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§7.08 Findings and Orders in General

At a .26 hearing, you must make one of the following findings and orders in the order of preference shown:

  • Permanently terminate parental rights, and order the child to be placed for adoption after finding by clear and convincing evidence that the child is likely to be adopted [WIC §366.26(b)(1), (c)(1)];
  • Order, without terminating parental rights, the plan of tribal customary adoption, and afford the order full faith and credit [WIC §§366.24, 366.26(b)(2), (e)(2)];
  • Appoint a relative with whom the child is residing as guardian for the child and issue letters of guardianship [WIC §366.26(b)(3)];
  • Identify adoption or tribal customary adoption as the permanent placement goal without terminating parental rights, and order that efforts be made to locate an appropriate adoptive family within 180 days [WIC §366.26(b)(4), (c)(1), (3)];
  • Appoint a nonrelative legal guardian for the child, and issue letters of guardianship [WIC §366.26(b)(5)]; or
  • Place the child in foster care [WIC §366.26(b)(6)].

Before terminating parental rights, you must find either that services would have been futile or detrimental to the child under any of the relevant statutory subdivisions, or that the agency at least tried to reunite the family by making reasonable efforts or offering services to the parents. [In re T.M. (2009) 175 CA4th 1166, 1173.] You cannot terminate parental rights if [WIC §366.26(c)(2)]:

  • At each hearing at which you were required to consider reasonable efforts or services, you found that reasonable efforts were not made or that reasonable services were not offered or provided.
  • In the case of an Indian child:
    • At the hearing terminating parental rights, you found that active efforts were not made as required in WIC §361.7.
    • You do not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more “qualified expert witnesses,” that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.
    • You ordered tribal customary adoption.

Education

As done at previous hearings, at the .26 hearing you should also inquire about the child’s educational needs, determine who holds the educational rights for the child,  and determine the child’s general and specific educational needs and identify a plan to meet those needs. [CRC 5.651.] You may limit a parent’s or current caretaker’s right to make educational decisions for the child, and if you do, you must immediately proceed to appoint an educational representative for the child. [WIC §361; CRC 5.650(a)–(b).] If you appoint a guardian for the child, all educational rights and responsibilities transfer to the newly appointed guardian unless you determine that the guardian is not able to act in the child’s best interests regarding education. [CRC 5.650(e).] For further discussion, see Part 1, §3.11.

You should also inquire about the child’s developmental services needs and who is the decision maker for such services. [See WIC §361(a).] See discussion in §5.13[3].

Title IV-E Caution Title IV-E Activity

REFERENCE >> For a general form of findings and orders under WIC §366.26, see form JV-320.


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