Many parents believe that when a .26 hearing is set that their parental rights are going to be automatically terminated. Even though termination of parental rights are the most common legal remedy advised at a .26 hearing, there are other options that the court will consider. Below are some of the other considerations that the court will consider during a selection and implementation hearing.
To begin the people present at the selection and implementation will be:
Under Cal Rules of Ct 5.530(b), the following may be present at the Welf & I C §366.26 hearing:
The child or nonminor dependent;
All parents, de facto parents, Indian custodians, and guardians of the child, or if no parent resides within the state or if their places of residence are not known, any adult relatives residing within the county or, if none, the adult relatives residing nearest the court;
Counsel for parents, de facto parents, adult relatives, or Indian custodian or the Indian tribe;
Counsel for the department;
The social worker;
The court clerk;
Any Court Appointed Special Advocate (CASA);
In a proceeding described by Cal Rules of Ct 5.480, a representative of the child's Indian tribe;
The official court reporter; and
The bailiff, at the court's discretion.
Seven permanent placement options. Although adoption is the favored permanent placement (see In re Jamie R. (2001) 90 CA4th 766, 773), seven options are available to the court at a §366.26 hearing, depending on the circumstances (Welf & I C §366.26(b)). In order of priority, they are the following:
*Permanently terminate parental rights when the evidence shows that the child is likely to be adopted and order that the child be placed for adoption (Welf & I C §366.26(b)(1),
This is the most commonly sought after remedy. The court will order that the parent's legal rights to the child be terminated. This will erase any legal ties the parent has to their child. The parents no longer hold the right to visit their child. The parent loses the right to correspondence, right to visit, right to information about the child's medical or educational status, and right to attend any hearing (or as the court puts it be considered a meaningful party).
*Order, without termination of parental rights, the plan of tribal customary adoption under Welf & I C §366.24, through tribal custom, traditions, or law of the Indian child's tribe, and upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set under §366.26(e)(2) (Welf & I C §366.26(b)(2)) (see chap 9);
This would fall under the ICWA and I will not discuss any ICWA exceptions here.
*Appoint a relative with whom the child currently resides as a legal guardian, accompanied by an order that letters of guardianship issue (Welf & I C §366.26(b)(3)) (see §§8.30, 8.40)
*Order the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Welf & I C §366.3 (Welf & I C §366.26(b)(6)) (see §8.45B);
This would be the case if the court has performed a home study of a perceptive relative who wishes to adopt the child. The court prefers to adopt to relatives than total strangers. If this is the case the parents can name some people who may be willing and able to adopt the child. Should this be the legal remedy the court follows, the parent's right are terminated but the parents may be able to maintain in contact with their child if they develop an agreement with the relatives.
Identify adoption as the permanent placement goal when evidence shows that the child is adoptable, but may be difficult to place, and continue the case for up to 180 days to enable the social worker to find an appropriate adoptive family (Welf & I C §366.26(b)(1), (4), (c)(3)) (see §§8.27, 8.41);
*Appoint a nonrelative legal guardian (Welf & I C §366.26(b)(5)) (see §8.44)
This grants legal custody to the caretakers but allows the parents the right to visit their child. The court will adopt an arrangement for visitation and contact schedule between the parents and the child.
*Order the child remain in foster care, also known as "another planned permanent living arrangement," (APPLA) subject to the conditions described in Welf & I C §366.26(c)(4) and periodic review under Welf & I C §366.4 (Welf & I C §366.26(b)(7)) (see §8.45).
This is called long term foster care. Even though the court does not like to call this option by what it really is, it is considered a last resort as the court wants permanency for the child. The child may be placed in a foster home or group home as they are not legally adopted and remain a ward of the state.
This is not legal advice. If you are facing a selection and implementation hearing, be sure to ask your counsel about your options.
Juvenile Dependency and