SB 218 Expediting Legal Guardianship

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0 height="100%"><tr> <td valign="top" width=168 BGCOLOR="#000000" TEXT="#F7F7FF" background="042a11c3.gif"> <bR> </td> <td valign="top" BGCOLOR="#000000" TEXT="#F7F7FF"> <div> <FONT SIZE="5" COLOR="#99CC00" FACE="Arial" ><B>Foster & Kinship Care Education </B></FONT>     <FONT SIZE="1" COLOR="#CCCC66" FACE="Arial" >|   <A HREF="index.htm" TARGET="_top" TITLE="Foster Kinship Care Education "><U><B>home</B></U></A></FONT></div> <div> <A HREF="id115.htm" TARGET="_top" TITLE="Foster Care Ombudsman Complaint Form"><U><IMG SRC="1e70e0e0.gif" border=0 width="14" height="14" ALT="previous" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></U></A>   <A HREF="id117.htm" TARGET="_top" TITLE="Interstate Compact on the Placement of C"><U><IMG SRC="1e80e0e0.gif" border=0 width="14" height="14" ALT="next" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></U></A>       <IMG BORDER="0" SRC="1x1.gif" HEIGHT="14" ALIGN="BOTTOM" HSPACE="0" VSPACE="0" WIDTH="14">    <A HREF="index.htm" TARGET="_top" TITLE="Foster Kinship Care Education "><U><IMG SRC="1e90e0e0.gif" border=0 width="14" height="14" ALT="up" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></U></A></div> <div> <IMG SRC="041f4010.gif" border=0 width="500" height="1" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></div> <div> SB 218 Expediting Legal Guardianship</div> <div> <B>Senate Bill No. 218</B></div> <div> CHAPTER 626</div> <div> An act to amend Section 366.26 of the Welfare and Institutions Code,</div> <div> relating to termination of parental rights.</div> <div> [Approved by Governor October 7, 2005. Filed with</div> <div> Secretary of State October 7, 2005.]</div> <div> legislative counsel?s digest</div> <div> SB 218, Scott. Termination of parental rights: prospective adoptive</div> <div> parents.</div> <div> Existing law provides that if the court, by order or judgment, declares a</div> <div> child free from the custody and control of both parents, or one parent if the</div> <div> other does not have custody and control, the court shall at the same time</div> <div> order the child referred to the State Department of Social Services or a</div> <div> licensed adoption agency for adoptive placement by the agency. Existing</div> <div> law provides that the State Department of Social Services or licensed</div> <div> adoption agency shall be responsible for the custody and supervision of the</div> <div> child and shall be entitled to the exclusive care and control of the child at</div> <div> all times until a petition for adoption is granted.</div> <div> This bill would create an exception to that provision if the child is living</div> <div> with a caretaker who has been designated by the court as a prospective</div> <div> adoptive parent. The bill would authorize a court to designate a current</div> <div> caretaker as a prospective adoptive parent if the child has lived with the</div> <div> caretaker for at least 6 months, the caretaker has expressed a commitment</div> <div> to adopt the child, and the caretaker has taken at least one step to facilitate</div> <div> the adoption, as specified. The bill would further provide that a child</div> <div> living in the home of a designated prospective adoptive parent may only</div> <div> be removed from that home after a noticed hearing in which the court finds</div> <div> that removal from the home is in the child?s best interest, except as</div> <div> specified. The bill would require the Judicial Council to prepare forms to</div> <div> facilitate the filing of petitions under these provisions.</div> <div> The bill would incorporate additional changes in Section 366.26 of the</div> <div> Welfare and Institutions Code, proposed by AB 519, AB 1338, and AB</div> <div> 1412, to be operative only if one or more of those bills and this bill are</div> <div> chaptered and become effective on or before January 1, 2006, and this bill</div> <div> is chaptered last.</div> <div> <I>The people of the State of California do enact as follows:</I></div> <div> SECTION 1. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 93</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified herein are the exclusive procedures</div> <div> for conducting these hearings; Part 2 (commencing with Section 3020) of</div> <div> Division 8 of the Family Code is not applicable to these proceedings.</div> <div> Section 8714.7 of the Family Code is applicable and available to all</div> <div> dependent children meeting the requirements of that section, if the</div> <div> postadoption contact agreement has been entered into voluntarily. For</div> <div> children who are adjudged dependent children of the juvenile court</div> <div> pursuant to subdivision (c) of Section 360, this section and Sections 8604,</div> <div> 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing</div> <div> with Section 7660) of Part 3 of Division 12 of the Family Code specify the</div> <div> exclusive procedures for permanently terminating parental rights with</div> <div> regard to, or establishing legal guardianship of, the child while the child is</div> <div> a dependent child of the juvenile court.</div> <div> (b) At the hearing, that shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>2 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each and every</div> <div> hearing at which the court was required to consider reasonable efforts or</div> <div> services, the court has found that reasonable efforts were not made or that</div> <div> reasonable services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>3 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older who is placed in a group home for six months or longer</div> <div> from the date the child entered foster care, to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential adoptive parents. The public agency may ask any other</div> <div> child to provide that information, as appropriate. During the 180-day</div> <div> period, the public agency shall, to the extent possible, contact other private</div> <div> and public adoption agencies regarding the availability of the child for</div> <div> adoption. During the 180-day period, the public agency shall conduct the</div> <div> search for adoptive parents in the same manner as prescribed for children</div> <div> in Sections 8708 and 8709 of the Family Code. At the expiration of this</div> <div> period, another hearing shall be held and the court shall proceed pursuant</div> <div> to paragraph (1) or (3) of subdivision (b). For purposes of this section, a</div> <div> child may only be found to be difficult to place for adoption if there is no</div> <div> identified or available prospective adoptive parent for the child because of</div> <div> the child?s membership in a sibling group, or the presence of a diagnosed</div> <div> medical, physical, or mental handicap, or the child is the age of seven</div> <div> years or more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interests of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older who is placed in a group home for six</div> <div> months or longer from the date the child entered foster care, shall be asked</div> <div> to identify any individuals, other than the child?s siblings, who are</div> <div> important to the child, in order to identify potential guardians. The agency</div> <div> may ask any other child to provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>4 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>5 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, the court shall proceed as follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for not to exceed 30 days as</div> <div> necessary to appoint counsel, and to enable counsel to become acquainted</div> <div> with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exist:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) Any order of the court permanently terminating parental rights under</div> <div> this section shall be conclusive and binding upon the child, upon the parent</div> <div> or parents and upon all other persons who have been served with citation</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>6 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> by publication or otherwise as provided in this chapter. After making the</div> <div> order, the court shall have no power to set aside, change, or modify it, but</div> <div> nothing in this section shall be construed to limit the right to appeal the</div> <div> order.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following applies:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>7 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>8 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>9 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> SECTION 1.1. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified herein are the exclusive procedures</div> <div> for conducting these hearings; Part 2 (commencing with Section 3020) of</div> <div> Division 8 of the Family Code is not applicable to these proceedings.</div> <div> Section 8714.7 of the Family Code is applicable and available to all</div> <div> dependent children meeting the requirements of that section, if the</div> <div> postadoption contact agreement has been entered into voluntarily. For</div> <div> children who are adjudged dependent children of the juvenile court</div> <div> pursuant to subdivision (c) of Section 360, this section and Sections 8604,</div> <div> 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing</div> <div> with Section 7660) of Part 3 of Division 12 of the Family Code specify the</div> <div> exclusive procedures for permanently terminating parental rights with</div> <div> regard to, or establishing legal guardianship of, the child while the child is</div> <div> a dependent child of the juvenile court.