This policy guide was updated from the 12/07/16 version to reflect changes in upper Management approval requirements for certain permanent plan recommendations per FYI 17-39, and include new legislation regarding the assessment of a successor guardian.

POLICY

WIC 366.26 Hearings

The WIC Section 366.26 hearing report identifies and implements a permanent plan for a dependent child of the juvenile court and a nonminor dependent. It should incorporate input and recommendations as discussed through the Child and Family Team process.

The WIC section 366.26 hearing is ordered by the court to:

Terminate parental rights

Establish legal guardianship

Order the plan of tribal customary adoption, or

Order a child to be placed with a fit and willing relative or in Another Planned Permanent Living Arrangement (APPLA).

The WIC 366.26 hearing is calendared within one hundred and twenty (120) days of:

A dispositional hearing at which the court ordered no Family Reunification (FR) services for all parents; or

A status review hearing where the court ordered the termination of FR services for all parents

The exception is that a WIC 366.26 must not be ordered for a Nonminor Dependent (NMD) unless:

The NMD is an Indian child and tribal customary adoption is recommended as the permanent plan.

The NMD requests adoption with an adult determined to be the NMD's permanent connection.

In such a case, the court may order adoption of the NMD pursuant to subdivision (f) of WIC Section 366.31.

For information on Tribal Customary Adoption (TCA) refer to Adopting and Serving Children Under the Indian Child Welfare Act (ICWA).sample

Legal Guardianship Recommendations

Legal guardianship is one of the permanent plans available for children when family reunification is not achieved. A legal guardian is assessed as to their ability to, among other things, exercise proper care and control of the child, accept legal and financial responsibility for the child; and provide the commitment, willingness, and ability to raise the child. While the Court has the option to keep jurisdiction open after granting legal guardianship, however, the general expectation consistent with this assessment, is that a family will exit the court and child welfare systems when legal guardianship is granted.

For families whose cases remain open with continued court jurisdiction, the Court and the Department continue to remain involved in their lives. Terminating jurisdiction and closing the cases, when it would otherwise be safe and appropriate to do so, will allow the children/families to have a better sense of normalcy.

Staff should refer to Procedural Guides Concurrent Planning and the Concurrent Planning Assessment (0080-507.20) and Kinship Guardianship Assistance Payment Program (0100-520.35) and form DCFS 5620, Comparison of Legal and Financial Benefits, Adoption, Legal Guardianship, Fit & Willing Relative and Another Planned Permanent Living, to provide families with accurate and comprehensive information regarding the different permanency options. This allows families to make informed decisions that result in the most appropriate recommendations to the court.

The Kin-GAP policy explains the Kin-GAP eligibility criteria, including the expanded definition of "relative" (referred to as fictive kin) for purposes of Federal Kin-GAP funding which includes an approved Nonrelative Extended Family Member (NREFM), an Indian Custodian or child's tribal member, or a foster parent who meets certain criteria

Non-related legal guardians can qualify as fictive kin/relatives only when entering Kin-GAP program and must have been eligible for six consecutive months of federal funding prior to the termination of court jurisdiction. The SOC 369 and SOC 369A forms must be signed prior to court granting guardianship to avoid losing federal funding eligibility. Revenue Enhancement will need the original forms to process Kin-GAP. In the event that the Court keeps jurisdiction open after granting legal guardianship, the family may still qualify for federal Kin-GAP later as long as the SOC 369 and SOC 369A forms are signed prior to court granting guardianship and all other eligibility requirements are met

Staff should consult with Revenue Enhancement’s Kin-GAP Manager/section regarding eligibility criteria prior to recommending Kin-GAP to the Court

With very few exceptions, eligible legal guardianship cases should be closed with Kin-GAP in place, in lieu of becoming non-court Non-Related Legal Guardianship cases (NRLG)

Refer to Legal Permanent Plans for Children for a table of the required approval including when Kin-GAP is not recommended with legal guardianship recommendations. Recommendations of Fit and Willing Relative, APPLA, Legal Guardianship with a non-relative, Legal Guardianship with a kin or fictive relative with open court jurisdiction requires ARA and RA approval

If a prospective legal guardian expresses a desire to keep their case open, staff should inquire regarding their reasons and explore solutions to address their concerns.

In other situations, a prospective legal guardian may need more time before assuming the responsibilities of a legal guardian, thus staff must evaluate if it is appropriate to postpone a legal guardianship recommendation. Court reports must specifically document reasonable efforts already completed and those planned by the Child and Family Team to address the barriers to permanency and a projected timeline for the caregiver to assume guardianship and the family to exit the court and child welfare systems when safe and appropriate to do so.

