BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 218 S
Senator Scott B
As Amended April 7, 2005
Hearing Date: April 12, 2005 2
Welfare and Institutions Code 1
GMO:cjt 8
SUBJECT
Post-Termination of Parental Rights: Removal from
Caretaker
DESCRIPTION
This bill would provide that after termination of parental
rights and before a petition for adoption is granted by the
court, a child may be removed from the home of a caretaker
who has been designated as a prospective adoptive parent
only after notice is provided and, if a noticed person
objects, a noticed hearing is held. The child may be
removed from that caretaker's home if the court finds that
removal is in the best interest of the child.
The bill would provide that the above notice and noticed
hearing procedure does not apply if there is a risk of
physical or emotional harm to the child. In that event,
the Department of Social Services (DSS) or the licensed
adoption agency may remove the child immediately and then
proceed with the noticed hearing procedure.
The bill would provide that a court may designate a
dependent child's caretaker as a prospective adoptive
parent if specified conditions are met and the caretaker
has taken steps towards the goal of adopting the child.
BACKGROUND
Welfare and Institutions Code 366.26 authorizes the court
(more)
SB 218 (Scott)
Page 2
to terminate the parental rights of the parent or parents
of a child who has been adjudged a dependent of the court
and to determine the proper permanent placement for the
child. Upon making a finding that adoption is the
appropriate placement goal for the child, the court may
order that efforts be made to locate an appropriate
adoptive family for the child within a period not to exceed
180 days. [ 366.26(b)(2).] A petition for adoption may
not be granted, however, until the appellate rights of the
natural parents have been exhausted. During this time
period, i.e., between the termination of parental rights
hearing and the granting of a petition for adoption, the
Department of Social Services or a licensed adoption agency
is responsible for the custody and supervision of the child
and is entitled to the exclusive care and control of the
child at all times. [ 366.26(i).]
According to the author, the "exclusive care and control of
the child" provision under 366.26(j) has been interpreted
by appellate courts to give the DSS or the local agency
"nearly complete, unchecked authority to decide who adopts
the child." The decisions made by the DSS or the local
agency, in reference to this provision, is reviewable only
for abuse of discretion, or where the recommendation the
agency makes is "patently absurd," "capricious," or
"unquestionably not in the child's best interest." [ In re
Harry N. (2001) 93 Cal. App. 4th 1378.] Harry N. was a
case with very complicated facts that involved the
department's appeal of the juvenile court's continued
placement of a child with the foster parents who wanted to
adopt Harry, in spite of the department's decision to place
the child with his paternal relatives from Puerto Rico who
also wanted to adopt Harry, as well as appeals from all
parties on different motions. Harry N. follows a long line
of cases upholding the department's right to exclusive care
and control under 366.26(j) and authority to determine
placement. [Cf. Theodore D. , 58 Cal. App. 4th 721; In re
Stephanie M. (1994) 7 Cal. 4th 295.]
This bill is intended to prevent the removal of a dependent
child from his or her caretaker's home after parental
rights are terminated, if the caretaker is a designated
prospective adoptive parent, as defined.
CHANGES TO EXISTING LAW
SB 218 (Scott)
Page 3
1. Existing law provides that if the court declares a
child free from the custody and control of both parents
or one parent if the other parent 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.
[Welfare and Institutions Code 366.26. All references
are to the Welfare and Institutions Code unless otherwise
indicated.]
Existing law makes the Department of Social Services or a
licensed adoption agency responsible for the custody and
supervision of the child and thus entitles them to the
exclusive care and control of the child at all times
until a petition for adoption is granted. [ 366.26(j).]
This bill would, for the period between termination of
parental rights and the granting of a petition for
adoption, establish a procedure for the removal of a
dependent child from the home of a caretaker who is a
designated prospective adoptive parent. It would require
the department or local agency to provide notice prior to
removal of the child.
This bill would provide that the child, child's attorney,
or the designated prospective adoptive parent may
petition the court for a hearing, or the court on its own
motion may set a hearing, on the proposed removal of the
child. At the hearing, the court would determine whether
it would be in the best interest of the child to remove
that child from the caretaker's home. If no objection is
filed or hearing set within seven or ten calendar days
after notice of the proposed removal, whichever is
longer, the child may be removed.
