), and whether
the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child's best interest, and the
child may not be removed from the home of the designated prospective
adoptive parent unless the court finds that removal is in the child's
best interest. If the court determines that the caretaker did not
meet the threshold criteria to be designated as a prospective
adoptive parent on the date of service of the notice of proposed
removal of the child, the petition objecting to the proposed removal
filed by the caretaker shall be dismissed. If the caretaker was
designated as a prospective adoptive parent prior to this hearing,
the court shall inquire into any progress made by the caretaker
towards the adoption of the child since the caretaker was designated
as a prospective adoptive parent.
(C) A determination by the court that the caretaker is a
designated prospective adoptive parent pursuant to paragraph (1) or
subparagraph (B) does not make the caretaker a party to the
dependency proceeding nor does it confer on the caretaker any
standing to object to any other action of the department or licensed
adoption agency, unless the caretaker has been declared a de facto
parent by the court prior to the notice of removal served pursuant to
paragraph (3).
(D) If a petition objecting to the proposal to remove the child is
not filed, and the court, upon its own motion, does not set a
hearing, the child may be removed from the home of the designated
prospective adoptive parent without a hearing.
(4) Notwithstanding paragraph (3), if the State Department of
Social Services or a licensed adoption agency determines that the
child must be removed from the home of the caretaker who is or may be
a designated prospective adoptive parent immediately, due to a risk
of physical or emotional harm, the agency may remove the child from
that home and is not required to provide notice prior to the removal.
However, as soon as possible and not longer than two court days
after the removal, the agency shall notify the court, the caretaker
who is or may be a designated prospective adoptive parent, the child'
s attorney, and the child, if the child is 10 years of age or older,
of the removal. Within five court days or seven calendar days,
whichever is longer, of the date of notification of the removal, the
child, the child's attorney, or the caretaker who is or may be a
designated prospective adoptive parent may petition for, or the court
on its own motion may set, a noticed hearing pursuant to paragraph
(3). The court may, for good cause, extend the filing period.
(5) Except as provided in subdivision (b) of Section 366.28, an
order by the court issued after a hearing pursuant to this
subdivision shall not be appealable.
(6) Nothing in this section shall preclude a county child
protective services agency from fully investigating and responding to
alleged abuse or neglect of a child pursuant to Section 11165.5 of
the Penal Code.
(7) The Judicial Council shall prepare forms to facilitate the
filing of the petitions described in this subdivision, which shall
become effective on January 1, 2006.
(o) The implementation and operation of the amendments to
paragraph (3) of subdivision (c) and subparagraph (A) of paragraph
(4) of subdivision (c) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 3. Section 634 of the Welfare and Institutions Code is
amended to read:
634. (a) When it appears to the court that the minor or his or
her parent or guardian desires counsel but is unable to afford and
cannot for that reason employ counsel, the court may appoint counsel.
In a case in which the minor is alleged to be a person described in
Section 601 or 602, the court shall appoint counsel for the minor if
he or she appears at the hearing without counsel, whether he or she
is unable to afford counsel or not, unless there is an intelligent
waiver of the right of counsel by the minor. In the absence of that
waiver, if the parent or guardian does not furnish counsel and the
court determines that the parent or guardian has the ability to pay
for counsel, the court shall appoint counsel at the expense of the
parent or guardian. In any case in which it appears to the court that
there is a conflict of interest between a parent or guardian and
child that one attorney could not properly represent both, the court
shall appoint counsel, in addition to counsel already employed by a
parent or guardian or appointed by the court to represent the minor
or parent or guardian. In a county in which there is no public
defender, the court may fix the compensation to be paid by the county
for service of that appointed counsel.
(b) (1) If the court finds that a ward of the court pursuant to
Section 601 or subdivision (a) of Section 602 is a resident of this
state, but is not a lawful permanent resident or citizen of the
United States, is in foster care pursuant to paragraph (1), (2), or
(3) of subdivision (a) of Section 727 or is deemed unlikely to
reunify with his or her parents as determined by a probation officer,
social worker, or the court, and that it is in the best interest of
the child, the court shall appoint an immigration attorney for the
child in addition to counsel appointed pursuant to subdivision (a).
To the maximum extent practicable, the court shall make every effort
to utilize the services of competent pro bono counsel who agree to
provide representation to the child without charge. The immigration
attorney may pursue special immigrant juvenile status for the ward
pursuant to Section 1101(a)(27)(J) of Title 8 of the United States
Code, or pursue any other avenue to obtain lawful permanent resident
status or United States citizenship. Before January 1, 2007, the
Judicial Council shall promulgate rules of court to establish
standards, training requirements, and guidelines for attorneys
eligible to be appointed under this paragraph.
