McDONALD, J., Concurring. Although we conclude Grandfather was not coerced to adopt, this is not the first time a complaint of this type has been lodged against Agency. (See In re Zeth S. (2003) 31 Cal.4th 396, 407 [2 Cal.Rptr.3d 683, 73 P.3d 541]; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1294, 1296 [7 Cal.Rptr.3d 153]; In re Eileen A. (2000) 84 Cal.App.4th 1248, 1261 [101 Cal.Rptr.2d 548]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1800 [58 Cal.Rptr.2d 684].) It is important to emphasize the Legislature’s clearly expressed preference for caretaker adoption.
[289]If a caretaker of a child believes Welfare and Institutions Code section 366.26, subdivision (c)(1)(D)1 should apply to preclude termination of parental rights,2 the caretaker may seek an alternative permanency plan and also remain entitled to the statutory preference for caretaker adoption under section 366.26, subdivision (k). That section provides:
“Notwithstanding any other provision of law, the application of any person who, as a relative caretaker or foster parent, has cared for a dependent child for whom the court has approved a permanent plan for adoption, or who has been freed for adoption, shall be given preference with respect to that child over all other applications for adoptive placement if the agency making the placement determines that the child has substantial emotional ties to the relative caretaker or foster parent and removal . . . would be seriously detrimental to the child’s emotional well-being.
“As used in this subdivision, ‘preference’ means that the application shall be processed and, if satisfactory, the family study shall be completed before the processing of the application of any other person for the adoptive placement of the child.” (Italics added.)
Legal professionals and social workers working with caretakers considering adoption should inform them they may seek an alternate permanency plan under section 366.26, subdivision (c)(1)(D) without fear of losing their statutory preference as adoptive parents. For the exception to apply, termination of parental rights must be significantly detrimental for the child. The court will not grant an exception under subdivision (c)(1)(D) based only on a preference for guardianship or family antipathy to adoption. (In re Jose V., supra, 50 Cal.App.4th at pp. 1800-1801.) If the court finds termination of parental rights would not be detrimental to an adoptable child under section 366.26, subdivision (c)(1)(D) and terminates parental rights, the caretaker nevertheless remains entitled to preferential consideration for adoptive placement. (See § 366.26, subd. (k); Fam. Code, § 8730; In re Sarah S. (1996) 43 Cal.App.4th 274, 285 [50 Cal.Rptr.2d 503].)
Caretakers should not be advised they will lose their opportunity to provide a permanent home for the children in their care if they are unwilling (or unable) to adopt at the time of the permanency hearing. As the person who meets the child’s day-to-day needs, a caretaker’s observations concerning any potential detriment to the child caused by terminating parental rights is vitally important to the court. The court, in malting the critical decision to terminate [290]parental rights or to choose another permanency plan, should be able to hear from a caretaker who does not fear losing the child to another adoptive placement.
Subdivision (n), a new provision in section 366.26 effective January 1, 2006, provides that a court may designate the child’s current caretaker as the designated prospective adoptive parent at the section 366.26 hearing or “anytime thereafter.” (§ 366.26, subd. (n).) To qualify, the caretaker must have cared for the child at least six months, currently express a commitment to adopt the child and have taken at least one step to facilitate the adoption process, like applying for an adoption home study, being designated by the court or the licensed adoption agency as the adoptive family, or requesting de facto parent status. (§ 366.26, subd. (n)(l), (2).) A designation (or eligibility for that designation) as the prospective adoptive parent gives the current caretaker the right to notice before a change in placement and to petition for a hearing in the event a decision is made to remove the child from the home. (§ 366.26, subd. (n)(3); but see § 366.26, subd. (n)(4) [right to notice not applicable if there is a risk of physical or emotional harm to child].)
Although section 366.26, subdivision (n) provides an incentive for a caretaker to commit to adoption before the permanency hearing, a caretaker who meets threshold eligibility requirements nevertheless retains the right to petition for status as the prospective adoptive parent after the permanency hearing. Section 366.26, subdivision (n) does not alter the view that a child’s interests are better served when a caretaker is not pressured to immediately commit to adoption if he or she believes termination of parental rights may be substantially detrimental to the child.
At a permanency hearing in which an alternate permanency plan is sought under section 366.26, subdivision (c)(1)(D), the question, “Are you willing to adopt if parental rights are terminated,” puts the cart before the horse. The proper question to ask the caretaker is, “What are your reasons for believing termination of parental rights will be detrimental to the child?” (See § 366.26, subd. (c)(1).) If the court finds termination of parental rights will not be detrimental and adoption is in the child’s best interests, Agency’s question to the caretaker should be, “Will you adopt this child?” (See § 366.26, subd. (k).)
Before a permanency hearing is held, Agency is charged with preparing a “preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker . .. .” (§ 366.21, subd. (i)(4), italics added.) Agency is not legally entitled before the permanency hearing to promise the caretaker an adoptive placement and threaten to rescind it if the caretaker does not immediately commit to adoption.
[291]The right of the child’s current caretaker to postpone a decision on adoption until the court has determined the appropriate permanency plan should be respected.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
A party to the case may also assert this exception applies.