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>10 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (b) At the hearing, shall be held in juvenile court for all children who</div> <div> are dependents of the juvenile court, the court, in order to provide stable,</div> <div> permanent homes for these children, shall review the report as specified in</div> <div> Section 361.5, 366.21, or 366.22, shall indicate that the court has read and</div> <div> considered it, shall receive other evidence that the parties may present, and</div> <div> then shall make findings and orders in the following order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>11 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each hearing at</div> <div> which the court was required to consider reasonable efforts or services, the</div> <div> court has found that reasonable efforts were not made or that reasonable</div> <div> services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older who is placed in a group home for six months or longer</div> <div> from the date the child entered foster care, to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential adoptive parents. The public agency may ask any other</div> <div> child to provide that information, as appropriate. During the 180-day</div> <div> period, the public agency shall, to the extent possible, contact other private</div> <div> and public adoption agencies regarding the availability of the child for</div> <div> adoption. During the 180-day period, the public agency shall conduct the</div> <div> search for adoptive parents in the same manner as prescribed for children</div> <div> in Sections 8708 and 8709 of the Family Code. At the expiration of this</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>12 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> period, another hearing shall be held and the court shall proceed pursuant</div> <div> to paragraph (1) or (3) of subdivision (b). For purposes of this section, a</div> <div> child may only be found to be difficult to place for adoption if there is no</div> <div> identified or available prospective adoptive parent for the child because of</div> <div> the child?s membership in a sibling group, or the presence of a diagnosed</div> <div> medical, physical, or mental handicap, or the child is the age of seven</div> <div> years or more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interests of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older who is placed in a group home for six</div> <div> months or longer from the date the child entered foster care, shall be asked</div> <div> to identify any individuals, other than the child?s siblings, who are</div> <div> important to the child, in order to identify potential guardians. The agency</div> <div> may ask any other child to provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>13 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, the court shall proceed as follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>14 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for not to exceed 30 days as</div> <div> necessary to appoint counsel, and to enable counsel to become acquainted</div> <div> with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exists:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) (1) Any order of the court permanently terminating parental rights</div> <div> under this section shall be conclusive and binding upon the child, upon the</div> <div> parent or parents and upon all other persons who have been served with</div> <div> citation by publication or otherwise as provided in this chapter. After</div> <div> making the order, the juvenile court shall have no power to set aside,</div> <div> change, or modify it, except as provided in paragraph (2), but nothing in</div> <div> this section shall be construed to limit the right to appeal the order.</div> <div> (2) A child who has not been adopted after the passage of at least three</div> <div> years from the date the court terminated parental rights and for whom the</div> <div> court has determined that adoption is no longer the permanent plan may</div> <div> petition the juvenile court to reinstate parental rights pursuant to the</div> <div> procedure prescribed by Section 388. The child may file the petition prior</div> <div> to the expiration of this three-year period if the State Department of Social</div> <div> Services or licensed adoption agency that is responsible for custody and</div> <div> supervision of the child as described in subdivision (j) and the child</div> <div> stipulate that the child is no longer likely to be adopted. A child over 12</div> <div> years of age shall sign the petition in the absence of a showing of good</div> <div> cause as to why the child could not do so. If it appears that the best</div> <div> interests of the child may be promoted by reinstatement of parental rights,</div> <div> the court shall order that a hearing be held and shall give prior notice, or</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>15 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> cause prior notice to be given, to the social worker or probation officer and</div> <div> to the child?s attorney of record, or, if there is no attorney of record for the</div> <div> child, to the child, and the child?s tribe, if applicable, by means prescribed</div> <div> by subdivision (c) of Section 297. The court shall order the child or the</div> <div> social worker or probation officer to give prior notice of the hearing to the</div> <div> child?s former parent or parents whose parental rights were terminated in</div> <div> the manner prescribed by subdivision (f) of Section 294 where the</div> <div> recommendation is adoption. The juvenile court shall grant the petition if</div> <div> it finds by clear and convincing evidence that the child is no longer likely</div> <div> to be adopted and that reinstatement of parental rights is in the child?s best</div> <div> interest. If the court reinstates parental rights over a child who is under 12</div> <div> years of age and for whom the new permanent plan will not be</div> <div> reunification with a parent or legal guardian, the court shall specify the</div> <div> factual basis for its findings that it is in the best interest of the child to</div> <div> reinstate parental rights. This subdivision is intended to be retroactive and</div> <div> applies to any child who is under the jurisdiction of the juvenile court at</div> <div> the time of the hearing regardless of the date parental rights were</div> <div> terminated.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following apply:</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>16 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>17 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>18 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> SEC. 1.2. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>19 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified in this section are the exclusive</div> <div> procedures for conducting these hearings; Part 2 (commencing with</div> <div> Section 3020) of Division 8 of the Family Code is not applicable to these</div> <div> proceedings. Section 8714.7 of the Family Code is applicable and</div> <div> available to all dependent children meeting the requirements of that</div> <div> section, if the postadoption contact agreement has been entered into</div> <div> voluntarily. For children who are adjudged dependent children of the</div> <div> juvenile court pursuant to subdivision (c) of Section 360, this section and</div> <div> Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5</div> <div> (commencing with Section 7660) of Part 3 of Division 12 of the Family</div> <div> Code specify the exclusive procedures for permanently terminating</div> <div> parental rights with regard to, or establishing legal guardianship of, the</div> <div> child while the child is a dependent child of the juvenile court.</div> <div> (b) At the hearing, shall be held in juvenile court for all children who</div> <div> are dependents of the juvenile court, the court, in order to provide stable,</div> <div> permanent homes for these children, shall review the report as specified in</div> <div> Section 361.5, 366.21, or 366.22, shall indicate that the court has read and</div> <div> considered it, shall receive other evidence that the parties may present, and</div> <div> then shall make findings and orders in the following order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives, the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>20 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each and every</div> <div> hearing at which the court was required to consider reasonable efforts or</div> <div> services, the court has found that reasonable efforts were not made or that</div> <div> reasonable services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>21 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older who is placed in a group home for six months or longer</div> <div> from the date the child entered foster care, to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential adoptive parents. The public agency may ask any other</div> <div> child to provide that information, as appropriate. During the 180-day</div> <div> period, the public agency shall, to the extent possible, contact other private</div> <div> and public adoption agencies regarding the availability of the child for</div> <div> adoption. During the 180-day period, the public agency shall conduct the</div> <div> search for adoptive parents in the same manner as prescribed for children</div> <div> in Sections 8708 and 8709 of the Family Code. At the expiration of this</div> <div> period, another hearing shall be held and the court shall proceed pursuant</div> <div> to paragraph (1) or (3) of subdivision (b). For purposes of this section, a</div> <div> child may only be found to be difficult to place for adoption if there is no</div> <div> identified or available prospective adoptive parent for the child because of</div> <div> the child?s membership in a sibling group, or the presence of a diagnosed</div> <div> medical, physical, or mental handicap, or the child is the age of seven</div> <div> years or more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interest of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older who is placed in a group home for six</div> <div> months or longer from the date the child entered foster care, shall be asked</div> <div> to identify any individuals, other than the child?s siblings, who are</div> <div> important to the child, in order to identify potential guardians. The agency</div> <div> may ask any other child to provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>22 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, including, in the case of any child who is not a lawful</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>23 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> permanent resident or citizen of the United States, counsel appointed</div> <div> pursuant to subdivision (i) of Section 317, the court shall proceed as</div> <div> follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for not to exceed 30 days as</div> <div> necessary to appoint counsel, and to enable counsel to become acquainted</div> <div> with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exist:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) Any order of the court permanently terminating parental rights under</div> <div> this section shall be conclusive and binding upon the child, upon the parent</div> <div> or parents and upon all other persons who have been served with a citation</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>24 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> by publication or otherwise as provided in this chapter. After making the</div> <div> order, the court shall have no power to set aside, change, or modify it, but</div> <div> nothing in this section shall be construed to limit the right to appeal the</div> <div> order.