The bill however would provide that no notice would be
required prior to removal of the child if there is a risk
of physical or emotional harm to the child if the child
continues to reside with the caretaker. A hearing would
then be held pursuant to the procedure established by the
bill.
2. Existing law does not provide for a caretaker of a
dependent child to petition the court at any dependency
SB 218 (Scott)
Page 4
proceeding after termination of parental rights for a
designation as a prospective adoptive parent. Existing
law does not confer on a dependent child's caretaker
standing to petition the court for a hearing if the
caretaker objects to the removal of a dependent child
from the caretaker's home.
This bill would permit the court, at the hearing to
terminate parental rights to a dependent child or at
anytime thereafter, to designate as a prospective
adoptive parent a caretaker (a) with whom the dependent
child has lived for at least six months; (b) who has
expressed a commitment to adopt the child; and (c) who
has taken at least one step to facilitate the adoption
process.
This bill would provide several examples of "steps" that
a caretaker may take to satisfy the third requirement for
designation as a prospective adoptive parent. (The
examples are listed in Comment 4.)
The bill would confer on a caretaker who is a designated
prospective adoptive parent standing to petition the
court for a hearing on whether it is in the best interest
of a child to remove that child from the caretaker's home
after termination of parental rights and before a
petition for adoption is granted.
COMMENT
1. Need for the bill
The author and the sponsor of the bill, the National
Association for Counsel of Children - Los Angeles,
believe that existing law does not protect the stability
of children post-termination of parental rights, because
the court's oversight function essentially evaporates
between the order to place the child for adoption and the
order granting the petition for adoption. Current law
gives the DSS and the licensed adoption agency unfettered
authority during this time period to remove a child from
a caretaker's home, they state, without the safeguard of
the court reviewing the decision. This is contrary to
"the collaborative decision-making process that occurs
earlier in dependency proceedings," they assert, where
SB 218 (Scott)
Page 5
the best interest of the child is protected at all times.
The sponsor contends that children who have lived for
long periods of time with their caretakers could be
psychologically harmed by being moved to a different home
pending a petition for adoption. Their proposed solution
is to require that when the DSS or the licensed adoption
agency recommends that a child be removed from a
caretaker who wishes to adopt the child, only to be
adopted by a different person, that recommendation should
be reviewed by the dependency court.
2. Noticed hearing prior to removal from caretaker's
home: caretaker's standing to object and petition the
court
For several years now, foster parents and relative
caretakers have been trying to expand their access to and
standing in dependency court to challenge decisions of
the Department of Social Services or local child welfare
agencies relative to the placement of a dependent child.
The statutes governing dependencies have been amended
repeatedly to encourage placement of dependent children
with their relatives, to try to keep families and
siblings together, and, if reunification fails, to speed
up the process of placing them into nourishing adoptive
homes so that they may be taken out of the foster care
system. Relative caretakers and foster parents who wish
to adopt the child enjoy a preference in the processing
of their applications by the department.
While relative caretakers have gained the edge on foster
parents in terms of preference when it comes to placement
for adoption, some foster parents who have bonded with
the children in their care and who have thought about
adopting the children themselves are still disappointed
when the children are removed from their home when a
relative shows up after parental rights were terminated,
or when the agency finds more suitable adoptive parents
for the child. In these cases, a caretaker has no
recourse but to challenge the DSS or agency's decision.
Such decisions are generally upheld unless there was an
abuse of discretion by the department or the agency.
["The Department has been given the resources for
investigation and evaluation of the placement decision.
SB 218 (Scott)
Page 6
The juvenile court's role is to decide if there was an
abuse of discretion in the decision. In re Harry N. ,
supra.]
The period between the orders terminating parental rights
and placement of the child into adoption and the order
granting a petition for adoption is when 366.26(j)
gives the DSS or the licensed adoption agency "exclusive
care and control" of the dependent child. The rationale
behind this is to ensure that all efforts are being
expended to find a suitable adoptive family, while the
natural parents' rights to appeal are being exhausted.