Recent legislation authorizes the assessment of a legal guardian to also include the naming of a prospective successor guardian if one is identified. In the event of the incapacity or death of an appointed guardian, it would authorize the named successor guardian to be assessed and appointed pursuant to the existing procedures that govern the appointment of a legal guardian.

WIC 366.26 Hearing Report

Reporting Responsibilities

Responsibilities for writing the WIC 366.26 hearing report depend upon the recommended permanent plan.

Recommended Plan	Individual Completing the Report
Adoption	Dependency Investigator (DI) & Resource Family Support and Permanency Division (RFSPD) CSW
Legal Guardianship (including Kin-GAP)	Dependency Investigator
Fit and Willing Relative	Case-Carrying CSW
Another Planned Permanent Living Arrangement (APPLA)	Case-Carrying CSW

For vertical case management sections that do not have DIs, the DI’s responsibilities are carried out by the case-carrying CSW.

A .26 DI may be assigned up to thirty (30) days following the setting of the WIC 366.26 hearing.

To refer the case to a DI, the case-carrying CSW must complete and submit a DCFS 4141, Request for Assignment of 26 DI, and the appropriate attachments prior to any WIC 366.26 hearing being set.

The case-carrying CSW must take on additional task responsibilities if the DCFS 4141 is submitted on or after the WIC 366.26 hearing is set.

The permanent plan may change after the DI’s receipt of the case packet. In those cases:

The case-carrying CSW will submit a court report to address the change and provide any additional documents necessary, such as a revised Concurrent Planning Assessment (CPA).

The DI or the case-carrying CSW that the permanent plan responsibilities change to will also be responsible for completing the WIC 366.26 hearing report.

At the discretion of the DI SCSW, a different DI may be assigned to write the WIC 366.26 hearing report if the plan changes from legal guardianship to adoption.

If an RFSPD CSW is not yet assigned and the permanent plan is Adoption, the CPA should be submitted in order to request activation of an RFSPD CSW.

For any WIC 366.26 report not written by the case-carrying CSW, he/she is to be consulted either on the readiness to proceed with termination of parental rights or on any change of recommendation.

Timeframes

Time frames for submitting the WIC 366.26 hearing report are as follows:

Submit to	Time Frame
SCSW	No later than thirty (30) calendar days prior to the hearing date.
Court Processing Unit (CPU)	No later than twenty (20) calendar days prior to the court hearing.
Juvenile Court Services JCS	No later than twelve (12) judicial days prior to the hearing.
Court Room	No later than noon, ten (10) judicial days prior to the hearing.

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Caregiver Requests to be Designated as a Prospective Adoptive Parent

Cases that meet all of the following criteria may be eligible to request that a prospective adoptive parent be designated:

Parental rights have been terminated

A child has resided for six (6) months or more in the home of a prospective adoptive parent or of a caregiver who has met the threshold criteria to be designated as a prospective adoptive parent

A caregiver currently expresses a commitment to adopt the child

A caregiver has taken at least one step to facilitate adoption

The court may make a designation on its own motion or upon a request by a caregiver, a child, or an attorney for any of these parties.

CSWs may not recommend a caregiver as prospective adoptive parent.

A request for designation as a prospective adoptive parent may be made at or after a hearing where parental rights are terminated, whether or not the child’s removal from the home is an issue.

A completed JV-321, Request for Prospective Adoptive Parent Designation, Notice, and Order, must be submitted with the request to the court.

Upon receipt of the JV-321 request, the court will evaluate whether the caregiver meets the threshold criteria for a prospective adoptive parent.

The court will issue a JV-327, Prospective Adoptive Parent Designation Order, reflecting its resulting findings and orders.

If there is a need to keep an address or telephone number confidential, a JV-322, Confidential Information-Prospective Adoptive Parent, must be filed.

The following actions are required under case-specific situations:

Situation	Required Actions
All parties, including DCFS, agree to request designation of a caregiver as a prospective adoptive parent.	The court may order the designation without a hearing.
The court has ordered a hearing on a request for designation of a prospective adoptive parent.	The Court Clerk’s Office is responsible for providing notice of the hearing to parties.
The child’s attorney makes the request.	The child’s attorney must provide notice to all parties.
A caregiver makes the request for designation at the same time an objection to the removal of a dependent child from his/her home is made.	The court must set a hearing date as soon as possible on the issue and no later than five (5) court days after the objection was filed.
The request for designation is made before a request for removal is filed or before an emergency removal has occurred.	The court must order that the hearing be set within thirty (30) calendar days after the filling of the request for designation. JV-328, Prospective Adoptive Parent Order After Hearing, reflects the court’s findings and orders from the hearing.

