BILL NUMBER: SB 218 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 7, 2005
INTRODUCED BY Senator Scott
FEBRUARY 10, 2005
An act to amend Section 366.26 of the Welfare and Institutions
Code, relating to termination of parental rights.
LEGISLATIVE COUNSEL'S DIGEST
SB 218, as amended, Scott. Termination of parental rights:
prospective adoptive parents.
Existing law provides that if the court, by order or judgment,
declares a 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. Existing law provides that 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.
This bill would create an exception to that provision if the child
is living with a caretaker who has been designated by the court as a
prospective adoptive parent. The bill would authorize a court to
designate a current caretaker as a prospective adoptive parent if the
child has lived with the caretaker for at least 6 months
and , the caretaker has expressed the
desire a commitment to adopt the child ,
and the caretaker has taken at least one step to facilitate the
adoption, as specified . The bill would further provide that a
child living in the home of a designated prospective adoptive parent
may only be removed from that home after a noticed hearing in which
the court finds that removal from the home is in the child's best
interest , except as specified .
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 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 herein are the exclusive
procedures for conducting these hearings; Part 2 (commencing with
Section 3020) of Division 8 of the Family Code is not applicable to
these proceedings. 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, that 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
interests 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, 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 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, unless
the child is living with a caretaker who has been designated by the
court as a prospective adoptive parent. Notwithstanding Section 8704
of the Family Code or any other provision of law, the court may
designate a current caretaker as a prospective adoptive parent if the
child has lived with the caretaker for at least six months and the
caretaker has expressed the desire to adopt the child. A child living
in the home of a designated prospective adoptive parent may only be
removed from that home after a noticed hearing in which the court
finds that removal from the home is in the child's best interest.
With 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, 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 seven court days or 10 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.
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.
At the hearing, the court shall determine 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.
(B) 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 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 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 seven court days or 10
calendar days, whichever is longer, of the date of notification of
the removal, the child, the child's attorney, or the designated
prospective adoptive parent may petition for, or the court on its own
motion may set, a noticed hearing pursuant to paragraph (3).
(5) 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.