(2) Paragraph (1) need not apply to a county that already
provides, or contracts for, those services, whether those services
are provided by social services agencies or attorneys.
SEC. 4. The requirement to provide legal representation pursuant
to subdivision (i) of Section 317, subdivision (f) of Section 366.26,
and subdivision (b) of Section 634 of the Welfare and Institutions
Code is contingent upon an appropriation in the annual Budget Act or
another statute.
SEC. 5. (a) Section 2.1 of this bill incorporates amendments to
Section 366.26 of the Welfare and Institutions Code proposed by both
this bill and AB 519. It shall only become operative if (1) both
bills are enacted and become effective on or before January 1, 2006,
(2) each bill amends Section 366.26 of the Welfare and Institutions
Code, (3) AB 1412 and SB 218 are not enacted or as enacted do not
amend that section, and (4) this bill is enacted after AB 519, in
which case Sections 2, 2.2, 2.3, 2.4, 2.5, 2.6, and 2.7 of this bill
shall not become operative.
(b) Section 2.2 of this bill incorporates amendments to Section
366.26 of the Welfare and Institutions Code proposed by both this
bill and AB 1412. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2006, (2)
each bill amends Section 366.26 of the Welfare and Institutions Code,
(3) AB 519 and SB 218 are not enacted or as enacted do not amend
that section, and (4) this bill is enacted after AB 1412, in which
case Sections 2, 2.1, 2.3, 2.4, 2.5, 2.6, and 2.7 of this bill shall
not become operative.
(c) Section 2.3 of this bill
incorporates amendments to Section 366.26 of the Welfare and
Institutions Code proposed by both this bill and SB 218. It shall
only become operative if (1) both bills are enacted and become
effective on or before January 1, 2006, (2) each bill amends Section
366.26 of the Welfare and Institutions Code, (3) AB 519 and AB 1412
are not enacted or as enacted do not amend that section, and (4) this
bill is enacted after SB 218, in which case Sections 2, 2.1, 2.2,
2.4, 2.5, 2.6, and 2.7 of this bill shall not become operative.
(d) Section 2.4 of this bill incorporates amendments to Section
366.26 of the Welfare and Institutions Code proposed by this bill, AB
519, and AB 1412. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2006,
(2) all three bills amend Section 366.26 of the Welfare and
Institutions Code, (3) SB 218 is not enacted or as enacted does not
amend that section and (4) this bill is enacted after AB 519 and AB
1412, in which case Sections 2, 2.1, 2.2, 2.3, 2.5, 2.6, and 2.7 of
this bill shall not become operative.
(e) Section 2.5 of this bill incorporates amendments to Section
366.26 of the Welfare and Institutions Code proposed by this bill, AB
519, and SB 218. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2006,
(2) all three bills amend Section 366.26 of the Welfare and
Institutions Code, (3) AB 1412 is not enacted or as enacted does not
amend that section and (4) this bill is enacted after AB 519 and SB
218, in which case Sections 2, 2.1, 2.2, 2.3, 2.4, 2.6, and 2.7 of
this bill shall not become operative.
(f) Section 2.6 of this bill incorporates amendments to Section
366.26 of the Welfare and Institutions Code proposed by this bill, AB
1412, and SB 218. It shall only become operative if (1) all three
bills are enacted and become effective on or before January 1, 2006,
(2) all three bills amend Section 366.26 of the Welfare and
Institutions Code, (3) AB 519 is not enacted or as enacted does not
amend that section and (4) this bill is enacted after AB 1412 and SB
218, in which case Sections 2, 2.1, 2.2, 2.3, 2.4, 2.5, and 2.7 of
this bill shall not become operative.
(g) Section 2.7 of this bill incorporates amendments to Section
366.26 of the Welfare and Institutions Code proposed by this bill, AB
519, AB 1412, and SB 218. It shall only become operative if (1) all
four bills are enacted and become effective on or before January 1,
2006, (2) all four bills amend Section 366.26 of the Welfare and
Institutions Code, and (3) this bill is enacted after AB 519, AB
1412, and SB 218 in which case Sections 2, 2.1, 2.2, 2.3, 2.4, 2.5,
and 2.6 of this bill shall not become operative.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code. Text-Pages 25, 34, 55, 79, 87, 92, 93, and 95.
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CORRECTIONS Text-Pages 25, 34, 55, 79, 87, 92, 93, and 95.
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