California Welfare and Institutions Code Section 366.26 - Interpretation

In re Jasmine T.(1999), the court concluded that "when subdivision (c)(4) of the Welfare and Institutions Code section 366.26 is read in context of the entire section, it is apparent that it was only intended to require . . . an order of visitation . . ." in the circumstance in which the child is palced in long-term foster care. ( Jasmine T., supra, 91 Cal. App. 4th at p. 621, emphasis added.) On that basis, Jasmine T. concluded no error had occurred when a juvenile court failed to order parental visitation, because the child's long-term plan was for legal guardianship, not foster care. (Ibid.) A simple example illustrates the error of the conclusion reached in Jasmine T.. Under subdivision (c)(1)(A) of section 366.26, a parent may avoid termination of her parental rights to an otherwise adoptable child if she can demonstrate she has "maintained regular visitation and contact with her child and the child would benefit from continuing the relationship." Once such a showing has been made, subdivision (c)(A) permits the court to select either legal guardianship or foster-care, in order, as the child's long-term placement . However, if the rule in Jasmine T. obtained, such a showing by the parent would be meaningless if the court chose guardianship over foster care, as it is statutorily required to do. In such a case, the parent would have gone to great lengths to demonstrate the detriment her child would suffer by termination of the parental relationship, and the significant benefits the child derives by maintaining that relationship. (See In re Autumn H. (1994) 27 Cal. App. 4th 567, 575 If parent is able to show that "severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed", strong statutory preference for adoption is overcome and the biological parent's rights will not be terminated.) Despite the fact that the parent had just made the very difficult showing of exceptional circumstances necessary to satisfy subdivision (c)(1)(A), under Jasmine T. and upon a further minimal finding of undefined detriment, the juvenile court could simply proceed to refuse to enter a visitation order, thereby effectively cutting off the ongoing relationship it had just concluded significantly benefited the child. In sum, in the general context of section 366.26, and the specific context of subdivision (c)'s mechanisms for avoiding termination of parental rights and maintaining the parent-child relationship, we conclude the Legislature did not intend subdivision (c)(4)'s requirement for a visitation order to apply only in those unusual circumstances in which a child is placed with and bonded to a foster parent who, although committed to a permanent relationship with the child, is unwilling to become a legal guardian.