(a) Applicability
This rule applies to the court's review under Welfare and Institutions Code section 14717.1 of the presumptive transfer of responsibility to arrange and provide for a child's or nonminor's specialty mental health services to the child's or nonminor's county of residence. The rule applies to presumptive transfer following any change of placement within California for a child or nonminor to a placement that is outside the county of original jurisdiction, including the initial placement. Nothing in this rule relieves the placing agency of the reporting requirements and duties under section 14717.1 when no hearing under this rule is held.
(b) Requesting a hearing to review the request for waiver of presumptive transfer (§ 14717.1)
(1) The following persons or agencies may make a request to the placing agency that presumptive transfer be waived and that the responsibility for providing specialty mental health services remain in the child's or nonminor's county of original jurisdiction:
(A) The foster child or nonminor;
(B) The person or agency that is responsible for making mental health care decisions on behalf of the foster child or nonminor;
(C) The child welfare services agency or the probation agency with responsibility for the care and placement of the child or nonminor; and
(D) Any other interested party who owes a legal duty to the child or nonminor involving the child's or nonminor's health or welfare, as defined by the department.
(2) The person or agency who requested the waiver, or any other party to the case who disagrees with the placing agency's determination on the request for the waiver of presumptive transfer, may request a judicial review of the placing agency's determination.
(3) A request for a hearing must be made by filing a Request for Hearing on Waiver of Presumptive Transfer (form JV-214). If a hearing is requested, form JV-214 must be provided to the placing agency within seven court days of the petitioner's being noticed of the placing agency's determination on the request for waiver of presumptive transfer.
(4) When a hearing is requested in (b)(3), the transfer of the responsibility for providing specialty mental health services cannot occur until the court makes a ruling as required in (c)(1).
(c) Setting of a hearing (§ 14717.1)
(1) The court on its own motion may direct the clerk to set a hearing no later than five court days after the request for a hearing was filed, or may deny the request for a hearing without ruling on the transfer of jurisdiction.
(2) If the court sets a hearing, the clerk must provide notice of the hearing date to:
(A) The parents-unless parental rights have been terminated-or guardians of the child;
(B) The petitioner;
(C) The social worker or probation officer;
(D) The mental health care decision maker for the child or nonminor, if one has been appointed under section 361(a)(1);
(E) The Indian child's tribe, if applicable, as defined in rule 5.502;
(F) The child-if 10 years of age or older-or nonminor; and
(G) All other persons entitled to notice under section 293 or section 727.4(a).
(3) If the court grants a hearing under (c)(1), responsibility for providing specialty mental health services cannot be transferred until the court makes a ruling as required in (e)(2) and section 14717.1(d)(4).
(d) Reports
When a hearing is granted under (c)(1), the social worker or probation officer must provide a report including discussion or documentation of the following:
(1) The placing agency's rationale for its decision on the request for a waiver of presumptive transfer, including:
(A) Any requests for waiver, and the exceptions claimed as the basis for those requests;
(B) The placing agency's determination of whether waiver of presumptive transfer is appropriate under section 14717.1(d)(5)(A)-(D);
(C) Any objections to the placing agency's determination in (B); and
(D) The ways that the child's or nonminor's best interests will be promoted by the placing agency's presumptive transfer determination.
(2) That the child or nonminor, his or her parents if applicable, the child and family team, and others who serve the child or nonminor as appropriate-such as the therapist, mental health care decision maker for the child or nonminor if one has been appointed under section 361(a)(1), and Court Appointed Special Advocate volunteer-were consulted regarding the waiver determination.
(3) That notice of the placing agency's determination of whether to waive presumptive transfer was provided to the individual who requested waiver of presumptive transfer, along with all parties to the case.
(4) Whether the mental health plan in the county of original jurisdiction demonstrates an existing contract with a specialty mental health care provider, or the ability to enter into a contract with a specialty mental health care provider within 30 days of the waiver decision, and the ability to deliver timely specialty mental health services directly to the foster child or nonminor.
(5) The child's or nonminor's current provision of specialty mental health services, and how those services will be affected by the placing agency's presumptive transfer determination.
