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§7.10 Adoption

[1] Termination of Parental Rights or Eligible for Tribal Adoption
[2] Placement Preferences
[3] Identify Adoption Without Terminating Parental Rights
[4] Caretaker as Prospective Adoptive Parent
        [a] Designate Current Caretaker
        [b] Hearing on Proposed Removal
        [c] Hearing After Emergency Removal

[1] Termination of Parental Rights or Eligible for Tribal Adoption

If parental rights are terminated or the child is declared eligible for tribal customary adoption, you must order the child referred to DSS or a licensed adoption agency for adoptive placement. [WIC §§366.24, 366.26(b)(1), (j); CRC 5.725(e).]

Except as discussed below [see [4]], DSS or the adoption agency is responsible for custody and supervision of the child until the adoption is granted. With the agency’s consent, you may appoint a guardian to serve temporarily until the child is adopted. [WIC §366.26(j).]

Adoptions are sometimes separate proceedings distinct from juvenile court. In dependency cases, however, the petition for adoption may be filed in juvenile court. You proceed with the adoption after the natural parents’ appellate rights are exhausted. [WIC §366.26(e)(1); see CRC 5.730.] In the case of an Indian child when the tribe has elected a permanent plan of tribal customary adoption, you must give the tribal order full faith and credit and order a hearing after an adoption petition if filed. [WIC §366.26(e)(2); see §7.11.]

[2] Placement Preferences

If the child has substantial ties to the foster parent or relative caretaker and that person wishes to adopt the child, preference must be given to that person over other prospective adoptive parents if the placing agency determines that [WIC §366.26(k)]:

  • The child has such substantial emotional ties to that person; and
  • Removal would be seriously detrimental to the child’s well-being.

The preference for relative placement [see WIC §361.3] may be outweighed by the child’s best interests. [See In re Lauren R. (2007) 148 CA4th 841, 855 (the child's bond with a foster parent may require that placement with a relative be rejected); In re Stephanie M. (1994) 7 C4th 295, 321.] An ongoing caretaker may receive preferential consideration in the later stages of the proceedings. [In re Daniel D. (1994) 24 CA4th 1823, 1834.]

Even though a child’s parent files a relinquishment of her parental rights, designating a relative as the person with whom she intended the child to be placed for adoption, it is error to lift a “do not remove” order without conducting a hearing to determine whether placement with the relative is patently absurd or unquestionably not in the minor’s best interests. [In re B.C. (2011) 192 CA4th 129, 146, 150.]

In the event, however, that a child is freed for adoption and the adoption is disrupted for any reason, the agency and any licensed adoption agency are authorized to search for a relative and furnish identifying information relating to the child to that relative if it is believed the child’s welfare will be promoted thereby, where the relative includes a member of the child’s birth family and nonrelated extended family members, regardless of whether the parental rights were terminated, provided that specified circumstances exist. [WIC §361.3(f).]

ICWA Caution ICWA

[3] Identify Adoption Without Terminating Parental Rights

Even if terminating parental rights is desirable and will not be detrimental and there is a probability that the child is likely to be adopted, you may find that the child is difficult to place and there is no identified or available prospective adoptive parent because [WIC §366.26(c)(3); CRC 5.725(d)(5)]:

  • The child is a member of a sibling group that should stay together;
  • The child has a diagnosed medical, mental, or physical handicap; or
  • The child is age seven or older.

In this case, you may, without terminating parental rights, identify adoption as the permanent placement goal and order the adoptive agency to make efforts to locate an appropriate adoptive family within 180 days. During the 180-day period, the agency must, to the extent possible, ask each child who is 10 or older and who is placed in an out-of-home placement for at least six months to identify individuals who are important to the child. The agency may also ask any other child for this information. At the end of this period, you must hold another hearing and either terminate parental rights and proceed with adoption, or proceed with guardianship. [WIC §366.26(b)(3), (c)(3); CRC 5.725(d)(5).]

You must find the probability of adoption, however, by clear and convincing evidence. It’s an abuse of discretion to proceed under WIC §366.26(b)(3) and (c)(3) without some evidence that care appropriate for a special needs child will be available in an adoptive home or the home of a legal guardian. [In re Ramone R. (2005) 132 CA4th 1339, 1349, 1351–1352.]

[4] Caretaker as Prospective Adoptive Parent

[a] Designate Current Caretaker

DSS or an adoption agency usually has exclusive care and control of the child until a petition for adoption is granted. At the .26 hearing or anytime thereafter, however, you may designate a current caretaker as a prospective adoptive parent if [WIC §366.26(n)(1)–(2); CRC 5.726(b)]:

  • The child has lived with the caretaker for at least six months,
  • The caretaker currently expresses a commitment to adopt the child, and
  • The caretaker has taken at least one of the steps to facilitate the adoption process.

For the procedure and forms governing a request to be designated a prospective adoptive parent, see CRC 5.726 and form JV-321.

[b] Hearing on Proposed Removal

The agency must notify a designated prospective adoptive parent (or a current caretaker who would have qualified as such), along with the child’s attorney and the child if 10 or older, before any change in placement and as soon as possible after a decision is made to remove the child from the home of the designated prospective adoptive parent. [WIC §366.26(n)(3); CRC 5.727(b)–(d); see form JV-323.]

Within five court days or seven calendar days of this notification (whichever is longer), the designated prospective adoptive parent, or the child or the child’s attorney, may petition to object to the proposed removal. You may also set a hearing on your own motion. [WIC §366.26(n)(3)(A); CRC 5.727(e).]

You must hold a hearing as soon as possible, usually not more than five court days after the petition is filed, or you must set a hearing on your own motion. At the hearing, you determine [WIC §366.26(n)(3)(B); see CRC 5.726(c), 5.727(e)]:

  • Whether the caretaker has met the threshold criteria to be designated a prospective adoptive parent, and
  • Whether the proposed removal is in the child’s best interests.

If the caretaker was designated before the hearing, you must inquire if any progress has been made by the caretaker towards adoption. If the caretaker does not meet the threshold criteria, you must dismiss the petition. [WIC §366.26(n)(3)(B).]

[c] Hearing After Emergency Removal

DSS or the adoption agency may immediately remove the child, without notice, from the home of a caretaker who is or may be a designated prospective adoptive parent because of a risk of physical or emotional harm. As soon as possible and no more than two court days after the removal, the agency must notify the court, the caretaker, the child’s attorney, and the child, if 10 or older, of the removal.

Each participant who receives notice may object to the removal of the child and may request a hearing. An objection must be made on form JV-325. You must schedule the hearing as soon as possible and not later than five court days after the objection is filed with the court. [WIC §366.26(n)(4); CRC 5.728(d).]

Under WIC §366.26(n), you must decide whether to remove the child from the home of a prospective adoptive parent regardless of whether the agency has detained the child on an emergency basis or seeks to remove the child under WIC §16514(c) who remains in the home pending the outcome of the hearing after the agency determined the placement was made in error. [T.W. v Superior Court (2012) 203 CA4th 30, 45–46.]


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