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PROCEDURE

Preparing for a Hearing Regarding a Request to Designate a Prospective Adoptive Parent

Case-Carrying CSW Responsibilities

Upon notification that a WIC 366.26 hearing is set regarding a request to designate a caregiver as a prospective adoptive parent:

Consult with your SCSW and the County Counsel to determine if DCFS should oppose the request.

If an RFSPD CSW is assigned to the case, include him/her and his/her SCSW in the consultation.

If it is determined that DCFS will not oppose the request, either:

Ask the County Counsel to notify the court of the decision, or

Send a brief report with the decision to the court

If it is determined that DCFS will oppose the request, consult with County Counsel as to what report, if any, must be prepared for the hearing and whether or not it will be necessary to appear at the hearing.

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Creating the 366.26 Hearing Report

Dependency Investigator (DI) Responsibilities

Upon receipt of the DCFS 4141, Request for Assignment of 26 DI, and its corresponding attachments, interview all parties.

Ensure that the completed SOC 369 and SOC 369A, and other requirements are attached for Kin-GAP recommendations.

If the DCFS 4141 is received prior to setting the WIC 366.26 hearing, send appropriate notice to all required parties.

Create the WIC 366.26 hearing report in CWS/CMS no later than forty (40) days before the hearing.

Complete the sections by referring to Completing the WIC 366.26 Hearing Report.

CSW/CMS automatically populates the name of the designated primary CSW. Other CSW's contributing to the content of the report must enter their name at the top left hand corner of the report. Also, the signatory line automatically populates. The last CSW or SCSW signing the report may need to delete pre-populated names and add his/her own.

CSW Preparing the Report Responsibilities

Make sure that all identifying information and court information in the CWS/CMS database is recorded and current, and as applicable the required actions and requirements have been completed in evaluating the appropriateness of the recommendation.

Complete the appropriate SDM reassessments.

Incorporate the information gathered from these tools into the court report.

Do not attach the SDM tools, unless ordered to do so by the court.

Manually complete any field on the report that is not populated by the database and delete the heading to any unnecessary sections.

If the .26 DI is completing the report, he/she must complete the Terminating Parental Rights (TPR) case review.

Following completion of the WIC 366.26 hearing report, obtain all necessary approvals for the report and Case Plan Update. Recommendations of Fit and Willing Relative, APPLA, Legal Guardianship with a non-relative, Legal Guardianship with a kin or fictive relative with open court jurisdiction requires ARA and RA approval.

Route the report and all attachments, including the completed DCFS 203, Interested Parties Mailing List & Photocopy Request, to DCFS support staff for final preparation and delivery to court. As applicable , attach the action plan to the court report.

Completing the WIC 366.26 Hearing Report

Refer to Completing the WIC 366.26 Hearing Report for guidance on completing the WIC 366.26 Report.

SCSW Responsibilities

Review the WIC 366.26 hearing report and all supporting documents, including any SDM tools used.

If appropriate, sign and date or electronically approve the report for return to the CSW/SCSW.

If necessary, return the packet to the CSW/SCSW for corrective action.

Forward any recommendation of Fit and Willing Relative, APPLA, Legal Guardianship with a non-relative, Legal Guardianship with a kin or fictive relative with open court jurisdiction requires ARA and RA approvaof Fit and Willing Relative, APPLA, Legal Guardianship with a non-relative, Legal Guardianship with a kin or fictive relative with open court jurisdiction to the ARA and RA for approval.

If adoption-related sections are to be completed, the RFSPD SCSW will notify the DI SCSW within three (3) days of approving of the RFSPD CSW’s section(s) of the report.

The WIC 366.26 DI SCSW will notify case-carrying CSW and his/her supervisors once all sections of the report, including that of the RFSPD CSW, are complete and ready for review.

If the case-carrying CSW and case-carrying SCSW have any concerns with the report, confer with them to resolve the issue(s).

Case-carrying SCSWs will notify the DI SCSWs of one (1) of the following within three (3) days:

That the report is complete

That there is need to confer about existing concerns

The WIC 366.36 report, including all approvals, must be submitted to the court at least ten (10) judicial days prior to the scheduled WIC 366.26 hearing, or by the date set by Court.

ARA Responsibilities

Review the report and any supporting documents.

If approved and applicable, forward the report packet to the RA/Division Chief for approval.

If not approved, return the report packet to the SCSW for corrective action.

RA/Division Chief Responsibilities

Review the report and any supporting documents.
If approved, sign and date the report, and return it to the SCSW.

If not approved, return the report packet to the SCSW for corrective action.

RFSPD CSW Responsibilities

After the WIC 366.26 hearing report is created in CWS/CMS, add any relevant portions directly onto the report.

Generate the report on CWS/CMS, if it has not been generated, no sooner than thirty-nine (39) days prior to the hearing to ensure the notice information populates.