Under current 366.26(b)(2), the DSS or licensed
adoption agency has 180 days to locate an appropriate
adoptive family for the child.
a. Notice of proposed removal required
There may be a number of reasons why the department or
the agency may wish to remove the child from the
caretaker's home and place him or her in another home,
such as the home of a relative wishing to adopt the
child, or the home of another set of prospective
adoptive parents who appear to be more suitable for
the adoption. This bill would not affect the current
provision that gives the department or agency
"exclusive care and control" authority over the child
at this juncture, and its placement decisions have
been upheld consistently by the court, absent an abuse
of discretion.
However, SB 218 recognizes that there could be reasons
why a child should not be removed from a caretaker's
home, and those reasons could amount to removal not
being in the best interest of the child. Therefore,
rather than have the child removed and placed
elsewhere first, pending a review of the department's
decision which could only be challenged using an abuse
of discretion standard, this bill would establish a
notice and hearing procedure prior to removal.
This bill would require the department or agency to
notify the child (if the child is 10 years or older),
the child's attorney, and the caretaker who is a
designated prospective parent when the department or
agency proposes to remove the child from the
SB 218 (Scott)
Page 7
caretaker's home. [Provisions relating to the
caretaker's designation as a prospective adoptive
parent are discussed in Comment 3.] Notice must be
given as soon as possible after a decision to change
the child's placement (i.e., remove the child) is
made, in the same manner that all notices are given in
dependency proceedings.
b. If no objection is raised, removal is allowed;
objection is filed via petition for a hearing
An objection to the removal of the child from the
caretaker's home may be made by filing a petition for
a hearing. If no petition objecting to the removal is
filed, or the court on its own motion does not set a
hearing, the child may be removed without a hearing.
Allowing removal when no objection is made is very
important, according to the CWDA. "?[I]t would be
disruptive and time-consuming for all parties to
require a noticed hearing before any and all placement
changes, as many will occur without the need for such
a hearing."
SB 218 would permit a child, child's attorney, or
caretaker who is a designated prospective parent, to
file a petition with the court objecting to the
proposed removal of the child from the caretaker's
home, or the court may on its own motion set a
hearing. The petition must be filed, or the hearing
set, within seven days or ten calendar days, whichever
is longer, of the date of notification about the
proposed removal. The noticed hearing must be held as
soon as possible and not later than five court days
after the petition is filed.
In the interest of advancing the child's adoption and
facilitating the transfer of the child to the home of
another prospective adoptive parent if that is the
department or adoption agency's determination, the
author should reconsider this period of uncertainty
during which the department (and the child) does not
know if the removal will be made. Seven court days or
ten calendar days may be too long a period for the
department or agency to wait before they know that no
objection being made to the removal of a child. It
SB 218 (Scott)
Page 8
may make it easier on both the child's attorney and
the caretaker who wishes to object to have the
Judicial Council prepare a form that may be used for
this purpose, and shorten the time within which to
file the objection.
SHOULD THE JUDICIAL COUNCIL PREPARE A FORM TO BE USED
FOR THIS PURPOSE?
SHOULD AN OBJECTION TO THE REMOVAL, IN THE FORM OF A
STATUTORY FORM PETITION FOR A HEARING, BE FILED WITHIN
FIVE COURT DAYS OR SEVEN CALENDAR DAYS, WHICHEVER IS
LONGER?
This standing to petition the court directly to object
to a proposed removal is a major victory for
caretakers who have committed to adopting a child and
who have felt their world turned upside down when the
child they have taken care of for an extended period
is suddenly removed from their care at this juncture.
SB 218 confers this standing on a very limited class
of caretakers, however (see Comment 3). Therefore,
even the California Welfare Directors Association has
removed its initial opposition to this provision of
the bill.
c. Court to determine if removal is in the child's best
interest
At the hearing, the court must determine if removal of
the child from the caretaker's home is in the child's
best interest. This is the standard used in most
determinations that do not involve risk of harm to the
child. SB 218 would provide that the child may not be
removed from the caretaker's home unless the court
finds that removal is in the child's best interest.