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following applies:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>25 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>26 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>27 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> SEC. 1.3. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified herein are the exclusive procedures</div> <div> for conducting these hearings; Part 2 (commencing with Section 3020) of</div> <div> Division 8 of the Family Code is not applicable to these proceedings.</div> <div> Section 8714.7 of the Family Code is applicable and available to all</div> <div> dependent children meeting the requirements of that section, if the</div> <div> postadoption contact agreement has been entered into voluntarily. For</div> <div> children who are adjudged dependent children of the juvenile court</div> <div> pursuant to subdivision (c) of Section 360, this section and Sections 8604,</div> <div> 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing</div> <div> with Section 7660) of Part 3 of Division 12 of the Family Code specify the</div> <div> exclusive procedures for permanently terminating parental rights with</div> <div> regard to, or establishing legal guardianship of, the child while the child is</div> <div> a dependent child of the juvenile court.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>28 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (b) At the hearing, that shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>29 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each and every</div> <div> hearing at which the court was required to consider reasonable efforts or</div> <div> services, the court has found that reasonable efforts were not made or that</div> <div> reasonable services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older, to identify any individuals, other than the child?s siblings,</div> <div> who are important to the child, in order to identify potential adoptive</div> <div> parents. The public agency may ask any other child to provide that</div> <div> information, as appropriate. During the 180-day period, the public agency</div> <div> shall, to the extent possible, contact other private and public adoption</div> <div> agencies regarding the availability of the child for adoption. During the</div> <div> 180-day period, the public agency shall conduct the search for adoptive</div> <div> parents in the same manner as prescribed for children in Sections 8708 and</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>30 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> 8709 of the Family Code. At the expiration of this period, another hearing</div> <div> shall be held and the court shall proceed pursuant to paragraph (1) or (3) of</div> <div> subdivision (b). For purposes of this section, a child may only be found to</div> <div> be difficult to place for adoption if there is no identified or available</div> <div> prospective adoptive parent for the child because of the child?s</div> <div> membership in a sibling group, or the presence of a diagnosed medical,</div> <div> physical, or mental handicap, or the child is the age of seven years or</div> <div> more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interests of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older, shall be asked to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential guardians. The agency may ask any other child to</div> <div> provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>31 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, the court shall proceed as follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>32 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for a period of time not to</div> <div> exceed 30 days as necessary to appoint counsel, and to enable counsel to</div> <div> become acquainted with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exist:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) Any order of the court permanently terminating parental rights under</div> <div> this section shall be conclusive and binding upon the child, upon the parent</div> <div> or parents and upon all other persons who have been served with citation</div> <div> by publication or otherwise as provided in this chapter. After making the</div> <div> order, the court shall have no power to set aside, change, or modify it, but</div> <div> nothing in this section shall be construed to limit the right to appeal the</div> <div> order.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>33 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following applies:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>34 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>35 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>36 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> (o) The implementation and operation of the amendments to paragraph</div> <div> (3) of subdivision (c) and subparagraph (A) of paragraph (4) of</div> <div> subdivision (c) enacted at the 2005-06 Regular Session shall be subject to</div> <div> appropriation through the budget process and by phase, as provided in</div> <div> Section 366.35.</div> <div> SEC. 1.4. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified in this section are the exclusive</div> <div> procedures for conducting these hearings; Part 2 (commencing with</div> <div> Section 3020) of Division 8 of the Family Code is not applicable to these</div> <div> proceedings. Section 8714.7 of the Family Code is applicable and</div> <div> available to all dependent children meeting the requirements of that</div> <div> section, if the postadoption contact agreement has been entered into</div> <div> voluntarily. For children who are adjudged dependent children of the</div> <div> juvenile court pursuant to subdivision (c) of Section 360, this section and</div> <div> Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5</div> <div> (commencing with Section 7660) of Part 3 of Division 12 of the Family</div> <div> Code specify the exclusive procedures for permanently terminating</div> <div> parental rights with regard to, or establishing legal guardianship of, the</div> <div> child while the child is a dependent child of the juvenile court.</div> <div> (b) At the hearing, which shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>37 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives, the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>38 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each hearing at</div> <div> which the court was required to consider reasonable efforts or services, the</div> <div> court has found that reasonable efforts were not made or that reasonable</div> <div> services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older who is placed in a group home for six months or longer</div> <div> from the date the child entered foster care, to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential adoptive parents. The public agency may ask any other</div> <div> child to provide that information, as appropriate. During the 180-day</div> <div> period, the public agency shall, to the extent possible, contact other private</div> <div> and public adoption agencies regarding the availability of the child for</div> <div> adoption. During the 180-day period, the public agency shall conduct the</div> <div> search for adoptive parents in the same manner as prescribed for children</div> <div> in Sections 8708 and 8709 of the Family Code. At the expiration of this</div> <div> period, another hearing shall be held and the court shall proceed pursuant</div> <div> to paragraph (1) or (3) of subdivision (b). For purposes of this section, a</div> <div> child may only be found to be difficult to place for adoption if there is no</div> <div> identified or available prospective adoptive parent for the child because of</div> <div> the child?s membership in a sibling group, or the presence of a diagnosed</div> <div> medical, physical, or mental handicap, or the child is the age of seven</div> <div> years or more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>39 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interest of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older who is placed in a group home for six</div> <div> months or longer from the date the child entered foster care, shall be asked</div> <div> to identify any individuals, other than the child?s siblings, who are</div> <div> important to the child, in order to identify potential guardians. The agency</div> <div> may ask any other child to provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>40 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, including, in the case of any child who is not a lawful</div> <div> permanent resident or citizen of the United States, counsel appointed</div> <div> pursuant to subdivision (i) of Section 317, the court shall proceed as</div> <div> follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for not to exceed 30 days as</div> <div> necessary to appoint counsel, and to enable counsel to become acquainted</div> <div> with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>41 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exists:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) (1) Any order of the court permanently terminating parental rights</div> <div> under this section shall be conclusive and binding upon the child, upon the</div> <div> parent or parents and upon all other persons who have been served with a</div> <div> citation by publication or otherwise as provided in this chapter. After</div> <div> making the order, the juvenile court shall have no power to set aside,</div> <div> change, or modify it, except as provided in paragraph (2), but nothing in</div> <div> this section shall be construed to limit the right to appeal the order.