(e) Conduct at the hearing
(1) The social worker or probation officer must provide the report in (d) to the court, all parties to the case, and the person or agency that requested the waiver no later than two court days after the hearing is set under (c)(1).
(2) At the hearing, the court may confirm or deny the transfer of jurisdiction or application of an exception based on the best interests of the child or nonminor. A waiver of presumptive transfer is contingent on the mental health plan in the county of original jurisdiction demonstrating an existing contract with a specialty mental health care provider, or the ability to enter into such a contract within 30 days of the waiver decision, and the ability to deliver timely specialty mental health services directly to the child or nonminor.
(3) The person or agency that requested the waiver of presumptive transfer bears the burden to show that an exception to presumptive transfer is in the best interests of the child or nonminor by a preponderance of the evidence.
(4) The hearing must conclude within five court days of the initial hearing date, unless a showing of good cause consistent with section 352 or section 682 supports a continuance of the hearing beyond five days.
(5) When considering whether it is in the child's or nonminor's best interests to confirm or deny the request for a waiver of presumptive transfer, the court may consider the following in addition to any other factors the court deems relevant:
(A) The child's or nonminor's access to specialty mental health services, the current provision of specialty mental health services to the child or nonminor, and whether any important service relationships will be affected by the transfer of jurisdiction or a waiver of presumptive transfer;
(B) If reunification services are being provided, the impact that the transfer of jurisdiction would have on reunification services;
(C) The anticipated length of stay in the child's or nonminor's new placement;
(D) The position of the child or nonminor, or of the child's or nonminor's attorney, on presumptive transfer; and
(E) The ability to maintain specialty mental health services in the county of original jurisdiction or to arrange for specialty mental health services in the county of residence after the child or nonminor changes placements.
(6) Findings and orders must be made on Order after Hearing on Waiver of Presumptive Transfer (form JV-215).
(f) Existing out-of-county placement
This rule applies to presumptive transfer for any child or nonminor who resided in a county other than the county of original jurisdiction after June 30, 2017, and who continues to reside outside his or her county of original jurisdiction after December 31, 2017, and has not had a presumptive transfer determination as required under Welfare and Institutions Code section 14717.1(c)(2). Unless amended by Judicial Council action effective after the effective date of this rule, this subdivision will be repealed effective January 1, 2020.
Rule 5.647 adopted effective September 1, 2018.
Advisory Committee Comment
The exceptions to the presumptive transfer of the responsibility to provide for and arrange for specialty mental health services to the county of the child's or nonminor's out-of-county residence are found in Welfare and Institutions Code section 14717.1(d)(5)(A-D). A court review hearing under this rule may not necessarily be common, but under section 14717.1(d)(7), for all cases, a request for waiver, the exceptions claimed as the basis for the request, a determination whether a waiver is appropriate under Welfare and Institutions Code section 14717.1, and any objections to the determination must be documented in the child's or nonminor's case plan under Welfare and Institutions Code section 16501.1. The Department of Health Care Services and California Department of Social Services are responsible for providing policy guidance and regulations to implement Assembly Bill 1299 (Ridley-Thomas; Stats. 2016, ch. 603). The policy guidance and regulations should be used during the administrative process related to presumptive transfer. This would include determining who is entitled to make a request for waiver under (b)(1)(D) of the rule and section 14717.1(d)(2), where "department" refers to the Department of Health Care Services. In the policy guidance and regulations, the Department of Health Care Services and California Department of Social Services will determine who owes a legal duty to the child or nonminor and thus may request a waiver of presumptive transfer. In addition, the policy guidance and regulations will address the timelines for the period to request a hearing. Presumptive transfer cannot occur until the court has made a ruling on the request for a hearing, and if a hearing is granted, makes a ruling as required in (c)(3). In accordance with the policy guidance issued by the Department of Health Care Services and California Department of Social Services, the delivery of existing specialty mental health services to the child or nonminor must however continue without interruption, and be provided or arranged for, and paid for by the Mental Health Plan in the county of original jurisdiction until the court makes a ruling on the request for a hearing or makes a ruling as required in (c)(3) if a hearing is granted.