IN RE: JENNIFER M. (1992)

Scott B., the father of Jennifer M., appeals from an order finding he molested his daughter, terminating reunification services and ordering a permanency planning hearing and from an order finding Jennifer adoptable and terminating Scott's parental rights.   We consolidated the appeals.   On appeal, Scott contends the court should have considered placing Jennifer with her paternal grandparents and the Interstate Compact on the Placement of Children (ICPC) (Civ.Code, § 264 et seq.) is unconstitutional.   Scott also contends the court erred in denying his motion for rehearing to consider grandparent placement by refusing to consider attachments to his motion.¹  We reverse.

FACTS

In July 1989, the juvenile court assumed jurisdiction over Jennifer and removed her from the home of her mother and the mother's boyfriend because Jennifer had been sexually abused.   In March 1990, the social worker for the Department of Social Services (Department) located Scott in Oregon through the mother and Scott's parents.   On April 16, the social worker initiated ICPC evaluations of the homes of Scott and of his parents in Oregon.

The Department filed a new petition in August 1990 alleging both parents had molested Jennifer, based on information Jennifer had revealed in therapy and discussions with the social worker that the mother, the mother's boyfriend and Scott had sexually molested Jennifer in ritualized abuse involving a “devil church.”

On September 17, 1990, the social worker called the California ICPC office and left a message for the worker assigned to the home evaluations for Scott and his parents.   The ICPC worker returned the call on September 18 and said the ICPC packet would be sent to Oregon the following week.

A jurisdictional hearing on the new petition was held in November 1990.   Jennifer, her father and the social worker testified at the hearing.   Based upon the evidence presented, the court found by clear and convincing evidence that Jennifer had been the victim of ritualistic sexual abuse by her mother, her mother's boyfriend and by her father, Scott.   The court found, by a preponderance of the evidence, that it would be detrimental to return Jennifer to the physical custody of her parents.   The court terminated reunification services to the parents and ordered a permanency planning hearing to be held pursuant to Welfare and Institutions Code 2 section 366.26.

Scott unsuccessfully sought a rehearing and concurrently filed an appeal and a petition for a writ of mandate or stay of the section 366.26 proceedings in this court.   We denied his petition, issuing a written order holding there was sufficient evidence to support a finding he molested Jennifer, the conditions on visitation were proper, Scott was provided with reasonable reunification services but failed to participate and the court properly terminated Scott's reunification services.   We consolidated this first appeal with Scott's later appeal from the section 366.26 hearing.

The section 366.26 hearing was held on March 25, 1991.   At the outset of the hearing, Scott sought permission to have the grandparents testify about placing Jennifer in their home.   At the time of the hearing, the ICPC evaluation of the grandparents' home had not yet been finalized.   Scott explained the grandparents had an appropriate home for Jennifer and were interested in serving as her guardians, adopting her or undertaking long-term foster care.   Scott stated the grandparents would testify that as soon as the Department contacted them, they indicated a willingness to have Jennifer in their home but their home was not evaluated until January 1991;  they repeatedly contacted the authorities in both San Diego and Oregon;  the authorities continually discouraged the grandparents, always giving “an indication that there really [was not] any use in their attempting to have the child in their home or make those efforts because that [was] not going to happen;”  and that the only reason for the grandparents' delay in entering the case was because they were not notified of the dependency proceeding.

The court ruled the grandparents' testimony was irrelevant.   The court stated:

“The fact that the Interstate Compact for the protection of the children has not been finalized, it would at this time make it speculative for the Court to consider that [placement with grandparents].

“I would point out that the Legislature has indicated that the Court must hold this hearing within 120 days.   This is the 120th day and the Court has no authority nor discretion under the statutes to continue even for good cause.

“So as far as I understand your offer of proof, because it does not contain as an element that there has been ICPC approval of their household, then even if the Court were to accept their testimony, I would not have the authority under the Interstate Compact to send the child to Oregon.”

The court concluded, by clear and convincing evidence, that Jennifer was adoptable and termination of parental rights would not be detrimental to her.   The court terminated Scott's parental rights.

