If you haven’t regained custody of your children by the conclusion of the .21F hearing (Chapter 12), the court will schedule a hearing pursuant to WIC section 366.26. This hearing is supposed to select the best permanent plan for your children.

The first plan the social worker is likely to recommend is adoption by another person/s. Generally, this person is a foster parent, or an unfriendly relative. Adoption means that this person/s becomes the legal parent of your children; and that you and your family have no further rights or interests in the children. You lose the children forever.

When a relative adopts the children, that relative becomes the parent. For example, if your parents adopt the children, they become the parents of the children and you are not a brother or sister of the children. But if your in-laws adopt the children, you are of no relationship to the children.

Either way, you have no rights to visitation with the children, and if you are to see the children in the future, that will be at the sole discretion of the new adoptive parents.

Unless you were to win an appeal, an adoption cannot be overturned.

I am aware that it may be theoretically possible to bring a lawsuit to overturn an adoption, but it is highly unlikely.

The second plan that the social worker may recommend is legal guardianship. Under this plan, you remain the parent; but the legal guardian becomes the permanent care taker of the child, until age 18; making all the decisions about the child. You may have the right to visit; most likely these will be supervised or monitored visits.

You may have the right to overturn the legal guardianship and regain custody of the children. You need to discuss this option with a competent attorney.

The third plan the social worker may recommend is Long Term Foster care. Under this plan, the child remains with the foster parent, relative or family friend until the child is 18 years of age. This plan is rarely used these days. In most cases, social workers and courts opt for the more “favored” plan of permanency, which is adoption.

To prepare for the contested .26 hearing: 

The first hearing will be to inform the judge if you agree or disagree with the social worker’s recommendations. If you don’t agree, the court will set a trial/contest date for you to challenge the social worker’s recommendations.

If the recommendation is for adoption, you will immediately want to sit and discuss the case, and your alternatives, with your attorney. Needless to say, permanently losing your children is an extremely important topic, and you need to know what can be done to stop or delay this from happening.

A. 388 petition (See Chapter 10)

One of the first things I recommend is that the parent/s file a 388 petition and ask for several different remedies. Most of the time, I request return of the child, further Family Reunification Services, additional visitation to increase the bond between the parent and children, or placement of the children with friendly relatives.

The strategies and steps to implement some or all of these alternatives are beyond the scope of this book. Suffice it to say, you should discuss these things with your attorney, and if s/he is not willing to go through this process, you may want to consider changing attorneys.

B. Bonding Study

A “bonding study” between you and the children is extremely important. You should request that your attorney arrange such a study with a local expert; and in some cases the court may be willing to pay for it pursuant to Evidence Code section 730. If not, you may have to cover that cost.

During this time frame, it becomes important that you have continuous and frequent visitation. This, and other things that may help you stop or delay the termination of your parental rights, will most likely be fought by the social worker, the social worker’s attorney, and in a lot of cases, by the children’s attorney.

So you can see the importance in making sure your attorney takes the time and interest in implementing a plan to save your parental rights.

C. Notice of Appeal

If you lose this hearing, you should immediately ask your attorney to file the Notice of Appeal form. It is a two page form. If s/he is unable to do that for you, you have 60 days in which to file that form. The only hope that you may have to regain custody, or to prevent an adoption, is by way of this appeal.

If you cannot afford an appellate attorney, the appellate court will provide one for you; or you may hire your own.

Note that your appeal will only be based on the evidence submitted in the trial court. So, it is important that you and your attorney meet and confer in advance to determine the witnesses and documentary evidence that is going to be submitted to the court at this hearing.

Most important, is the subpoenaing of certain witnesses, to ensure their presence. If a witness is not present, it is unlikely the judge will give you a continuance to bring in that witness, unless you have a proof of service that the witness was served, but did not show.

Please call me for a consultation regarding your .26 hearing, or the appeal from your .26 hearing, or the denial of your 388 petition.
888 888 6582.

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