</div> <div> (2) A child who has not been adopted after the passage of at least three</div> <div> years from the date the court terminated parental rights and for whom the</div> <div> court has determined that adoption is no longer the permanent plan may</div> <div> petition the juvenile court to reinstate parental rights pursuant to the</div> <div> procedure prescribed by Section 388. The child may file the petition prior</div> <div> to the expiration of this three-year period if the State Department of Social</div> <div> Services or licensed adoption agency that is responsible for custody and</div> <div> supervision of the child as described in subdivision (j) and the child</div> <div> stipulate that the child is no longer likely to be adopted. A child over 12</div> <div> years of age shall sign the petition in the absence of a showing of good</div> <div> cause as to why the child could not do so. If it appears that the best</div> <div> interests of the child may be promoted by reinstatement of parental rights,</div> <div> the court shall order that a hearing be held and shall give prior notice, or</div> <div> cause prior notice to be given, to the social worker or probation officer and</div> <div> to the child?s attorney of record, or, if there is no attorney of record for the</div> <div> child, to the child, and the child?s tribe, if applicable, by means prescribed</div> <div> by subdivision (c) of Section 297. The court shall order the child or the</div> <div> social worker or probation officer to give prior notice of the hearing to the</div> <div> child?s former parent or parents whose parental rights were terminated in</div> <div> the manner prescribed by subdivision (f) of Section 294 where the</div> <div> recommendation is adoption. The juvenile court shall grant the petition if</div> <div> it finds by clear and convincing evidence that the child is no longer likely</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>42 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> to be adopted and that reinstatement of parental rights is in the child?s best</div> <div> interest. If the court reinstates parental rights over a child who is under 12</div> <div> years of age and for whom the new permanent plan will not be</div> <div> reunification with a parent or legal guardian, the court shall specify the</div> <div> factual basis for its findings that it is in the best interest of the child to</div> <div> reinstate parental rights. This subdivision is intended to be retroactive and</div> <div> applies to any child who is under the jurisdiction of the juvenile court at</div> <div> the time of the hearing regardless of the date parental rights were</div> <div> terminated.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following apply:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>43 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>44 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>45 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> SEC. 1.5. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified herein are the exclusive procedures</div> <div> for conducting these hearings; Part 2 (commencing with Section 3020) of</div> <div> Division 8 of the Family Code is not applicable to these proceedings.</div> <div> Section 8714.7 of the Family Code is applicable and available to all</div> <div> dependent children meeting the requirements of that section, if the</div> <div> postadoption contact agreement has been entered into voluntarily. For</div> <div> children who are adjudged dependent children of the juvenile court</div> <div> pursuant to subdivision (c) of Section 360, this section and Sections 8604,</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>46 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing</div> <div> with Section 7660) of Part 3 of Division 12 of the Family Code specify the</div> <div> exclusive procedures for permanently terminating parental rights with</div> <div> regard to, or establishing legal guardianship of, the child while the child is</div> <div> a dependent child of the juvenile court.</div> <div> (b) At the hearing, which shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>47 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each hearing at</div> <div> which the court was required to consider reasonable efforts or services, the</div> <div> court has found that reasonable efforts were not made or that reasonable</div> <div> services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older, to identify any individuals, other than the child?s siblings,</div> <div> who are important to the child, in order to identify potential adoptive</div> <div> parents. The public agency may ask any other child to provide that</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>48 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> information, as appropriate. During the 180-day period, the public agency</div> <div> shall, to the extent possible, contact other private and public adoption</div> <div> agencies regarding the availability of the child for adoption. During the</div> <div> 180-day period, the public agency shall conduct the search for adoptive</div> <div> parents in the same manner as prescribed for children in Sections 8708 and</div> <div> 8709 of the Family Code. At the expiration of this period, another hearing</div> <div> shall be held and the court shall proceed pursuant to paragraph (1) or (3) of</div> <div> subdivision (b). For purposes of this section, a child may only be found to</div> <div> be difficult to place for adoption if there is no identified or available</div> <div> prospective adoptive parent for the child because of the child?s</div> <div> membership in a sibling group, or the presence of a diagnosed medical,</div> <div> physical, or mental handicap, or the child is the age of seven years or</div> <div> more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interests of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older, shall be asked to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential guardians. The agency may ask any other child to</div> <div> provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>49 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, the court shall proceed as follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>50 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for a period of time not to</div> <div> exceed 30 days as necessary to appoint counsel, and to enable counsel to</div> <div> become acquainted with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exists:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) (1) Any order of the court permanently terminating parental rights</div> <div> under this section shall be conclusive and binding upon the child, upon the</div> <div> parent or parents and upon all other persons who have been served with</div> <div> citation by publication or otherwise as provided in this chapter. After</div> <div> making the order, the juvenile court shall have no power to set aside,</div> <div> change, or modify it, except as provided in paragraph (2), but nothing in</div> <div> this section shall be construed to limit the right to appeal the order.</div> <div> (2) A child who has not been adopted after the passage of at least three</div> <div> years from the date the court terminated parental rights and for whom the</div> <div> court has determined that adoption is no longer the permanent plan may</div> <div> petition the juvenile court to reinstate parental rights pursuant to the</div> <div> procedure prescribed by Section 388. The child may file the petition prior</div> <div> to the expiration of this three-year period if the State Department of Social</div> <div> Services or licensed adoption agency that is responsible for custody and</div> <div> supervision of the child as described in subdivision (j) and the child</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>51 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> stipulate that the child is no longer likely to be adopted. A child over 12</div> <div> years of age shall sign the petition in the absence of a showing of good</div> <div> cause as to why the child could not do so. If it appears that the best</div> <div> interests of the child may be promoted by reinstatement of parental rights,</div> <div> the court shall order that a hearing be held and shall give prior notice, or</div> <div> cause prior notice to be given, to the social worker or probation officer and</div> <div> to the child?s attorney of record, or, if there is no attorney of record for the</div> <div> child, to the child, and the child?s tribe, if applicable, by means prescribed</div> <div> by subdivision (c) of Section 297. The court shall order the child or the</div> <div> social worker or probation officer to give prior notice of the hearing to the</div> <div> child?s former parent or parents whose parental rights were terminated in</div> <div> the manner prescribed by subdivision (f) of Section 294 where the</div> <div> recommendation is adoption. The juvenile court shall grant the petition if</div> <div> it finds by clear and convincing evidence that the child is no longer likely</div> <div> to be adopted and that reinstatement of parental rights is in the child?s best</div> <div> interest. If the court reinstates parental rights over a child who is under 12</div> <div> years of age and for whom the new permanent plan will not be</div> <div> reunification with a parent or legal guardian, the court shall specify the</div> <div> factual basis for its findings that it is in the best interest of the child to</div> <div> reinstate parental rights. This subdivision is intended to be retroactive and</div> <div> applies to any child who is under the jurisdiction of the juvenile court at</div> <div> the time of the hearing regardless of the date parental rights were</div> <div> terminated.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>52 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following apply:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>53 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>54 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>55 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> (o) The implementation and operation of the amendments to paragraph</div> <div> (3) of subdivision (c) and subparagraph (A) of paragraph (4) of</div> <div> subdivision (c) enacted at the 2005-06 Regular Session shall be subject to</div> <div> appropriation through the budget process and by phase, as provided in</div> <div> Section 366.35.</div> <div> SEC. 1.6. Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> Section 360. The procedures specified in this section are the exclusive</div> <div> procedures for conducting these hearings; Part 2 (commencing with</div> <div> Section 3020) of Division 8 of the Family Code is not applicable to these</div> <div> proceedings. Section 8714.7 of the Family Code is applicable and</div> <div> available to all dependent children meeting the requirements of that</div> <div> section, if the postadoption contact agreement has been entered into</div> <div> voluntarily. For children who are adjudged dependent children of the</div> <div> juvenile court pursuant to subdivision (c) of Section 360, this section and</div> <div> Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5</div> <div> (commencing with Section 7660) of Part 3 of Division 12 of the Family</div> <div> Code specify the exclusive procedures for permanently terminating</div> <div> parental rights with regard to, or establishing legal guardianship of, the</div> <div> child while the child is a dependent child of the juvenile court.