Scott sought a rehearing on April 3, 1991, contending the evidence was insufficient to terminate his parental rights, the court committed prejudicial error in refusing to allow the grandparents' testimony and in restricting his testimony and in refusing to continue reunification services and to place Jennifer with her grandparents.   On April 8, Scott filed “attachments” to his application for a rehearing which consisted of a declaration from the grandparents, a letter from the Oregon official who evaluated the grandparents' home, and a letter from the grandparents to the San Diego adoption worker.

The grandparents in their declaration stated they were first contacted in March 1990 by a San Diego social worker who was trying to locate Scott.   At that time, the social worker seemed to have a positive attitude towards the grandparents and asked for letters and pictures to help Jennifer remember them but refused to allow them to come to San Diego to visit Jennifer.   They were told Jennifer treasured the items they sent.   They had no idea Scott was accused of molesting Jennifer until September 1990 and believed he was innocent.   They contacted the Children's Services Division in Oregon to see if the home evaluation had been completed.   They did not attend the November hearing because the social worker told them it was not necessary for them to attend.   The Oregon social worker evaluated their home in January 1991.   He stated he did not know why he was doing the evaluation since it appeared the case had already been decided in San Diego and suggested they seek legal counsel.   They sought legal counsel and wrote a letter to the San Diego adoption worker.   They had not realized their “familial rights” were in jeopardy.   They pointed out they had “never been implicated in this cult business.”

In the January 18, 1991 letter from the Oregon social worker who evaluated the grandparents' home to the grandparents, the social worker stated he had contacted the San Diego adoption worker who had informed him Jennifer had been freed for adoption and an adoptive home was being sought for her, that the San Diego adoption worker believed Jennifer was “emotionally extremely fragile” and felt a home far from San Diego and her natural family was appropriate.   The adoption worker also stated she did not encourage the grandparents to apply to become Jennifer's adoptive parents.

In the January 23, 1991 letter from the grandparents to the San Diego adoption worker, the grandparents stated they had no affiliation with a cult and wanted to maintain a relationship with Jennifer.   They stated they were willing to give up “visual” contact with their son until approved by Jennifer's therapist, to relocate, or to attend counseling with Jennifer or for themselves.

The court, without considering Scott's attachments, denied his application for a rehearing on April 10, 1991.

DISCUSSION

IDisposition Hearing

Scott has appealed not only the court's order of adoption made at the section 366.26 hearing but also the jurisdictional and dispositional orders of November 1990.   Our initial inquiry is into the procedural background of this case to determine when and how the question of Jennifer's placement with her grandparents was raised and, accordingly, the scope of review on appeal.

In November 1990, after the court made its jurisdictional finding, it immediately proceeded to disposition.   Scott requested his home as well as the grandparents' home be evaluated for placement of the child.   He did not address arguments to a permanent plan for Jennifer nor argue the grandparents be considered as long-term or permanent caretakers for Jennifer.   It does not appear the grandparents were present at the November hearing.

Under section 361.3, the Legislature has stated a preference for placing children with their relatives at the disposition hearing.   The court in In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493, 257 Cal.Rptr. 1, explained this relative preference existing at the dispositional hearing:

“The object of dispositional hearings is to find a temporary caretaker who will meet the child's physical and psychological needs while cooperating in reunification efforts.   A relative, who presumably has a broader interest in family unity, is more likely than a stranger to be supportive of the parent-child relationship and less likely to develop a conflicting emotional bond with the child.”

The court here did not place Jennifer with her grandparents at the disposition hearing;  the court continued Jennifer in foster care and ordered a permanency planning hearing be held pursuant to 366.26.

Scott filed a writ as well as an appeal challenging the findings at the November jurisdictional and disposition hearings.   Among other things, in the writ, Scott challenged the termination of reunification services.   In a written order, we held reasonable reunification services were provided but Scott failed to participate.   In other words, we upheld the court's decision to terminate reunification services and order a permanency planning hearing be held.

“At the time of referral, the goal of the proceedings changes from reunifying the family to locating a permanent home for the child apart from the parent.”  (In re Taya C. (1991) 2 Cal.App.4th 1, 7, 2 Cal.Rptr.2d 810.)   The tie between parent and child, as a practical matter, is severed by the referral to a permanency planning hearing when reunification services to the parents are terminated and the court is left with only certain limited options, none of which directly involves the parent.  (Ibid.)