This language places the burden on the department or
agency to justify their decision to remove the child
from the caretaker's home. This, according to the
proponents of the bill, builds in some accountability
on the part of the department or agency for the
decisions that they make, and that families who have
SB 218 (Scott)
Page 9
bonded around a child will now have an opportunity to
challenge what they may view as an arbitrary and
capricious decision.
d. Notice provision would not apply where there is
risk of physical or emotional harm
SB 218 would expressly provide that no notice would be
required when the department or licensed adoption
agency determines that the child must be removed from
the caretaker's home immediately, because of risk of
physical or emotional harm to the child. This
provision was suggested by the CWDA, to address
situations where, for example, the caretaker's other
children are being removed from that home due to
allegations of sexual abuse. Rather than expose the
dependent child to any risk, the bill would allow the
department or agency to remove the child and
temporarily place him or her in another home and then
notify the child's attorney, the child (if the child
is 10 years old or older), the caretaker who is a
designated prospective adoptive parent, and the court,
that the child had been removed. The procedure for
filing a petition and requesting a hearing on the
removal would then apply, as in the case where no risk
of physical or emotional harm is involved.
3. Caretaker: how to be designated a prospective adoptive
parent
Generally, if a foster parent or relative caretaker is
interested in adopting the dependent child placed in
their home, the social worker who has been working on the
case would have been made aware of the interest during
the preparation of reports at various stages of the
dependency proceeding, all the way to the hearing to
terminate parental rights (referred to as the 366.26
hearing). For example, the department is required under
366.21(i) to prepare a preliminary assessment of
prospective adoptive parents, including the relatives and
the child's current caretaker, and to prepare a report
for the court prior to a 366.26 hearing. A caretaker
is therefore already given many opportunities to express
his or her interest and commitment to adopt the child.
However, a caretaker has no standing to file a petition
SB 218 (Scott)
Page 10
directly with the court at any stage of the dependency
proceeding because the caretaker is not a party to the
action.
SB 218 would authorize the court, during the 366.26
hearing or later, to designate the caretaker as a
prospective adoptive parent if all of these conditions
are met:
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.
The bill also enumerates eight actions that, if one is
taken or participated in by the caretaker, would satisfy
the third requirement for designation as a prospective
adoptive parent. The list, while not exclusive, is
comprehensive and was compiled from suggestions made by
various groups involved in dependency hearings:
applying for a homestudy.
cooperating with an adoption homestudy.
being designated by the court or the licensed
adoption agency as the adoptive family.
requesting de facto parent status.
signing an adoptive placement agreement.
engaging in discussions regarding a postadoption
contact agreement.
working to overcome any impediments identified by
the department or licensed adoption agency.
attending classes required of prospective adoptive
parents.
The list represents various stages of the dependency
proceeding and case plan directed at the eventual
adoption of the child by the caretaker.
SB 218 would confer standing on a caretaker who has been
designated by the court as a child's prospective adoptive
parent to file a petition objecting to removal of the
child, under specified conditions. This standing is
limited to the petition for a hearing on the proposed
removal of the child, according to the author, and is not
meant to confer on the caretaker standing to object to
SB 218 (Scott)
Page 11
any other action the department or agency may take as to
the child.
SHOULD THIS INTENT BE STATED IN THE BILL?
Under SB 218, it is not clear that the caretaker must
take the affirmative step of becoming a designated
prospective adoptive parent before the department gives
notice of a proposed removal, and it is possible that the
petition for hearing may include a petition to be
designated as a prospective adoptive parent. According
to the author, this would be an unintended result. To
cure this defect, it is suggested that the bill require
the caretaker to request designation as a prospective
adoptive parent at the 366.26 (parental rights
termination) hearing or later, but no later than the next
six month status review hearing following the termination
of parental rights. This amendment and clarification
would foreclose opportunities for foster parents who
merely want to retain custody of the foster child for as
long as possible for economic reasons and abuse the new
law to gain that result.
SHOULD THE BILL REQUIRE THAT THE CARETAKER, IN ORDER TO
GAIN STANDING TO OBJECT TO A PROPOSED REMOVAL OF THE
CHILD, BE DESIGNATED AS A PROSPECTIVE ADOPTIVE PARENT AT
THE 366.26 HEARING OR NO LATER THAN THE SIX MONTH
STATUS REVIEW HEARING POST-TERMINATION OF PARENTAL
RIGHTS?
By imposing this time limitation, the caretaker who is
serious about adopting the child would have demonstrated
sufficient commitment that the limited standing to object
to a proposed removal may be justified.