Add the Resource Family Approval Progress Report attachment, if the RFA approval is currently under study by a Resource Family Recruitment and Approval Division (RFRAD) CSW.

Designate the sections you or the DI completed by noting the following phrases at the beginning and end of each section:

"This section is respectfully submitted by [NAME]."

"This concludes the section respectfully submitted by [NAME]."

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RFRAD CSW Responsibilities

If the prospective Adoptive/Legal Guardian Family is currently being assessed by RFRAD, provide the Resource Family Approval Progress Report to the CSWs (DI, RFSPD and CS CSWs, as applicable) so they can complete the 366.26 report.

APPROVALS

SCSW Approval

Refer to Legal Permanent Plans for Children for a table of these required approvals.

ARA Approval

Any report requesting a continuance

Refer to Legal Permanent Plans for Children for a table of these required approvals.

RFSPD ARA

Refer to Legal Permanent Plans for Children for a table of these required approvals

RA or Division Chief Approval

Refer to Legal Permanent Plans for Children for a table of these required approvals

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Helpful Links

Attachments

Completing the WIC 366.26 Hearing Report

Approval Required for Legal Permanent Plans for Children

Forms

CWS/CMS

JV 290, Caregiver Information Form

JV 505, Statement Regarding Paternity (Juvenile Dependency)

LA Kids

DCFS 203, Interested Parties Mailing List & Photocopy Request

DCFS 4141, Request for Assignment of 26 DI

DCFS 5520, An Introduction to the Post Adoption Contact Agreement

DCFS 5620, Comparison of Legal and Financial Benefits Adoption, Legal Guardianship, and Planned Permanent Living Arrangement

JV-350, Guardianship Pamphlet (in, Spanish, Chinese, Korean, Vietnamese)

Referenced Policy Guides

0080-505.20, Health and Education Passport (HEP)

0080-505.10, Youth Development: Transitional Independent Living Planning

0100-520.35, Kinship Guardianship Assistance Payment (Kin-GAP) Program

0080-507.20, Concurrent Planning and the Concurrent Planning Assessment

0200-510.00, Postadoption Services

0300-303.07, Non-Disclosure Orders

0300-306.05, Noticing Process for Juvenile Court Proceedings

0300-306.75, Due Diligence

0300-508.30, Identifying and Notifying the Court of Recurring Efforts to Locate Relatives and Nonrelative Extended Family Members (NREFMs)

0900-523.10, Social Security (SS)/Supplemental Security Income (SSI) Benefits for Children in Care

1200-500.05, Adopting and Serving Children under the Indian Child Welfare Act (ICWA)

1200-500.50, Photographic Identification of Children

Statutes

All County Letter (ACL) 16-28 – Another Planned Permanent Living Arrangement (APPLA)

California Rules of Court (CROC) Section 5.725 – States that the court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent, the rights of the other parent have already been terminated, or the other parent has relinquished custody of the child to the welfare department.

Welfare and Institutions Code (WIC) Section 224 – Sets forth legislative findings and declarations on the importance of maintaining Indian families together by providing active efforts to prevent the out-of-home placement of the child or to return an Indian child home.

WIC Sections 360(a) – State Kin-GAP eligibility requirements.

WIC Section 366.21(I)(6) – States that whenever a court orders that a Section 366.26 hearing be held, the agency supervising the child and the licensed county adoption agency are to prepare an assessment which shall include a description of efforts to be made to identify a prospective adoptive parent or legal guardian, including, but not limited to, child specific recruitment and listing on an adoption exchange.

WIC Section 366.24(b) – States that whenever an assessment is ordered pursuant to Section 361.5, 366.21, 366.22, 366.25, or 366.26 for Indian children, the assessment shall address the option of tribal customary adoption.

WIC Section 366.26 – Sets forth the requirements and guidelines for the hearing terminating parental rights or establishing guardianship of children adjudged dependent of the court. States that if, following the establishment of a legal guardianship, the county welfare department becomes aware of changed circumstances that indicate adoption or, for an Indian child, tribal customary adoption, may be an appropriate plan for the child, the department must notify the court. The court may vacate its previous order dismissing dependency jurisdiction over the child and order that a hearing be held pursuant to WIC Section 366.26 to determine whether adoption or continued legal guardianship is the most appropriate plan for the child.

WIC Section 11363 – State Kin-GAP eligibility requirements.

WIC Section 16002(e) – States that if parental rights are terminated and the court orders a dependent child to be placed for adoption, the licensed county adoption agency or the California Department of Social Services (CDSS) will take steps to facilitate ongoing sibling contact, except in those cases where the court determines by clear and convincing evidence that sibling interaction is contrary to the safety or well-being of the child.

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