Here, once Scott's reunification services were terminated, the goal of the proceedings shifted from trying to reunify him with Jennifer while she was in the custody of a temporary caretaker to determining a permanent plan for Jennifer's care.   At this point in time, there is no longer an issue as to whether the court should have placed Jennifer with the grandparents at the disposition hearing;  the issue of a temporary caretaker for Jennifer, whether care was provided for by Scott or his parents, was mooted by the court's referral to the section 366.26 hearing.

II

Permanency Planning Hearing

At the permanency planning hearing, Scott attempted to introduce testimony and declarations from the grandparents.   The court excluded the testimony as irrelevant.

 The abiding principle in child dependency cases, including a permanency planning hearing, is the welfare and best interests of the child.  (In re Kerry O. (1989) 210 Cal.App.3d 326, 333, 258 Cal.Rptr. 448;  § 366.26, subd. (g).)  The permanency planning hearing aims “to end the uncertainty of foster care and allow the dependent child to form a long-lasting emotional attachment to a permanent caretaker.”  (In re Emily L. (1989) 212 Cal.App.3d 734, 742, 260 Cal.Rptr. 810;  In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187, 2 Cal.Rptr.2d 569.)

The permanency planning hearing is governed by section 366.26.   Under section 366.26, the court has four options:

“(1) Permanently sever the parent or parents' rights and order that the child be placed for adoption.

“(2) Without permanently terminating parental rights, identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the minor for a period not to exceed 60 days.

“(3) Without permanently terminating parental rights, appoint a legal guardian for the minor and issue letters of guardianship.

“(4) Order that the minor be placed in long-term foster care, subject to the regular review of the juvenile court.”  (§ 366.26, subd. (b).)

 Generally, adoption as a permanent plan for the child is preferred over guardianship and long-term foster care.  (In re Gerald J., supra, 1 Cal.App.4th 1180, 1188, 2 Cal.Rptr.2d 569;  Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 249, 264 Cal.Rptr. 4.)

The court may select adoption and “terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted.”  (§ 366.26, subd. (c)(1).)   If the court determines it is likely the child will be adopted, the findings made at the review hearing when the referral to the section 366.26 hearing was made that the child “cannot or should not be returned to his or her parent ․ shall then constitute a sufficient basis for termination of parental rights unless the court finds that termination would be detrimental to the minor due to one of [four enumerated extraordinary circumstances].”  (§ 366.26, subd. (c)(1).)

Subdivision (c)(1) of section 366.26 contains the four circumstances indicating a court should not order adoption because termination of parental rights would be detrimental to the child:

“(A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.

“(B) A minor 10 years of age or older objects to termination of parental rights.

“(C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.

“(D) The minor is living with a relative or foster parent who is unable or unwilling to adopt the minor because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the minor, but who is willing and capable of providing the minor with a stable and permanent environment and the removal of the minor from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the minor.”

Our reading of section 366.26 indicates the Legislature did not intend the four circumstances listed in subdivision (c)(1)(A), (B), (C) and (D) to be the only extraordinary circumstances which would justify the court in concluding an order of adoption would not then be in the child's best interests.   Subdivision (c)(4) of section 366.26 provides:

“If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor, or that one of the conditions in subparagraph (A), (B), (C), or (D) of paragraph (1) or in paragraph (2) [addressing reunification services] applies, the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the minor or order that the minor remain in long-term foster care․”

Thus, under section 366.26, subdivision (c)(4), the court may not order adoption if termination of parental rights would be detrimental to the child for the reasons enumerated in subdivision (c)(1), if subdivision (c)(2) applies or if “adoption of the minor or termination of parental rights is not in the interests of the minor.”   Subdivision (c)(4) recognizes other, nonenumerated extraordinary circumstances may justify a rejection of adoption and termination of parental rights at the permanency planning hearing.   This conclusion is also supported by subdivision (g) of section 366.26 which states:  “At all termination proceedings, the court ․ shall act in the best interests of the child.”

