If your child has been removed from your care by California's child welfare system, you are likely navigating a confusing and emotional process.
Suppose the courts determine that attempts at family reunification have failed or don't meet the standards of safety for the child. In that case, the next and final step is to terminate your parental rights and make a determination for permanent placement of the child.
The .26 hearing, a crucial step in this process, is a significant event that will determine your child's future.
California Welfare and Institutions Code 366.26 WIC says, "(a) This section applies to children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360. The procedures specified in this section are the exclusive procedures for conducting these hearings.
The procedures in Part 2 of Division 8 of the Family Code are not applicable to these proceedings. Section 8616.5 of the Family Code is applicable and available to all dependent children, meeting the requirements of that section if the postadoption contact agreement has been entered into voluntarily.
For children who are adjudged dependent children of the juvenile court pursuant to subdivision (d) of Section 360, this section, and Sections 8604, 8605, 8606, and 8700 of the Family Code and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12 of the Family Code specify the exclusive procedures for permanently terminating parental rights with regard to or establishing legal guardianship of, the child while the child is a dependent child of the juvenile court."
What Happens at a .26 Hearing?
The .26 hearing typically involves a detailed review of the child's circumstances, including their relationship with the parent, any relatives, and their current living situation. At the hearing, the judge, who is responsible for making decisions in the best interest of the child, will make one of the following permanent placement decisions in order of priority:
- Adoption: If the court finds that reunification isn't possible and adoption serves the child's best interests, parental rights will be terminated. This means the parent will lose all legal rights and responsibilities toward the child. Adoption is seen as the most permanent solution and is typically the court's first choice when a suitable adoptive family is available.
- Legal Guardianship: When adoption isn't feasible, the court may grant legal guardianship. This allows a relative or responsible adult to care for the child while maintaining the parent-child relationship. Parents may keep some rights, like visitation, but the guardian will have primary responsibility for the child's welfare.
- Long-Term Foster Care: This option is typically reserved for older children or situations where neither adoption nor guardianship is possible. While foster care provides a more temporary solution, it may be ordered if it is the most stable option for the child.
What is WIC 366.26?
Under California law, a child can be removed from a parent's custody and deemed dependent on the court if there is a risk of abuse or neglect.
When reunification efforts fail, the court decides the child's permanent placement according to section 366.26 of the Welfare and Institutions Code (WIC) during the .26 hearing.
The main goal of the .26 hearing is to establish a long-term plan for a child already dependent on the court. In simpler terms, this is when the court determines the child's permanent living situation after unsuccessful reunification efforts within 6-12 months of declaring the child a ward of the court.
WIC 366.26(b) says, "(b) At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court, in order to provide stable, permanent homes for these children, shall review the report as specified in Section 361.5, 366.21, 366.22, or 366.25, shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that the child be placed for adoption and, upon the filing of a petition for adoption in the juvenile court, order that a hearing be set. The court shall proceed with the adoption after the appellate rights of the natural parents have been exhausted.
(2) Order, without termination of parental rights, the plan of tribal customary adoption, as described in Section 366.24, through tribal custom, traditions, or law of the Indian child's tribe and, upon the court affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).
(3) Appoint a relative or relatives with whom the child is currently residing as legal guardians or guardians for the child and order that letters of guardianship be issued.
(4) On making a finding under paragraph (3) of subdivision (c), identify adoption or tribal customary adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days.
(5) Appoint a nonrelative legal guardian for the child and order that letters of guardianship be issued.
(6) Order that the child be permanently placed with a fit and willing relative, subject to the periodic review of the juvenile court under Section 366.3.
(7) Order that the child remain in foster care, subject to the conditions described in paragraph (4) of subdivision (c) and the periodic review of the juvenile court under Section 366.3."
What are the Court's Priorities for Permanent Placement?
When determining the child's permanent placement, the court must follow the order of preference outlined in section 366.26 WIC. These priorities include:
- Adoption by a Relative: If a relative is available and willing to adopt the child, the court will prioritize this option because it maintains the child's connection to their biological family.
- Adoption by a Non-Relative: If no suitable relatives are available, the court will look for an adoptive family that is not related to the child. Adoption is favored because it provides a stable, permanent family environment.
- Legal Guardianship with a Relative: If adoption is not appropriate, the court will consider placing the child in legal guardianship with a relative. This allows the child to remain within the family but without the permanency of adoption.
- Legal Guardianship with a Non-Relative: If no relatives are suitable, the court may grant guardianship to a non-relative who has been caring for the child, such as a foster parent.
- Long-Term Foster Care: As a last resort, the court may place the child in long-term foster care, but this is only considered if adoption and guardianship are not viable options.
What Are a Parent's Options at a .26 Hearing?
A .26 hearing typically means the state no longer trusts your ability to parent and plans to revoke your parental rights. If you disagree with this decision and can provide evidence to challenge it, you can object by requesting a separate "contested hearing."
This delays the final placement decision, giving you time to gather evidence and witnesses to support your case. Common arguments parents can make at a contested hearing include:
- Bonding Evidence: Demonstrating that a strong bond exists between the parent and child, and that severing this bond would be detrimental to the child's emotional well-being.
- Change of Circumstances: This shows that the parents' situation has improved significantly since the last court review and that reunification is now a viable option.
- Relative Care: Suggesting a relative as a permanent placement option instead of adoption or foster care.
Given the complexities of the law and the fact that you may have an uphill battle convincing the courts to reconsider terminating your rights as a parent, it's highly recommended to hire an attorney to represent your interests at a .26 hearing.
Your attorney can help you petition for the contested hearing, help you prepare your defense, and even file an appeal if the contested hearing doesn't end in your favor.
Our certified specialists are available 24/7 to take your call and offer an immediate response. To fairly compensate for time spent on strategy, the Eisner Gorin law firm offers paid office consultations. The office consultation retainer will depend on the time spent and the seriousness of the allegations.
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