Bill Text: CA SB1482 | 2011-2012 | Regular Session | Introduced
Bill Title: Juveniles: dependent children.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-03-22 - Referred to Com. on JUD. [SB1482 Detail]
Download: California-2011-SB1482-Introduced.html
BILL NUMBER: SB 1482 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Fuller
FEBRUARY 24, 2012
An act to amend Section 366.26 of the Welfare and Institutions
Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 1482, as introduced, Fuller. Juveniles: dependent children.
Existing law governs the placement of dependent children. The
juvenile court, after considering various reports and receiving
evidence in a proceeding to terminate parental rights to a dependent
child, is authorized to make findings and orders in a specified order
of preference that governs the actions that the court may take with
respect to the child. Under existing law, adoption is the first
preferred order. If the court finds that the child is unlikely to be
adopted, the court may appoint a relative with whom the child is
currently residing or a nonrelative as the child's legal guardian, in
that order, as an alternative to long-term foster care placement.
This bill would authorize a court to appoint a nonrelative or
relative with whom the child is not currently residing as legal
guardian for the child and to order that letters of guardianship be
issued.
Vote: majority. Appropriation: no. Fiscal committee: no.
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, as
amended by Section 15 of Chapter 287 of the Statutes of 2009, is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (d)
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 8616.5 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 (d) 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, 366.22, or
366.25, 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) Order, without termination of parental rights, the plan of
tribal customary adoption, as described in Section 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 pursuant to paragraph (2) of
subdivision (e).
(3) Appoint a relative or relatives with whom the child is
currently residing as legal guardian or guardians for the child, and
order that letters of guardianship issue.
(4) On making a finding under paragraph (3) of subdivision (c),
identify adoption or tribal customary 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.
(5) Appoint a nonrelative or relative with whom the child has
not been residing as legal guardian for the child
and order that letters of guardianship issue.
(6) 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, subdivision (b)
of Section 366.22, or subdivision (b) of Section 366.25, 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. Under these circumstances, the court shall terminate parental
rights unless either of the following applies:
(A) The child is living with a relative who is unable or unwilling
to adopt the child because of 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 through legal guardianship, and the
removal of the child from the custody of his or her relative would be
detrimental to the emotional well-being of the child. For purposes
of an Indian child, "relative" shall include an "extended family
member," as defined in the federal Indian Child Welfare Act (25
U.S.C. Sec. 1903(2)).
(B) 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:
(i) The parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.
(ii) A child 12 years of age or older objects to termination of
parental rights.
(iii) 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.
(iv) The child is living with a foster parent or Indian custodian
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 foster parent or Indian custodian would be detrimental to
the emotional well-being of the child. This clause does not apply to
any child 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.
(v) 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.
(vi) The child is an Indian child and there is a compelling reason
for determining that termination of parental rights would not be in
the best interest of the child, including, but not limited to:
(I) Termination of parental rights would substantially interfere
with the child's connection to his or her tribal community or the
child's tribal membership rights.
(II) The child's tribe has identified guardianship, long-term
foster care with a fit and willing relative, tribal customary
adoption, or another planned permanent living arrangement for the
child.
(C) For purposes of subparagraph (B), in the case of tribal
customary adoptions, Section 366.24 shall apply.
(D) If the court finds that termination of parental rights would
be detrimental to the child pursuant to clause (i), (ii), (iii),
(iv), (v), or (vi), it shall state its reasons in writing or on the
record.
(2) The court shall not terminate parental rights if:
(A) 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.
(B) In the case of an Indian child:
(i) At the hearing terminating parental rights, the court has
found that active efforts were not made as required in Section 361.7.
(ii) The court does not make a determination at the hearing
terminating parental rights, supported by evidence beyond a
reasonable doubt, including testimony of one or more "qualified
expert witnesses" as defined in Section 224.6, that the continued
custody of the child by the parent is likely to result in serious
emotional or physical damage to the child.
(iii) The court has ordered tribal customary adoption pursuant to
Section 366.24.
(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 the state or out of the state, 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), (2), (3), (5), or (6)
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 seven years of age 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 clause (i), (ii), (iii),
(iv), (v), or (vi) of subparagraph (B) 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 order that the child remain in long-term foster care,
or, in the case of an Indian child, consider a tribal customary
adoption pursuant to Section 366.24. 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, 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 or, in the case
of an Indian child, prospective tribal customary adoptive parents.
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, subdivision (b) of Section 366.22, and
subdivision (b) of Section 366.25 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) (1) 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.
(2) In the case of an Indian child, if the Indian child's tribe
has elected a permanent plan of tribal customary adoption, the court,
upon receiving the tribal customary adoption order will afford the
tribal customary adoption order full faith and credit to the same
extent that the court would afford full faith and credit to the
public acts, records, judicial proceedings, and judgments of any
other entity. Upon a determination that the tribal customary adoption
order may be afforded full faith and credit, consistent with Section
224.5, the court shall thereafter order a hearing to finalize the
adoption be set upon the filing of the adoption petition. The
prospective tribal customary adoptive parents and the child who is
the subject of the tribal customary adoption petition shall appear
before the court for the finalization hearing. The court shall
thereafter issue an order of adoption pursuant to Section 366.24.