 Here, the record including Scott's offer of proof and the proffered declaration and letters shows the court was presented with an extraordinary circumstance.   The court was presented with grandparents who had a relationship with Jennifer when she was younger and had expressed a willingness to care for Jennifer early in the dependency over a year before the section 366.26 hearing but were prevented from participating because of the extraordinary slowness of the ICPC evaluation of their home and the Department's active discouragement.

The proffered evidence was relevant to determining what permanent plan was in Jennifer's best interests.   The grandparents were potential permanent caretakers for Jennifer who were willing to take drastic measures if necessary to provide proper care for Jennifer (e.g., giving up visual contact with Scott or moving).

We do not mean to suggest that the court at every section 366.26 hearing must consider relatives who come forward at the hearing.   Nor do we mean to suggest the court, in the usual case, need look beyond the enumerated circumstances listed in section 366.26, subdivision (c)(1) in determining whether termination of parental rights will be detrimental to the child or make a separate “best interests” determination.   We hold only that in the extraordinary circumstances of this case involving an early willingness to care for the child, an inexcusably long delay in evaluating the relatives caused by bureaucratic mismanagement, the Department actively discouraging the relatives from participating in the hearing and an offer of proof relevant to the child's best interest that the court had the power to and should have considered the proffered testimony of the grandparents before choosing a permanent plan for the child.

III

Discretion to Grant Continuance

 The court, at the section 366.26 hearing, excluded the grandparents' testimony and refused to consider placement of Jennifer with her grandparents because it believed it was required to order a permanent plan for Jennifer on the 120th day after the referral to a section 366.26 hearing and the hearing was held on the 120th day.

The Legislature has provided that if the court decides to order a section 366.26 hearing at the 12–month review hearing, it must “[o]rder that a hearing be held within 120 days․”  (§ 366.21, subd. (g)(3);  see also § 366.22, subd. (a), directing the court to hold a § 366.26 hearing within 120 days after the 18–month review hearing if the child is not returned to the parents.)

Thus, the trial court was correct that the Legislature has required a permanency planning hearing to be held within 120 days after a decision to adopt a permanent plan for the child has been made but wrong when it stated it had “no authority nor discretion under the statutes to continue even for good cause.”   The Legislature has granted the juvenile court general discretion to continue hearings beyond the time limits set.  (§ 352.)   Section 352, subdivision (a) provides:

“Upon request of counsel for the parent, ․ the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor.   In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.”

The court had the discretion to order a continuance so that the ICPC evaluation could be finalized.   Such an exercise of discretion would be in accord with the Legislature's stated preference for relative placement and the fact Jennifer was not going to be adopted by the foster parents (to whom she had presumably become bonded) but by strangers.   While there was an interest in resolving Jennifer's custody status and to provide her with a stable environment, the continuance necessary to finalize the report should have been relatively brief since the grandparents' home had been evaluated months earlier.   The court could have ordered immediate finalization of the evaluation.   By not granting a continuance, the court was deprived of evidence relevant to determining the permanent plan for Jennifer and whether the grandparents should be considered as guardians, potential adoptive parents or for providing long-term foster care.³

IV

Exclusion of Grandparents' Testimony as Harmless Error

 The Department suggests that the court's failure to consider the grandparents' testimony and possible placement of Jennifer with the grandparents was harmless because a social worker had stated in her November 1, 1990 report:  “Based on Jennifer's inclusion of various family members in the ritualistic abuse setting, and based upon both parents [sic] denial of the allegations, it seems extremely unlikely that any relatives could be considered as a possible placement for Jennifer.”   Nothing in the record suggests that the paternal grandparents were involved in any of the abuse.   Further, in their declaration with was part of the attachments to Scott's application for a rehearing, the grandparents made it clear they would not see their son, would engage in counseling, would relocate or do anything else necessary for Jennifer's welfare if they were granted custody.   Contrary to the Department's suggestion placement with the paternal grandparents was rejected, the record shows such placement was never given any serious consideration.⁴

Because we have found the court erred in refusing to consider the grandparents' testimony and proffered evidence and have found the error was not harmless, we must reverse the court's order of adoption and termination of Scott's parental rights and remand the case to the trial court to give the grandparents an opportunity to present their evidence.   However, mindful that the overriding concern in child dependency cases is the welfare and best interests of the child, the court, following remand, should not direct its inquiry to the circumstances existing at the time of the original permanency planning hearing in March 1991.   Over one year has now passed since the permanency planning hearing and the situation of Jennifer and her grandparents may have changed considerably.   In making its decision, the court must consider Jennifer's current situation and what would be in her best interests today.