</div> <div> (b) At the hearing, which shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives, the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>56 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>57 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each and every</div> <div> hearing at which the court was required to consider reasonable efforts or</div> <div> services, the court has found that reasonable efforts were not made or that</div> <div> reasonable services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older, to identify any individuals, other than the child?s siblings,</div> <div> who are important to the child, in order to identify potential adoptive</div> <div> parents. The public agency may ask any other child to provide that</div> <div> information, as appropriate. During the 180-day period, the public agency</div> <div> shall, to the extent possible, contact other private and public adoption</div> <div> agencies regarding the availability of the child for adoption. During the</div> <div> 180-day period, the public agency shall conduct the search for adoptive</div> <div> parents in the same manner as prescribed for children in Sections 8708 and</div> <div> 8709 of the Family Code. At the expiration of this period, another hearing</div> <div> shall be held and the court shall proceed pursuant to paragraph (1) or (3) of</div> <div> subdivision (b). For purposes of this section, a child may only be found to</div> <div> be difficult to place for adoption if there is no identified or available</div> <div> prospective adoptive parent for the child because of the child?s</div> <div> membership in a sibling group, or the presence of a diagnosed medical,</div> <div> physical, or mental handicap, or the child is the age of seven years or</div> <div> more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interest of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older, shall be asked to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential guardians. The agency may ask any other child to</div> <div> provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>58 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>59 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, including, in the case of any child who is not a lawful</div> <div> permanent resident or citizen of the United States, counsel appointed</div> <div> pursuant to subdivision (i) of Section 317, the court shall proceed as</div> <div> follows:</div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for a period of time not to</div> <div> exceed 30 days as necessary to appoint counsel, and to enable counsel to</div> <div> become acquainted with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exist:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>60 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) Any order of the court permanently terminating parental rights under</div> <div> this section shall be conclusive and binding upon the child, upon the parent</div> <div> or parents and upon all other persons who have been served with a citation</div> <div> by publication or otherwise as provided in this chapter. After making the</div> <div> order, the court shall have no power to set aside, change, or modify it, but</div> <div> nothing in this section shall be construed to limit the right to appeal the</div> <div> order.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following applies:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>61 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>62 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>63 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> (o) The implementation and operation of the amendments to paragraph</div> <div> (3) of subdivision (c) and subparagraph (A) of paragraph (4) of</div> <div> subdivision (c) enacted at the 2005-06 Regular Session shall be subject to</div> <div> appropriation through the budget process and by phase, as provided in</div> <div> Section 366.35.</div> <div> SEC. 1.7 Section 366.26 of the Welfare and Institutions Code is</div> <div> amended to read:</div> <div> 366.26. (a) This section applies to children who are adjudged</div> <div> dependent children of the juvenile court pursuant to subdivision (c) of</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>64 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> Section 360. The procedures specified in this section are the exclusive</div> <div> procedures for conducting these hearings; Part 2 (commencing with</div> <div> Section 3020) of Division 8 of the Family Code is not applicable to these</div> <div> proceedings. Section 8714.7 of the Family Code is applicable and</div> <div> available to all dependent children meeting the requirements of that</div> <div> section, if the postadoption contact agreement has been entered into</div> <div> voluntarily. For children who are adjudged dependent children of the</div> <div> juvenile court pursuant to subdivision (c) of Section 360, this section and</div> <div> Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5</div> <div> (commencing with Section 7660) of Part 3 of Division 12 of the Family</div> <div> Code specify the exclusive procedures for permanently terminating</div> <div> parental rights with regard to, or establishing legal guardianship of, the</div> <div> child while the child is a dependent child of the juvenile court.</div> <div> (b) At the hearing, which shall be held in juvenile court for all children</div> <div> who are dependents of the juvenile court, the court, in order to provide</div> <div> stable, permanent homes for these children, shall review the report as</div> <div> specified in Section 361.5, 366.21, or 366.22, shall indicate that the court</div> <div> has read and considered it, shall receive other evidence that the parties</div> <div> may present, and then shall make findings and orders in the following</div> <div> order of preference:</div> <div> (1) Terminate the rights of the parent or parents and order that the child</div> <div> be placed for adoption and, upon the filing of a petition for adoption in the</div> <div> juvenile court, order that a hearing be set. The court shall proceed with the</div> <div> adoption after the appellate rights of the natural parents have been</div> <div> exhausted.</div> <div> (2) On making a finding under paragraph (3) of subdivision (c), identify</div> <div> adoption as the permanent placement goal and order that efforts be made</div> <div> to locate an appropriate adoptive family for the child within a period not to</div> <div> exceed 180 days.</div> <div> (3) Appoint a legal guardian for the child and order that letters of</div> <div> guardianship issue.</div> <div> (4) Order that the child be placed in long-term foster care, subject to the</div> <div> periodic review of the juvenile court under Section 366.3.</div> <div> In choosing among the above alternatives, the court shall proceed</div> <div> pursuant to subdivision (c).</div> <div> (c) (1) If the court determines, based on the assessment provided as</div> <div> ordered under subdivision (i) of Section 366.21 or subdivision (b) of</div> <div> Section 366.22, and any other relevant evidence, by a clear and convincing</div> <div> standard, that it is likely the child will be adopted, the court shall terminate</div> <div> parental rights and order the child placed for adoption. The fact that the</div> <div> child is not yet placed in a preadoptive home nor with a relative or foster</div> <div> family who is prepared to adopt the child, shall not constitute a basis for</div> <div> the court to conclude that it is not likely the child will be adopted. A</div> <div> finding under subdivision (b) or paragraph (1) of subdivision (e) of Section</div> <div> 361.5 that reunification services shall not be offered, under subdivision (e)</div> <div> of Section 366.21 that the whereabouts of a parent have been unknown for</div> <div> six months or that the parent has failed to visit or contact the child for six</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>65 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> months or that the parent has been convicted of a felony indicating</div> <div> parental unfitness, or, under Section 366.21 or 366.22, that the court has</div> <div> continued to remove the child from the custody of the parent or guardian</div> <div> and has terminated reunification services, shall constitute a sufficient basis</div> <div> for termination of parental rights unless the court finds a compelling</div> <div> reason for determining that termination would be detrimental to the child</div> <div> due to one or more of the following circumstances:</div> <div> (A) The parents or guardians have maintained regular visitation and</div> <div> contact with the child and the child would benefit from continuing the</div> <div> relationship.</div> <div> (B) A child 12 years of age or older objects to termination of parental</div> <div> rights.</div> <div> (C) The child is placed in a residential treatment facility, adoption is</div> <div> unlikely or undesirable, and continuation of parental rights will not prevent</div> <div> finding the child a permanent family placement if the parents cannot</div> <div> resume custody when residential care is no longer needed.</div> <div> (D) The child is living with a relative or foster parent who is unable or</div> <div> unwilling to adopt the child because of exceptional circumstances, that do</div> <div> not include an unwillingness to accept legal or financial responsibility for</div> <div> the child, but who is willing and capable of providing the child with a</div> <div> stable and permanent environment and the removal of the child from the</div> <div> physical custody of his or her relative or foster parent would be</div> <div> detrimental to the emotional well-being of the child. This subparagraph</div> <div> does not apply to any child who is living with a nonrelative and who is</div> <div> either (i) under six years of age or (ii) a member of a sibling group where</div> <div> at least one child is under six years of age and the siblings are, or should</div> <div> be, permanently placed together.</div> <div> (E) There would be substantial interference with a child?s sibling</div> <div> relationship, taking into consideration the nature and extent of the</div> <div> relationship, including, but not limited to, whether the child was raised</div> <div> with a sibling in the same home, whether the child shared significant</div> <div> common experiences or has existing close and strong bonds with a sibling,</div> <div> and whether ongoing contact is in the child?s best interest, including the</div> <div> child?s long-term emotional interest, as compared to the benefit of legal</div> <div> permanence through adoption.</div> <div> If the court finds that termination of parental rights would be</div> <div> detrimental to the child pursuant to subparagraph (A), (B), (C), (D), or (E),</div> <div> it shall state its reasons in writing or on the record.</div> <div> (2) The court shall not terminate parental rights if at each hearing at</div> <div> which the court was required to consider reasonable efforts or services, the</div> <div> court has found that reasonable efforts were not made or that reasonable</div> <div> services were not offered or provided.