Permanency Planning Hearing California Case Law
In re Cory M. (1992) was decided under former section 366.25, which governed permanency planning hearings for children declared dependents of the juvenile court prior to January 1, 1989. (See In re Marilyn H. (1993) 5 Cal. 4th 295, 303-304 [19 Cal. Rptr. 2d 544, 851 P.2d 826]).
Under former section 366.25, the permanency planning hearing could be combined with a periodic six-month review hearing.
"At the permanency planning hearing the juvenile court was required to first determine whether the child could be returned to parental custody. If not, then the court was to determine whether there was a substantial probability of return within six months, and, if there were, the court was to set another permanency planning hearing within six months. ( 366.25.)
If the juvenile court determined that there was not a substantial probability of return to parental custody within six months, the court was to select one of three possible permanent plans: adoption, guardianship, or long-term foster care.
If adoption were selected, a separate proceeding in the superior court had to be filed pursuant to Civil Code section 232 to implement the plan. ( 366.25; Stats. 1982, ch. 978, 27, pp. 3540-3541.)" (Marilyn H., supra, 5 Cal. 4th at p. 302.)
In terms similar to section 366.26, subdivision (c)(1), former section 366.25, subdivision (d)(1) provided:
"If the court finds that it is likely that the minor can or will be adopted, the court shall authorize the appropriate county or state agency to proceed to free the minor from the custody and control of his or her parents or guardians pursuant to Section 232 of the Civil Code unless the court finds that any of the following conditions exist:
(A) the parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing this relationship. ..." (Cory M., supra, 2 Cal. App. 4th at p. 950.)
In Cory M., we noted that California Rules of Court, rule 1462(a)(3) restated this provision in positive terms: "the court shall determine whether it is likely that the child can or will be adopted and, if it so finds, the court shall determine whether one or more of the following conditions exist:
(A) the parent or guardian has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ...If the court finds that none of the conditions exists, the court shall authorize the initiation of proceedings under Civil Code section 232." (Cory M., supra, 2 Cal. App. 4th at p. 951.)
Reading the rule and the statute together, we concluded: "Implicitly, before authorizing termination of parental rights, the court must find that the minor would not benefit from continuing the parental relationship." (Ibid.)
While the exception provided in former section 366.25, subdivision (d)(1)(A) was continued in section 366.26, subdivision (c)(1)(A), the legislation including section 366.26 made major changes in the statutory scheme. to address the problem of lengthy delays in dependency proceedings, particularly when adoption was selected as the permanent plan, the Legislature comprehensively revised the dependency statutes based on recommendations by a task force of experts.
The legislation "substantially changed the procedure for permanently severing parental rights in cases where the child is a dependent of the court. It eliminated the need to file a separate Civil Code section 232 proceeding and brought termination of parental rights for dependent children within the dependency process through a selection and implementation hearing pursuant to section 366.26.
The task force reasoned that by eliminating the need for a separate action, 'minors who are adoptable will no longer have to wait months and often years for the opportunity to be placed with an appropriate family on a permanent basis.' ..." (Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 247 [19 Cal. Rptr. 2d 698, 851 P.2d 1307] (Cynthia D.), citation omitted; see also Marilyn H., supra, 5 Cal. 4th at p. 303; In re Lorenzo C. (1997) 54 Cal. App. 4th 1330, 1340 [63 Cal. Rptr. 2d 562] (Lorenzo C.).)