(3) If a child who is the subject of a finalized tribal customary
adoption shows evidence of a developmental disability or mental
illness as a result of conditions existing before the tribal
customary adoption to the extent that the child cannot be
relinquished to a licensed adoption agency on the grounds that the
child is considered unadoptable, and of which condition the tribal
customary adoptive parent or parents had no knowledge or notice
before the entry of the tribal customary adoption order, a petition
setting forth those facts may be filed by the tribal customary
adoptive parent or parents with the juvenile court that granted the
tribal customary adoption petition. If these facts are proved to the
satisfaction of the juvenile court, it may make an order setting
aside the tribal customary adoption order. The set aside petition
shall be filed within five years of the issuance of the tribal
customary adoption order. The court clerk shall immediately notify
the child's tribe and the department in Sacramento of the petition
within 60 days after the notice of filing of the petition. The
department shall file a full report with the court and shall appear
before the court for the purpose of representing the child. Whenever
a final decree of tribal customary adoption has been vacated or set
aside, the child shall be returned to the custody of the county in
which the proceeding for tribal customary adoption was finalized. The
biological parent or parents of the child may petition for return of
custody. The disposition of the child after the court has entered an
order to set aside a tribal customary adoption shall include
consultation with the child's tribe.
(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 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 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 tribal customary adoption order evidencing that the Indian
child has been the subject of a tribal customary adoption shall be
afforded full faith and credit and shall have the same force and
effect as an order of adoption authorized by this section. The rights
and obligations of the parties as to the matters determined by the
Indian child's tribe shall be binding on all parties. A court shall
not order compliance with the order absent a finding that the party
seeking the enforcement participated, or attempted to participate, in
good faith, in family mediation services of the court or dispute
resolution through the tribe regarding the conflict, prior to the
filing of the enforcement action.
(3) 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, or declares the child
eligible for tribal customary adoption, 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, except in the case of a tribal customary adoption
where there is no termination of parental rights, 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
or tribal customary 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, 366.22, and 366.25 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 home study.
(B) Cooperating with an adoption home study.
(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.
(p) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 2. Section 366.26 of the Welfare and Institutions Code, as
added by Section 16 of Chapter 287 of the Statutes of 2009, is
amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (d)
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 8616.5 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 (d) 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, 366.22, or
366.25, 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) Appoint a relative or relatives with whom the child is
currently residing as legal guardian or guardians for the child, and
order that letters of guardianship issue.
(3) 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.
(4) Appoint a nonrelative or relative with whom
the child has not been residing as legal guardian
for the child and order that letters of guardianship issue.
(5) 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, subdivision (b)
of Section 366.22, or subdivision (b) of Section 366.25, 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. Under these circumstances, the court shall terminate parental
rights unless either of the following applies:
(A) The child is living with a relative who is unable or unwilling
to adopt the child because of 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 through legal guardianship, and the
removal of the child from the custody of his or her relative would be
detrimental to the emotional well-being of the child. For purposes
of an Indian child, "relative" shall include an "extended family
member," as defined in the federal Indian Child Welfare Act (25
U.S.C. Sec. 1903(2)).
(B) 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:
(i) The parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.
(ii) A child 12 years of age or older objects to termination of
parental rights.
(iii) 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.
(iv) The child is living with a foster parent or Indian custodian
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 foster parent or Indian custodian would be detrimental to
the emotional well-being of the child. This clause does not apply to
any child 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.
(v) 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.
(vi) The child is an Indian child and there is a compelling reason
for determining that termination of parental rights would not be in
the best interest of the child, including, but not limited to:
(I) Termination of parental rights would substantially interfere
with the child's connection to his or her tribal community or the
child's tribal membership rights.
(II) The child's tribe has identified guardianship, long-term
foster care with a fit and willing relative, or another planned
permanent living arrangement for the child.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to clause (i), (ii), (iii), (iv),
(v), or (vi), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if:
(A) 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.
(B) In the case of an Indian child:
(i) At the hearing terminating parental rights, the court has
found that active efforts were not made as required in Section 361.7.
(ii) The court does not make a determination at the hearing
terminating parental rights, supported by evidence beyond a
reasonable doubt, including testimony of one or more "qualified
expert witnesses" as defined in Section 224.6, that the continued
custody of the child by the parent is likely to result in serious
emotional or physical damage to the child.
(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 the state or out of the state, 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 (4) 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 seven years
of age 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 clause (i), (ii), (iii),
(iv), (v), or (vi) of subparagraph (B) 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, 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, subdivision (b) of Section 366.22, and
subdivision (b) of Section 366.25 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 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 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, 366.22, and 366.25 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 home study.
(B) Cooperating with an adoption home study.
(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.
(p) This section shall become operative on January 1, 2014.