</div> <div> (3) If the court finds that termination of parental rights would not be</div> <div> detrimental to the child pursuant to paragraph (1) and that the child has a</div> <div> probability for adoption but is difficult to place for adoption and there is</div> <div> no identified or available prospective adoptive parent, the court may</div> <div> identify adoption as the permanent placement goal and without terminating</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>66 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> parental rights, order that efforts be made to locate an appropriate adoptive</div> <div> family for the child within a period not to exceed 180 days. During this</div> <div> 180-day period, the public agency responsible for seeking adoptive parents</div> <div> for each child shall, to the extent possible, ask each child who is 10 years</div> <div> of age or older, to identify any individuals, other than the child?s siblings,</div> <div> who are important to the child, in order to identify potential adoptive</div> <div> parents. The public agency may ask any other child to provide that</div> <div> information, as appropriate. During the 180-day period, the public agency</div> <div> shall, to the extent possible, contact other private and public adoption</div> <div> agencies regarding the availability of the child for adoption. During the</div> <div> 180-day period, the public agency shall conduct the search for adoptive</div> <div> parents in the same manner as prescribed for children in Sections 8708 and</div> <div> 8709 of the Family Code. At the expiration of this period, another hearing</div> <div> shall be held and the court shall proceed pursuant to paragraph (1) or (3) of</div> <div> subdivision (b). For purposes of this section, a child may only be found to</div> <div> be difficult to place for adoption if there is no identified or available</div> <div> prospective adoptive parent for the child because of the child?s</div> <div> membership in a sibling group, or the presence of a diagnosed medical,</div> <div> physical, or mental handicap, or the child is the age of seven years or</div> <div> more.</div> <div> (4) (A) If the court finds that adoption of the child or termination of</div> <div> parental rights is not in the best interest of the child, because one of the</div> <div> conditions in subparagraph (A), (B), (C), (D), or (E) of paragraph (1) or in</div> <div> paragraph (2) applies, the court shall either order that the present</div> <div> caretakers or other appropriate persons shall become legal guardians of the</div> <div> child or order that the child remain in long-term foster care. Legal</div> <div> guardianship shall be considered before long-term foster care, if it is in the</div> <div> best interest of the child and if a suitable guardian can be found. A child</div> <div> who is 10 years of age or older, shall be asked to identify any individuals,</div> <div> other than the child?s siblings, who are important to the child, in order to</div> <div> identify potential guardians. The agency may ask any other child to</div> <div> provide that information, as appropriate.</div> <div> (B) If the child is living with a relative or a foster parent who is willing</div> <div> and capable of providing a stable and permanent environment, but not</div> <div> willing to become a legal guardian, the child shall not be removed from</div> <div> the home if the court finds the removal would be seriously detrimental to</div> <div> the emotional well-being of the child because the child has substantial</div> <div> psychological ties to the relative caretaker or foster parents.</div> <div> (C) The court shall also make an order for visitation with the parents or</div> <div> guardians unless the court finds by a preponderance of the evidence that</div> <div> the visitation would be detrimental to the physical or emotional well-being</div> <div> of the child.</div> <div> (5) If the court finds that the child should not be placed for adoption,</div> <div> that legal guardianship shall not be established, and that there are no</div> <div> suitable foster parents except exclusive-use homes available to provide the</div> <div> child with a stable and permanent environment, the court may order the</div> <div> care, custody, and control of the child transferred from the county welfare</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>67 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> department to a licensed foster family agency. The court shall consider the</div> <div> written recommendation of the county welfare director regarding the</div> <div> suitability of the transfer. The transfer shall be subject to further court</div> <div> orders.</div> <div> The licensed foster family agency shall place the child in a suitable</div> <div> licensed or exclusive-use home that has been certified by the agency as</div> <div> meeting licensing standards. The licensed foster family agency shall be</div> <div> responsible for supporting the child and providing appropriate services to</div> <div> the child, including those services ordered by the court. Responsibility for</div> <div> the support of the child shall not, in and of itself, create liability on the part</div> <div> of the foster family agency to third persons injured by the child. Those</div> <div> children whose care, custody, and control are transferred to a foster family</div> <div> agency shall not be eligible for foster care maintenance payments or child</div> <div> welfare services, except for emergency response services pursuant to</div> <div> Section 16504.</div> <div> (d) The proceeding for the appointment of a guardian for a child who is</div> <div> a dependent of the juvenile court shall be in the juvenile court. If the court</div> <div> finds pursuant to this section that legal guardianship is the appropriate</div> <div> permanent plan, it shall appoint the legal guardian and issue letters of</div> <div> guardianship. The assessment prepared pursuant to subdivision (g) of</div> <div> Section 361.5, subdivision (i) of Section 366.21, and subdivision (b) of</div> <div> Section 366.22 shall be read and considered by the court prior to the</div> <div> appointment, and this shall be reflected in the minutes of the court. The</div> <div> person preparing the assessment may be called and examined by any party</div> <div> to the proceeding.</div> <div> (e) The proceeding for the adoption of a child who is a dependent of the</div> <div> juvenile court shall be in the juvenile court if the court finds pursuant to</div> <div> this section that adoption is the appropriate permanent plan and the</div> <div> petition for adoption is filed in the juvenile court. Upon the filing of a</div> <div> petition for adoption, the juvenile court shall order that an adoption</div> <div> hearing be set. The court shall proceed with the adoption after the</div> <div> appellate rights of the natural parents have been exhausted. The full report</div> <div> required by Section 8715 of the Family Code shall be read and considered</div> <div> by the court prior to the adoption and this shall be reflected in the minutes</div> <div> of the court. The person preparing the report may be called and examined</div> <div> by any party to the proceeding. It is the intent of the Legislature, pursuant</div> <div> to this subdivision, to give potential adoptive parents the option of filing in</div> <div> the juvenile court the petition for the adoption of a child who is a</div> <div> dependent of the juvenile court. Nothing in this section is intended to</div> <div> prevent the filing of a petition for adoption in any other court as permitted</div> <div> by law, instead of in the juvenile court.</div> <div> (f) At the beginning of any proceeding pursuant to this section, if the</div> <div> child or the parents are not being represented by previously retained or</div> <div> appointed counsel, including, in the case of any child who is not a lawful</div> <div> permanent resident or citizen of the United States, counsel appointed</div> <div> pursuant to subdivision (i) of Section 317, the court shall proceed as</div> <div> follows:</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>68 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (1) In accordance with subdivision (c) of Section 317, if a child before</div> <div> the court is without counsel, the court shall appoint counsel unless the</div> <div> court finds that the child would not benefit from the appointment of</div> <div> counsel. The court shall state on the record its reasons for that finding.</div> <div> (2) If a parent appears without counsel and is unable to afford counsel,</div> <div> the court shall appoint counsel for the parent, unless this representation is</div> <div> knowingly and intelligently waived. The same counsel shall not be</div> <div> appointed to represent both the child and his or her parent. The public</div> <div> defender or private counsel may be appointed as counsel for the parent.</div> <div> (3) Private counsel appointed under this section shall receive a</div> <div> reasonable sum for compensation and expenses, the amount of which shall</div> <div> be determined by the court. The amount shall be paid by the real parties in</div> <div> interest, other than the child, in any proportions the court deems just.</div> <div> However, if the court finds that any of the real parties in interest are unable</div> <div> to afford counsel, the amount shall be paid out of the general fund of the</div> <div> county.</div> <div> (g) The court may continue the proceeding for a period of time not to</div> <div> exceed 30 days as necessary to appoint counsel, and to enable counsel to</div> <div> become acquainted with the case.</div> <div> (h) (1) At all proceedings under this section, the court shall consider</div> <div> the wishes of the child and shall act in the best interests of the child.</div> <div> (2) In accordance with Section 349, the child shall be present in court if</div> <div> the child or the child?s counsel so requests or the court so orders. If the</div> <div> child is 10 years of age or older and is not present at a hearing held</div> <div> pursuant to this section, the court shall determine whether the minor was</div> <div> properly notified of his or her right to attend the hearing and inquire as to</div> <div> the reason why the child is not present.</div> <div> (3) (A) The testimony of the child may be taken in chambers and</div> <div> outside the presence of the child?s parent or parents, if the child?s parent or</div> <div> parents are represented by counsel, the counsel is present, and any of the</div> <div> following circumstances exists:</div> <div> (i) The court determines that testimony in chambers is necessary to</div> <div> ensure truthful testimony.</div> <div> (ii) The child is likely to be intimidated by a formal courtroom setting.</div> <div> (iii) The child is afraid to testify in front of his or her parent or parents.