V

Other Contentions

Since we have concluded the court erred in failing to consider the grandparents' testimony and a placement with the grandparents, we need not discuss Scott's contentions the court erred in failing to consider the “attachments” to his application for rehearing and in denying his application for rehearing or that the ICPC process is unconstitutional because it “unfairly burdens the rights of family members to associate with each other.”

DISPOSITION

The order from the section 366.26 hearing is reversed and the cause remanded for a hearing under section 366.26 so the court may consider the ICPC report and evidence by the grandparents in light of the currently existing circumstances and make appropriate findings under section 366.26.   The order finding Scott molested Jennifer and terminating reunification services is affirmed.

I respectfully dissent.   My argument is that the majority, in its distress at the administrative error created during the period of review hearings while the child was in temporary custodial care, is reversing a final dispositional order which is in no respect infected with prejudicial error.   In so doing the majority creates unusual and, I believe, ill-advised precedent.   This new precedent expands the issues potentially triable at a section 366.26 selection and implementation hearing far beyond the limited issues specified in section 366.26, subdivision (c)(1).   This new precedent has the potential for complicating the selection and implementation hearing, reducing its efficiency, expanding the potential for appeal, and generally undermining the objective of early and final selection of the ultimate disposition of dependent minors which is so clearly set forth in the new dependency statute.

The facts are accurately set forth in the majority opinion.   A brief recitation of same, however, may be helpful in terms of identifying the several stages of the case and the issues properly treatable in each portion thereof.

This case came to the attention of juvenile authorities in July 1989, upon allegations of sexual abuse of the six-year-old child.   The child was then living with her mother and the mother's boyfriend.   The child was detained at Hillcrest Receiving Home on July 19, and jurisdiction was assumed on July 20, 1989.   The dispositional hearing was held in October 1989, and the child was continued in foster care.   At a review hearing in November 1989, the child was detained with her mother.   In January 1990, a special hearing was held to request a change of placement.   The matter was continued until March 1, 1990, at which time the court ordered the child again placed in foster care.   In March 1990, the father and paternal grandparents were located in Oregon and, in April 1990, an Interstate Compact evaluation of the grandparents' living situation in Oregon was initiated.

A new petition asserting similar child abuse was filed in September 1990.   After a contested jurisdictional trial held in November 1990, the court declared the child a dependent child under section 300, subdivision (d) and continued removal from the parents under section 361, subdivision (b)(1) (substantial danger to the physical health of the child) and subdivision (b)(4) (sexual abuse of the child).   In light of the strength of the psychologist's information and the child's testimony of abuse, the court concluded there was no substantial probability the minor could be returned to either parent within the 18–month period provided for reunification.   The court therefore terminated reunification services and set the matter for a section 366.26 selection and implementation hearing.   Father was present at this referral hearing, and the court denied his request for a reunification plan.   Although the ICPC investigation of grandparents was apparently continuing at this point, indicating an objective of placement with grandparents, no specific request for placement with the grandparents was made.

The selection and implementation hearing took place on March 25, 1991.   Father was present as well as the paternal grandparents.   As stated in the majority opinion, the grandparents' testimony was excluded, although the court heard and considered an uncontested offer of proof as to what their testimony would be.   The heart of this offer of proof was that the grandparents were ready and available to accept placement of the child in a form which would be “a possible alternative to permanently severing the parents' rights and ordering that the child be placed for adoption.”   It is important to note that at no point did the grandparents offer to adopt the child:  Their offer was to “serve as guardians of the person of the minor or even undertake long-term foster care․”

The court heard testimony from the social worker handling adoptions concerning the adoptability of the child.   The social worker testified that the child was adoptable and that a suitable adoptive family had been located.   The court rejected testimony from father concerning alleged inadequate reunification services.   The trial judge stated his understanding of the law (which I find to be most accurate) as follows:

“[U]nder the old procedures the conduct of a parent would be looked [at] to determine whether or not there should be a termination of parental rights.  [¶] Under the new law, the only indicia of adoptability is whether or not the minor is considered or is, I believe in the statutory language, likely to be adopted.   The current legislative scheme indicates that [at] the 12 or 18–month review, if the Court finds that return would be detrimental and that reasonable services have been offered, then the Court must refer it to a [section 366.26 hearing].   That effectively terminates parental rights under the statutory scheme.