In any case, the bill should make clear that a caretaker
who was not designated a prospective adoptive parent by
the court by the time of the six month status review
hearing would not have standing to file a petition
objecting to the removal of the child from the
caretaker's home.
Finally, at the hearing on the proposed removal of the
child, the court should inquire into the progress of the
prospective adoption of the child by the designated
SB 218 (Scott)
Page 12
adoptive parent, when considering whether it is in the
best interest of the child to remove the child from the
caretaker's home. This would ensure that a caretaker
does not simply ask for the designation and then delay
the adoption process so as to keep collecting foster care
payments for the child (which could be a reason for the
department proposing to remove the child to another
prospective adoptive home in the first place) and thus
seriously impacting the opportunity for the child to be
adopted into another home.
SHOULD THE BILL EXPRESSLY REQUIRE THE COURT, AT THE
REMOVAL HEARING, TO INQUIRE INTO THE PROGRESS MADE BY THE
CARETAKER TOWARDS COMPLETION OF THE ADOPTION?
By making this inquiry, the court may also find reasons
why the adoption may be delayed, or whether the removal
is being proposed for reasons unrelated to the
caretaker's qualifications as a prospective adoptive
parent.
4. CWDA: continuing concerns and suggested amendments
The CWDA, while acknowledging that they no longer oppose
the idea of a caretaker designated as a prospective
adoptive parent being able to request that the court hold
a hearing prior to a child's removal from their home, is
still concerned at the implications of this major change
in the status of a caretaker in the context of the
adoption process. Their concern relates to possible
delays in the adoption process that could occur, were the
caretaker, who has gained standing to petition the court
directly, to then take the view that this limited
standing makes the caretaker a party to the case, able to
then appeal the court's ruling unfavorable to him or her.
"We remain concerned about potential delays to the
adoption proceedings for a child when a hearing is
requested. At a minimum, any delays would have negative
consequences for the individual children affected. From
a broader perspective, however, extending the length of
time to adoption makes it more difficult for the state to
SB 218 (Scott)
Page 13
meet timeframes governing the permanency process for
foster children, potentially leading to federal
penalties."
The state is currently subject to federal penalties
already because in many cases it has not met the federal
timeframes for the adoption or permanent placement of a
foster child.
CWDA requests amendments that would "strike a balance"
between the prospective adoptive parent's ability to
request court review and the need to move the adoption
process forward once the hearing is held. The amendments
requested would clarify that the ability of a caretaker,
under SB 218, to request a hearing prior to removal of
the child from their home does not make prospective
adoptive parents a party to the case, nor does it give
them appeal rights if the court decides not to hold a
hearing or finds that the removal is in the child's best
interest. "This will enable the adoption process to move
forward upon the judge's ruling and avoid unnecessary
delays for the child."
SHOULD THE BILL BE AMENDED TO CLARIFY THAT THE STANDING
GAINED BY A CARETAKER UNDER SB 218 DOES NOT MAKE THE
CARETAKER A PARTY TO THE CASE NOR DOES IT CONFER ANY
RIGHT TO APPEAL THE COURT'S RULING?
As mentioned earlier, caretakers have been struggling for
years to gain standing to petition the court directly at
various stages of the dependency proceeding. Allowing
them to file a petition under SB 218 is a major movement
towards their gaining status in parity to a child's
attorney or the department or licensed adoption agency.
In view of the long established rule that gives the
department exclusive authority over the care and control
of a foster child who has been freed from parental
control so that the mandate to reach permanent placement
or adoption is achieved in a timely fashion, the author
should consider making the suggested amendment to the
bill.
5. Bill would not preclude agency investigation and
response to alleged abuse or neglect of the child
SB 218 (Scott)
Page 14
SB 218 would not preclude a county child protective
services agency from fully investigating and responding
promptly to allegations of child abuse or neglect. This
provision was requested by the county welfare directors,
who are concerned that the notice and hearing procedure
this bill would establish could delay their prompt action
when allegations of abuse or neglect under Penal Code
Sec. 11165.5 have been made.
Support: None Known
Opposition: California Association of Adoption Agencies
HISTORY
Source: Los Angeles Affiliate of the National Association
of Counsel for
Children
Related Pending Legislation: None Known
Prior Legislation: SB 166 (Scott, 2003) contained similar
provisions, withdrawn
from Committee
**************