</div> <div> (B) After testimony in chambers, the parent or parents of the child may</div> <div> elect to have the court reporter read back the testimony or have the</div> <div> testimony summarized by counsel for the parent or parents.</div> <div> (C) The testimony of a child also may be taken in chambers and outside</div> <div> the presence of the guardian or guardians of a child under the</div> <div> circumstances specified in this subdivision.</div> <div> (i) (1) Any order of the court permanently terminating parental rights</div> <div> under this section shall be conclusive and binding upon the child, upon the</div> <div> parent or parents and upon all other persons who have been served with a</div> <div> citation by publication or otherwise as provided in this chapter. After</div> <div> making the order, the juvenile court shall have no power to set aside,</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>69 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> change, or modify it, except as provided in paragraph (2), but nothing in</div> <div> this section shall be construed to limit the right to appeal the order.</div> <div> (2) A child who has not been adopted after the passage of at least three</div> <div> years from the date the court terminated parental rights and for whom the</div> <div> court has determined that adoption is no longer the permanent plan may</div> <div> petition the juvenile court to reinstate parental rights pursuant to the</div> <div> procedure prescribed by Section 388. The child may file the petition prior</div> <div> to the expiration of this three-year period if the State Department of Social</div> <div> Services or licensed adoption agency that is responsible for custody and</div> <div> supervision of the child as described in subdivision (j) and the child</div> <div> stipulate that the child is no longer likely to be adopted. A child over 12</div> <div> years of age shall sign the petition in the absence of a showing of good</div> <div> cause as to why the child could not do so. If it appears that the best</div> <div> interests of the child may be promoted by reinstatement of parental rights,</div> <div> the court shall order that a hearing be held and shall give prior notice, or</div> <div> cause prior notice to be given, to the social worker or probation officer and</div> <div> to the child?s attorney of record, or, if there is no attorney of record for the</div> <div> child, to the child, and the child?s tribe, if applicable, by means prescribed</div> <div> by subdivision (c) of Section 297. The court shall order the child or the</div> <div> social worker or probation officer to give prior notice of the hearing to the</div> <div> child?s former parent or parents whose parental rights were terminated in</div> <div> the manner prescribed by subdivision (f) of Section 294 where the</div> <div> recommendation is adoption. The juvenile court shall grant the petition if</div> <div> it finds by clear and convincing evidence that the child is no longer likely</div> <div> to be adopted and that reinstatement of parental rights is in the child?s best</div> <div> interest. If the court reinstates parental rights over a child who is under 12</div> <div> years of age and for whom the new permanent plan will not be</div> <div> reunification with a parent or legal guardian, the court shall specify the</div> <div> factual basis for its findings that it is in the best interest of the child to</div> <div> reinstate parental rights. This subdivision is intended to be retroactive and</div> <div> applies to any child who is under the jurisdiction of the juvenile court at</div> <div> the time of the hearing regardless of the date parental rights were</div> <div> terminated.</div> <div> (j) If the court, by order or judgment, declares the child free from the</div> <div> custody and control of both parents, or one parent if the other does not</div> <div> have custody and control, the court shall at the same time order the child</div> <div> referred to the State Department of Social Services or a licensed adoption</div> <div> agency for adoptive placement by the agency. However, a petition for</div> <div> adoption may not be granted until the appellate rights of the natural</div> <div> parents have been exhausted. The State Department of Social Services or</div> <div> licensed adoption agency shall be responsible for the custody and</div> <div> supervision of the child and shall be entitled to the exclusive care and</div> <div> control of the child at all times until a petition for adoption is granted,</div> <div> except as specified in subdivision (n). With the consent of the agency, the</div> <div> court may appoint a guardian of the child, who shall serve until the child is</div> <div> adopted.</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>70 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> (k) Notwithstanding any other provision of law, the application of any</div> <div> person who, as a relative caretaker or foster parent, has cared for a</div> <div> dependent child for whom the court has approved a permanent plan for</div> <div> adoption, or who has been freed for adoption, shall be given preference</div> <div> with respect to that child over all other applications for adoptive placement</div> <div> if the agency making the placement determines that the child has</div> <div> substantial emotional ties to the relative caretaker or foster parent and</div> <div> removal from the relative caretaker or foster parent would be seriously</div> <div> detrimental to the child?s emotional well-being.</div> <div> As used in this subdivision, ?preference? means that the application</div> <div> shall be processed and, if satisfactory, the family study shall be completed</div> <div> before the processing of the application of any other person for the</div> <div> adoptive placement of the child.</div> <div> (<FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Italic" ><I>l</I></FONT>) (1) An order by the court that a hearing pursuant to this section be</div> <div> held is not appealable at any time unless all of the following apply:</div> <div> (A) A petition for extraordinary writ review was filed in a timely</div> <div> manner.</div> <div> (B) The petition substantively addressed the specific issues to be</div> <div> challenged and supported that challenge by an adequate record.</div> <div> (C) The petition for extraordinary writ review was summarily denied or</div> <div> otherwise not decided on the merits.</div> <div> (2) Failure to file a petition for extraordinary writ review within the</div> <div> period specified by rule, to substantively address the specific issues</div> <div> challenged, or to support that challenge by an adequate record shall</div> <div> preclude subsequent review by appeal of the findings and orders made</div> <div> pursuant to this section.</div> <div> (3) The Judicial Council shall adopt rules of court, effective January 1,</div> <div> 1995, to ensure all of the following:</div> <div> (A) A trial court, after issuance of an order directing a hearing pursuant</div> <div> to this section be held, shall advise all parties of the requirement of filing a</div> <div> petition for extraordinary writ review as set forth in this subdivision in</div> <div> order to preserve any right to appeal in these issues. This notice shall be</div> <div> made orally to a party if the party is present at the time of the making of</div> <div> the order or by first-class mail by the clerk of the court to the last known</div> <div> address of a party not present at the time of the making of the order.</div> <div> (B) The prompt transmittal of the records from the trial court to the</div> <div> appellate court.</div> <div> (C) That adequate time requirements for counsel and court personnel</div> <div> exist to implement the objective of this subdivision.</div> <div> (D) That the parent or guardian, or their trial counsel or other counsel,</div> <div> is charged with the responsibility of filing a petition for extraordinary writ</div> <div> relief pursuant to this subdivision.</div> <div> (4) The intent of this subdivision is to do both of the following:</div> <div> (A) Make every reasonable attempt to achieve a substantive and</div> <div> meritorious review by the appellate court within the time specified in</div> <div> Sections 366.21 and 366.22 for holding a hearing pursuant to this section.</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>71 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> (B) Encourage the appellate court to determine all writ petitions filed</div> <div> pursuant to this subdivision on their merits.</div> <div> (5) This subdivision shall only apply to cases in which an order to set a</div> <div> hearing pursuant to this section is issued on or after January 1, 1995.</div> <div> (m) Except for subdivision (j), this section shall also apply to minors</div> <div> adjudged wards pursuant to Section 727.31.</div> <div> (n) (1) Notwithstanding Section 8704 of the Family Code or any other</div> <div> provision of law, the court, at a hearing held pursuant to this section or</div> <div> anytime thereafter, may designate a current caretaker as a prospective</div> <div> adoptive parent if the child has lived with the caretaker for at least six</div> <div> months, the caretaker currently expresses a commitment to adopt the child,</div> <div> and the caretaker has taken at least one step to facilitate the adoption</div> <div> process. In determining whether to make that designation, the court may</div> <div> take into consideration whether the caretaker is listed in the preliminary</div> <div> assessment prepared by the county department in accordance with</div> <div> subdivision (i) of Section 366.21 as an appropriate person to be considered</div> <div> as an adoptive parent for the child and the recommendation of the State</div> <div> Department of Social Services or licensed adoption agency.</div> <div> (2) For purposes of this subdivision, steps to facilitate the adoption</div> <div> process include, but are not limited to, the following:</div> <div> (A) Applying for an adoption homestudy.</div> <div> (B) Cooperating with an adoption homestudy.</div> <div> (C) Being designated by the court or the licensed adoption agency as</div> <div> the adoptive family.</div> <div> (D) Requesting de facto parent status.</div> <div> (E) Signing an adoptive placement agreement.</div> <div> (F) Engaging in discussions regarding a postadoption contact</div> <div> agreement.</div> <div> (G) Working to overcome any impediments that have been identified</div> <div> by the State Department of Social Services and the licensed adoption</div> <div> agency.</div> <div> (H) Attending classes required of prospective adoptive parents.