“So that in fact the solitary issue at an implementation hearing is first, whether or not the minor is adoptable.   That being the case, it is clear that the legislative intent is that issues leading to the assumption of jurisdiction to the progress or lack thereof of the parents on reunification are no longer to be considered by the Court at an implementation hearing.

“As I understand it, the only defenses that would be available are those listed in 366.26(c)(1)(A) through (D).”

In rendering its judgment, the court noted that grandparental rights are derivative of parental rights, and that when parental rights are terminated grandparental rights also vanish.   It determined that it had no power to consider options other than adoption once adoption was determined viable.   The court concluded by stating:  “Given the extent of the trauma that the minor has experienced, given the fact that there is an identifiable home, the Court having read the assessment and considered the evidence presented, considering the wishes of the minor, and acting in the best interest of the minor, the Court does find by clear and convincing evidence that Jennifer is considered adoptable.”   The court then terminated parental rights and referred the child for adoptive placement.

The majority reverses this judgment because (1) the trial court did not consider possible placement with the grandparents;  (2) the trial court excluded testimony of the grandparents;  and (3) the trial court stated it could not grant a continuance of the section 366.26 hearing.   The trial court was in error, as the majority points out, in believing it had no power to grant a continuance.   The trial court may also have strained the limits of discretion in refusing to hear testimony from the grandparents.   Neither of these alleged errors is prejudicial, however, unless the court at the time of the section 366.26 hearing could have granted alternative placement of the child with the grandparents.

Since the court was precluded, in my view, from granting such alternative placement, its exclusion of evidence about the wishes of the grandparents and its refusal to grant a continuance (to further explore that matter) did not constitute prejudicial error.

The majority appears to agree that the rulings made at the earlier review hearings cannot now be challenged in an appeal from the selection and implementation hearing.   Therefore, failure to place the child with grandparents, or anything else, for that matter, which happened in terms of interim custody of the child prior to the selection and implementation hearing, cannot properly be raised at the section 366.26 hearing.   This principle has been affirmed by a number of very recent cases.  (See In re Amanda B. (1992) 3 Cal.App.4th 935, 939, 4 Cal.Rptr.2d 922;  In re Taya C. (1991) 2 Cal.App.4th 1, 8, 2 Cal.Rptr.2d 810;  cf. In re Heather P. (1989) 209 Cal.App.3d 886, 890, 257 Cal.Rptr. 545.)   If the grandparents in this case wished to assert custodial rights pending the selection and implementation hearing, or if they wished to bring matters to the court's attention which might postpone or avert the selection and implementation hearing, they were obliged to do so by special motion as provided in section 388.  (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 5 Cal.Rptr.2d 148;  In re Sean E. (1992) 3 Cal.App.4th 1594, 5 Cal.Rptr.2d 193.)

The father and grandparents were not, however, actually contesting a failure to place the child with the grandparents during the temporary detention period preceding the selection and implementation hearing.   Their position was that the court at the selection and implementation hearing, even though it concluded the child was adoptable, should nevertheless have heard evidence and argument asserting that the child should be placed with the grandparents as guardians or long-term foster parents.   This position, which is upheld by the majority, is contrary to the statutory objectives.   Adoption as a permanency plan is preferred over guardianship or long-term foster care.  (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1188, 2 Cal.Rptr.2d 569;  Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 249, 264 Cal.Rptr. 4.)   The framework of section 366.26 enforces this conclusion by stating that the court “shall” terminate parental rights if it determines that the child is adoptable, and this mandate is avoided only if the court finds it would be “detrimental to the minor” to terminate parental rights based upon four specific circumstances.

