Until the time a selection and implementation hearing under Welf & I C §366.26 is set (commonly referred to as a §366.26 hearing), the parents' interest in reunification is given precedence over a dependent child's need for stability and permanency.
Parents who want to appeal issues subsumed in the setting of the §366.26 hearing must first petition for an extraordinary writ; waiting until after the hearing will be too late. See Welf & I C §366.26(l). On writ procedures, see §§10.84–10.111.
In a nutshell, permanent placement options at the Welf & I C §366.26 hearing are (Welf & I C §366.26(b))
Adoption by a relative or nonrelative;
For Indian children, tribal customary adoption (see chap 9);
Guardianship with a relative or nonrelative guardian;
Placement with a fit or willing relative;
Child to remain in foster care (nonrelative) and the court has to consider guardianship first and any other permanent plan before the child remains in foster care;
For a child 16 years or older, another planned permanent living arrangement (APPLA) (previously known as long-term or continued foster care; see §§1.6A–1.6B), subject to periodic review.
The court must terminate parental rights unless
Termination of parental rights causes detriment to child. If the court finds, by clear and convincing evidence, that the child is adoptable, the court must terminate parental rights unless it finds that termination would be detrimental to the child. Detriment is determined by reference to two principles (Welf & I C §366.26(c)(1)(A)–(B)):
The child is living with a relative who is unwilling or unable to adopt the child but who is willing and capable of caring for the child on a permanent basis and removal of the child would be detrimental to the child; or
The court finds a compelling reason that termination of parental rights would be detrimental to the child based on six circumstances (otherwise referred to as exceptions to termination of parental rights), described in §§8.30–8.37.
No reasonable reunification services provided. A court may also not terminate parental rights if the court in prior proceedings in which it was required to make a finding regarding reasonable reunification services made a finding of no reasonable services at each and every review hearing before the setting of the §366.26 hearing (Welf & I C §366.26(c)(2)) (and in the case of an Indian child, the court finds that "active efforts" were not made as required in Welf & I C §361.7; see chap 9).
Parents who want to appeal issues subsumed in the setting of the §366.26 hearing must first petition for an extraordinary writ; waiting until after the hearing will be too late. See Welf & I C §366.26(l). On writ procedures, see §§10.84–10.111.
In a nutshell, permanent placement options at the Welf & I C §366.26 hearing are (Welf & I C §366.26(b))
Adoption by a relative or nonrelative;
For Indian children, tribal customary adoption (see chap 9);
Guardianship with a relative or nonrelative guardian;
Placement with a fit or willing relative;
Child to remain in foster care (nonrelative) and the court has to consider guardianship first and any other permanent plan before the child remains in foster care;
For a child 16 years or older, another planned permanent living arrangement (APPLA) (previously known as long-term or continued foster care; see §§1.6A–1.6B), subject to periodic review.
The court must terminate parental rights unless
Termination of parental rights causes detriment to child. If the court finds, by clear and convincing evidence, that the child is adoptable, the court must terminate parental rights unless it finds that termination would be detrimental to the child. Detriment is determined by reference to two principles (Welf & I C §366.26(c)(1)(A)–(B)):
The child is living with a relative who is unwilling or unable to adopt the child but who is willing and capable of caring for the child on a permanent basis and removal of the child would be detrimental to the child; or
The court finds a compelling reason that termination of parental rights would be detrimental to the child based on six circumstances (otherwise referred to as exceptions to termination of parental rights), described in §§8.30–8.37.
No reasonable reunification services provided. A court may also not terminate parental rights if the court in prior proceedings in which it was required to make a finding regarding reasonable reunification services made a finding of no reasonable services at each and every review hearing before the setting of the §366.26 hearing (Welf & I C §366.26(c)(2)) (and in the case of an Indian child, the court finds that "active efforts" were not made as required in Welf & I C §361.7; see chap 9).