</div> <div> (3) Prior to a change in placement and as soon as possible after a</div> <div> decision is made to remove a child from the home of a designated</div> <div> prospective adoptive parent, the agency shall notify the court, the</div> <div> designated prospective adoptive parent or the current caretaker, if that</div> <div> caretaker would have met the threshold criteria to be designated as a</div> <div> prospective adoptive parent pursuant to paragraph (1) on the date of</div> <div> service of this notice, the child?s attorney, and the child, if the child is 10</div> <div> years of age or older, of the proposal in the manner described in Section</div> <div> 16010.6.</div> <div> (A) Within five court days or seven calendar days, whichever is longer,</div> <div> of the date of notification, the child, the child?s attorney, or the designated</div> <div> prospective adoptive parent may file a petition with the court objecting to</div> <div> the proposal to remove the child, or the court, upon its own motion, may</div> <div> set a hearing regarding the proposal. The court may, for good cause,</div> <div> extend the filing period. A caretaker who would have met the threshold</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>72 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> criteria to be designated as a prospective adoptive parent pursuant to</div> <div> paragraph (1) on the date of service of the notice of proposed removal of</div> <div> the child may file, together with the petition under this subparagraph, a</div> <div> petition for an order designating the caretaker as a prospective adoptive</div> <div> parent for purposes of this subdivision.</div> <div> (B) A hearing ordered pursuant to this paragraph shall be held as soon</div> <div> as possible and not later than five court days after the petition is filed with</div> <div> the court or the court sets a hearing upon its own motion, unless the court</div> <div> for good cause is unable to set the matter for hearing five court days after</div> <div> the petition is filed, in which case the court shall set the matter for hearing</div> <div> as soon as possible. At the hearing, the court shall determine whether the</div> <div> caretaker has met the threshold criteria to be designated as a prospective</div> <div> adoptive parent pursuant to paragraph (1), and whether the proposed</div> <div> removal of the child from the home of the designated prospective adoptive</div> <div> parent is in the child?s best interest, and the child may not be removed</div> <div> from the home of the designated prospective adoptive parent unless the</div> <div> court finds that removal is in the child?s best interest. If the court</div> <div> determines that the caretaker did not meet the threshold criteria to be</div> <div> designated as a prospective adoptive parent on the date of service of the</div> <div> notice of proposed removal of the child, the petition objecting to the</div> <div> proposed removal filed by the caretaker shall be dismissed. If the caretaker</div> <div> was designated as a prospective adoptive parent prior to this hearing, the</div> <div> court shall inquire into any progress made by the caretaker towards the</div> <div> adoption of the child since the caretaker was designated as a prospective</div> <div> adoptive parent.</div> <div> (C) A determination by the court that the caretaker is a designated</div> <div> prospective adoptive parent pursuant to paragraph (1) or subparagraph (B)</div> <div> does not make the caretaker a party to the dependency proceeding nor does</div> <div> it confer on the caretaker any standing to object to any other action of the</div> <div> department or licensed adoption agency, unless the caretaker has been</div> <div> declared a de facto parent by the court prior to the notice of removal</div> <div> served pursuant to paragraph (3).</div> <div> (D) If a petition objecting to the proposal to remove the child is not</div> <div> filed, and the court, upon its own motion, does not set a hearing, the child</div> <div> may be removed from the home of the designated prospective adoptive</div> <div> parent without a hearing.</div> <div> (4) Notwithstanding paragraph (3), if the State Department of Social</div> <div> Services or a licensed adoption agency determines that the child must be</div> <div> removed from the home of the caretaker who is or may be a designated</div> <div> prospective adoptive parent immediately, due to a risk of physical or</div> <div> emotional harm, the agency may remove the child from that home and is</div> <div> not required to provide notice prior to the removal. However, as soon as</div> <div> possible and not longer than two court days after the removal, the agency</div> <div> shall notify the court, the caretaker who is or may be a designated</div> <div> prospective adoptive parent, the child?s attorney, and the child, if the child</div> <div> is 10 years of age or older, of the removal. Within five court days or seven</div> <div> calendar days, whichever is longer, of the date of notification of the</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>73 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <div> removal, the child, the child?s attorney, or the caretaker who is or may be</div> <div> a designated prospective adoptive parent may petition for, or the court on</div> <div> its own motion may set, a noticed hearing pursuant to paragraph (3). The</div> <div> court may, for good cause, extend the filing period.</div> <div> (5) Except as provided in subdivision (b) of Section 366.28, an order by</div> <div> the court issued after a hearing pursuant to this subdivision shall not be</div> <div> appealable.</div> <div> (6) Nothing in this section shall preclude a county child protective</div> <div> services agency from fully investigating and responding to alleged abuse</div> <div> or neglect of a child pursuant to Section 11165.5 of the Penal Code.</div> <div> (7) The Judicial Council shall prepare forms to facilitate the filing of</div> <div> the petitions described in this subdivision, which shall become effective on</div> <div> January 1, 2006.</div> <div> (o) The implementation and operation of the amendments to paragraph</div> <div> (3) of subdivision (c) and subparagraph (A) of paragraph (4) of</div> <div> subdivision (c) enacted at the 2005-06 Regular Session shall be subject to</div> <div> appropriation through the budget process and by phase, as provided in</div> <div> Section 366.35.</div> <div> SEC. 2. (a) Section 1.1 of this bill incorporates amendments to Section</div> <div> 366.26 of the Welfare and Institutions Code proposed by both this bill and</div> <div> AB 519. It shall only become operative if (1) both bills are enacted and</div> <div> become effective on or before January 1, 2006, (2) each bill amends</div> <div> Section 366.26 of the Welfare and Institutions Code, (3) AB 1338 and AB</div> <div> 1412 are not enacted or as enacted do not amend that section, and (4) this</div> <div> bill is enacted after AB 519, in which case Sections 1, 1.2, 1.3, 1.4, 1.5,</div> <div> 1.6, and 1.7 of this bill shall not become operative.</div> <div> (b) Section 1.2 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by both this bill and AB</div> <div> 1338. It shall only become operative if (1) both bills are enacted and</div> <div> become effective on or before January 1, 2006, (2) each bill amends</div> <div> Section 366.26 of the Welfare and Institutions Code, (3) AB 519 and AB</div> <div> 1412 are not enacted or as enacted do not amend that section, and (4) this</div> <div> bill is enacted after AB 1338 in which case Sections 1, 1.1, 1.3, 1.4, 1.5,</div> <div> 1.6, and 1.7 of this bill shall not become operative.</div> <div> (c) Section 1.3 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by both this bill and AB</div> <div> 1412. It shall only become operative if (1) both bills are enacted and</div> <div> become effective on or before January 1, 2006, (2) each bill amends</div> <div> Section 366.26 of the Welfare and Institutions Code, (3) AB 519 and AB</div> <div> 1338 are not enacted or as enacted do not amend that section, and (4) this</div> <div> bill is enacted after AB 1412, in which case Sections 1, 1.1, 1.2, 1.4, 1.5,</div> <div> 1.6, and 1.7 of this bill shall not become operative.</div> <div> (d) Section 1.4 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by this bill, AB 519, and</div> <div> AB 1338. It shall only become operative if (1) all three bills are enacted</div> <div> and become effective on or before January 1, 2006, (2) all three bills</div> <div> amend Section 366.26 of the Welfare and Institutions Code, (3) AB 1412</div> <div> 93</div> <div> <B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>74 </B></FONT><B>? </B><FONT SIZE="2" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>Ch. 626</B></FONT></div> <div> is not enacted or as enacted does not amend that section and (4) this bill is</div> <div> enacted after AB 519 and AB 1338, in which case Sections 1, 1.1, 1.2, 1.3,</div> <div> 1.5, 1.6, and 1.7 of this bill shall not become operative.</div> <div> (e) Section 1.5 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by this bill, AB 519, and</div> <div> AB 1412. It shall only become operative if (1) all three bills are enacted</div> <div> and become effective on or before January 1, 2006, (2) all three bills</div> <div> amend Section 366.26 of the Welfare and Institutions Code, (3) AB 1338</div> <div> is not enacted or as enacted does not amend that section and (4) this bill is</div> <div> enacted after AB 519 and AB 1412, in which case Sections 1, 1.1, 1.2, 1.3,</div> <div> 1.4, 1.6, and 1.7 of this bill shall not become operative.</div> <div> (f) Section 1.6 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by this bill, AB 1338, and</div> <div> AB 1412. It shall only become operative if (1) all three bills are enacted</div> <div> and become effective on or before January 1, 2006, (2) all three bills</div> <div> amend Section 366.26 of the Welfare and Institutions Code, (3) AB 519 is</div> <div> not enacted or as enacted does not amend that section and (4) this bill is</div> <div> enacted after AB 1338 and AB 1412, in which case Sections 1, 1.1, 1.2,</div> <div> 1.3, 1.4, 1.5, and 1.7 of this bill shall not become operative.</div> <div> (g) Section 1.7 of this bill incorporates amendments to Section 366.26</div> <div> of the Welfare and Institutions Code proposed by this bill, AB 519, AB</div> <div> 1338, and AB 1412. It shall only become operative if (1) all four bills are</div> <div> enacted and become effective on or before January 1, 2006, (2) all four</div> <div> bills amend Section 366.26 of the Welfare and Institutions Code, and (3)</div> <div> this bill is enacted after AB 519, AB 1338, and AB 1412 in which case</div> <div> Sections 1, 1.1, 1.2, 1.3, 1.4, 1.5, and 1.6 of this bill shall not become</div> <div> operative.</div> <div> O</div> <div> 93</div> <div> <B>Ch. 626 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>? </B></FONT><B>75 </B><FONT SIZE="1" COLOR="#FFFFCC" FACE="TimesLDC-Bold" ><B>?</B></FONT></div> <bR> </td> </tr></table></body>