In this case the court found by substantial evidence, which is not disputed, that the child was adoptable.   It therefore was obligated to terminate parental rights unless one of the four specific circumstances in section 366.26, subdivision (c)(1) were found applicable.   None of the specified circumstances is available in this case:  The parent in question had not maintained regular visitation (subpart (A));  the minor was not 10 years of age and in any event did not object to the termination (subpart (B));  the child was not in a residential treatment facility (subpart (C));  and the minor was not living in a custodial environment with a relative or foster parent from which removal would be detrimental (subpart (D)).

For reversal of this section 366.26 judgment to have any meaning one must accept the possibility that a different outcome might result on rehearing.   In order to test this possibility let us assume that the best possible report should be forthcoming from the Interstate Compact representatives in Oregon.   This would be, presumably, that the paternal grandparents have a good home, are good people, are capable of taking care of their grandchild, and could enter into long-term care as either guardians or foster parents.   Is it conceivable that a conscientious juvenile court judge would, or could, then choose such foster care over adoption?

We must note that at the time of the section 366.26 hearing the child had been in foster care and out of the home of her mother for more than one year.   She had not seen her father for a much longer period.   By the time of a rehearing in this case the child will have been separated from her natural parents for more than two years, and presumably (although we have not judicially noticed new developments in the case) will have been in her fost-adopt home for over a year.   She will be nine years old, will not have seen either parent for well over a year, and will not have seen the grandparents for a much longer period.

The court will not be swayed by any legal imperative to favor placement with the grandparents.   Although placement on a temporary basis with a relative after initial detention of the minor is favored (§§ 281.5, 361.3), once the court determines that the child should be freed for adoption “there is no longer any reason to give relatives preferential consideration in placement.”   (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493, 257 Cal.Rptr. 1.)   It is irrational to think that any judge would send this child back into the limbo of foster care, even in the care of a relative (particularly one she does not know).   This judicial remedy for the sin of failing to administer an Interstate Compact investigation efficiently is overkill.

What is the theoretical justification for this result?   The majority supports its decision on the basis of wording in section 366.26, subdivision (c)(4), which it concludes vests special and broad discretion in the trial judge to consider “extraordinary circumstances” which permit an exception to the desired placement of adoption.   This phrase is as follows:

“(4) If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor, or that one of the conditions in subparagraph (A), (B), (C), or (D) of paragraph (1) ․ applies, the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the minor or order that the minor remain in long-term foster care.”

Since this paragraph permits avoidance of adoption not only upon the grounds set forth in the alphabetic subparagraphs but also upon a determination that “adoption ․ is not in the interests of the minor,” the majority argues, we must imply additional possible reasons for an exception to the presumptive first choice of adoption.   The exceptional circumstance identified in this case, which might cause the court to utilize subdivision (4) of subparagraph (c), is the failure of state administrative officials to administer with efficiency the procedures of the Interstate Compact.

The court is saying that, in addition to the four alphabetic exceptions to reference for adoption, an additional exception arises when grandparents have been unreasonably prevented from seeking temporary custody of the grandchild.   It appears the majority is engrafting a special exception to subparagraph (D).   Subparagraph D contains an exception to the rule requiring adoption when the minor is living with a caretaker who is unable or unwilling to adopt but is willing to provide permanent care, and where the removal of the minor from that care “would be detrimental to the emotional well-being of the minor.”   The majority would enlarge this exception to provide that adoption may be denied where there is a caretaker who is willing to undertake care of the minor, which care may prove beneficial to the emotional well-being of the minor.

There is no judicial or statutory precedent for the majority's ruling.   It is based entirely on the majority's reading of the words of the statute.   I have found no legislative history which supports the majority's interpretation.   I contend that this interpretation is not only erroneous but potentially very detrimental to the working of our new dependency law provisions.

Admittedly, the construction of the majority is supportable in terms of grammatical analysis.  Section 366.26, subdivision (c) specifies termination of parental rights upon a determination of adoptability.   The second sentence of the subparagraph then permits the court to utilize findings made at prior hearings (i.e., reunification services should be terminated, the parent's whereabouts are unknown, etc.) as a “sufficient basis for termination of parental rights․”   A finding that one has a “sufficient basis” for making an order usually does not suggest an obligation to make the order.   Notwithstanding that the circumstances permitting avoidance of the adoption order are then set forth in the four specific alphabetic paragraphs, it is true that subdivision (c)(4) then contains the additional apparently permissive wording we have quoted above.   One cannot fault the pure logic of the majority.

