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§7.05 Evidence

[1] In General
[2] Information Not Relevant
[3] Child’s Wishes

[1] In General

You must state on the record that you have read and considered the case plan; any reports from the social worker, CASA volunteer, and the child’s caregiver; and any other evidence presented. [CRC 5.725(d).]

You must determine that the social worker solicited and integrated input from the child, the child’s family, the child’s identified Indian tribe, and other interested parties into the case plan, or you must order the social worker to do so unless each of these participants was unavailable, unwilling, or unable.  [CRC 5.708.]

You must find that a child age 12 or older and in permanent placement was given an opportunity to review, sign, and receive a copy of the case plan, or you must order the agency to do so.  [CRC 5.708.]

A social worker’s report containing hearsay is admissible at a .26 hearing. [In re Keyonie R. (1996) 42 CA4th 1569, 1572–1573.] The admissibility of the report is not expressly conditioned on the social worker’s presence for cross-examination. [In re Jeanette V. (1998) 68 CA4th 811, 816.]

If you determine that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental under one of the exceptions listed in WIC §366.26(c)(1). [In re Zachary G. (1999) 77 CA4th 799, 809; see §7.09[2][b].]


[2] Information Not Relevant

The following items are not relevant at a .26 hearing:

  • The suitability of prospective adoptive parents [In re Scott M. (1993) 13 CA4th 839, 844];
  • Whether DSS’s decision on adoptive placement is appropriate (your review is limited to whether DSS abused its discretion or acted arbitrarily) [Department of Social Servs. v Superior Court (1997) 58 CA4th 721, 734; Los Angeles Dep’t of Children & Family Servs. v Superior Court (1998) 62 CA4th 1, 10];
  • Evidence of the racial or ethnic match between the child and prospective adoptive parents [see In re Tracy X. (1993) 18 CA4th 1460, 1464–1465];
  • The parents' efforts to overcome the problems that led to the dependency [In re Edward R. (1993) 12 CA4th 116, 126-127]; or
  • Whether the child can be returned to the parent’s custody [In re Marilyn H. (1993) 5 C4th 295, 304].

[3] Child’s Wishes

You must consider the child’s wishes to the extent that they are ascertainable. [WIC §366.26(h)(1).] The child must be present in court if the child or his or her attorney so requests or you so order. If a child age 10 or older does not appear, you must verify that the child was properly notified and ask why the child is absent. [See WIC §366.26(f)(1), (h)(2).]

The social worker’s report should address the child’s wishes and should note how and what questions were asked of the child. You may augment the report by questioning the child’s counsel and the CASA volunteer, if any. You may also take the child’s testimony in your chambers or make other arrangements to accommodate the child witness. [See WIC §366.26(h)(3) and Part 2, §4.08[3].]

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© 2006 by Judicial Council of California
updated as of January 1, 2012