Section 366.26 Hearing and 388 Motion in California Dependency Cases

In California juvenile dependency law, the Section 366.26 hearing is often considered the most consequential stage of a dependency case. Commonly referred to as the permanency planning hearing, this proceeding marks the point at which the court decides on a child’s permanent plan — adoption, legal guardianship, or long-term foster care. For parents, this hearing is often their last chance to prevent termination of parental rights. One of the few legal tools available to parents before the Section 366...

The Purpose of the Section 366.26 Hearing

Under WIC §366.26, the court must select and implement a permanent plan for the child once reunification services have been terminated or bypassed. The law prioritizes permanency and stability for the child over further efforts to reunify the family. At this stage, the legal focus shifts away from the parent’s progress and toward the child’s right to a permanent, stable home. At the Section 366.26 hearing, the court generally has four main options:

1. Adoption (WIC §366.26(b)(1)) – The preferred permanent plan.
2. Legal Guardianship (WIC §366.26(b)(3)) – Chosen if adoption is not in the child’s best interest.
3. Planned Permanent Living Arrangement (APPLA) – Generally for older youth.
4. Return to Parent – Rare at this stage unless extraordinary circumstances are proven.

The Standard of Proof

The agency must prove by clear and convincing evidence that the child is likely to be adopted. If that finding is made, the court must terminate parental rights unless the parent proves that one of the statutory exceptions to adoption applies. One of the most commonly raised exceptions is the beneficial parental relationship exception under WIC §366.26(c)(1)(B)(i). In In re Caden C. (2021) 11 Cal.5th 614, the California Supreme Court clarified that to establish this exception, a parent must prove three elements:

1. Regular Visitation and Contact – The parent visited consistently and maintained a relationship.
2. Benefit to the Child – The child would benefit from continuing the relationship.
3. Detriment from Termination – Termination would be detrimental to the child when balanced against adoption benefits.

Filing a WIC §388 Motion Before the Section 366.26 Hearing

A WIC §388 petition allows a parent to request that the court change its prior orders based on new evidence or changed circumstances. The parent must show:

1. A significant change of circumstances or new evidence.
2. That the requested change is in the child’s best interest.

If granted, the court may reinstate reunification services, modify orders, or even return the child home.

Strategic Considerations

Because the Section 366.26 hearing is often the last opportunity to prevent termination of parental rights, a 388 motion can be a powerful tool. Courts distinguish between changing circumstances and changed circumstances, and will generally deny the petition if progress is too recent or incomplete. A successful motion can also support arguments under Caden C. by showing the parent’s commitment and the strength of the bond.

Conclusion

The Section 366.26 hearing represents a turning point in a dependency case. Parents who have made meaningful progress may use a 388 motion to seek additional time or modification of orders, and may argue under Caden C. that the child’s emotional attachment outweighs the benefits of adoption. Careful preparation and credible evidence are essential to success at this critical stage.

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