However, the result obtained by application of this logic is, I contend, contrary to the objectives of the statute.   The objectives of the new law are explained in the Senate Task Force Report issued January 1988.  “At the permanency hearing the court has only three options:  termination leading to adoption, guardianship, or long-term foster care.   The Court is to choose the disposition best for the child;  however, as under present law, adoption is the preferred disposition, long-term foster care the least preferred.”  (Sen. Select Com.Rep. on Children and Youth, Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (1988) p. 11.)   The report explains that only two findings are necessary to terminate parental rights:  that the child is likely to be adopted and that there has been a previous determination to terminate reunification services.   The report then continues by saying that “[t]ermination would not be permissible, however, in the following situations” (ibid.), then outlining the four alphabetic exceptions contained in section 366.26, subdivision (c)(1).

The report goes on to state that in designing the new termination procedure “it was the intent of the task force to eliminate duplication between the regular review hearings and the termination hearing.   Therefore, the decisions made at the review hearing regarding reunification are not subject to relitigation at the termination hearing.”  (Sen. Select Com.Rep., supra, at p. 12.)

Under present procedures the issues to be considered at the selection and implementation hearing are quite limited:  The court considers only whether the child is adoptable and whether one of the four specific alphabetic exceptions exists.   Parents are not allowed to relitigate old, or new, or general questions which might relate to the “best interests” of the child.   The majority now states that this is wrong.   Any evidence which pertains to something arguably in the interests of the child is now to be admitted and considered.   This is said not to be a major shift in current practice because “in the usual case [the court] need [not] look beyond the enumerated circumstances listed in section 366.26, subdivision (c)(1).”  (Maj. opn., p. 433.)   However, in order to determine whether the case at hand is the “usual case” the trial court must now admit the evidence and consider whether the circumstance is an “extraordinary” one, as the majority finds this circumstance to be.   Of course, every decision of a trial court that special facts do not constitute an “extraordinary circumstance” will give rise to an appeal.   These appeals will be from selection and implementation hearings, and they will raise all manner of unlimited issues which we had hoped were excluded by the otherwise tight language of section 366.26, subdivision (c).

I greatly fear that the precedent established by the majority in this case will result in confusion at the trial court level as to what issues and evidence must be considered at the selection and implementation hearing;  that the effect of this confusion will be more protracted hearings with more appeals;  and that the end product will be detriment to the objective of prompt disposition of the permanent placement of children.   This is not a wise direction in which to take this law.

FOOTNOTES

1.   Scott also contends insufficient evidence supports the finding he molested Jennifer, visitation should not have been conditioned on the social worker's approval and reunification services should not have been terminated.   We resolved these issues adversely to Scott in a written order denying his petition for a writ of mandate which was filed concurrently with his first appeal.  (Scott B. v. Superior Court (March 21, 1991) D014049.)   Therefore, we need not address these issues in this appeal.

FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN2. All statutory references are to the Welfare and Institutions Code unless otherwise specified.

3.   We also note section 366.26, subdivision (b)(2), allows the court to continue the permanency planning hearing even when it identifies adoption as the permanent placement goal.   The court may, without terminating parental rights, identify adoption as the goal and order efforts be made to locate an appropriate adoptive family for the child.   Arguably, this subdivision is broad enough to have allowed the court to order investigation of the grandparents as potential adoptive parents.

4.   The Department also suggests Scott lacks standing to attack the trial court's exclusion of the grandparents' testimony, possible placement with the grandparents or the constitutionality of the ICPC.   The Department contends it was the grandparents, rather than Scott, who had standing.   Consideration of placement with the grandparents presented the court with options of guardianship and long-term foster care as well as adoption;  these options impact Scott's parental rights since only the third option results in the termination of those rights.   We therefore believe he had standing to raise the issue.

KREMER, Presiding Justice.

TODD, J., concurs.