(a) Purpose
This rule provides the procedures that must be followed when a disposition hearing for a nonminor is set under Welfare and Institutions Code section 358(d).
(b) Notice of hearing (§§ 291, 295)
(1) The social worker must serve written notice of the hearing in the manner provided in section 291 to all persons required to receive notice under section 295, including the nonminor's parent or guardian.
(2) The social worker must serve a copy of the Nonminor's Informed Consent to Hold Disposition Hearing (form JV-463) with the notice to the youth.
(c) Informed consent (§§ 317, 358)
(1) Unless the court has appointed a guardian ad litem for the nonminor or the nonminor is not locatable after reasonable and documented efforts have been made to locate the nonminor, the court must find that the nonminor:
(A) Understands the potential benefits of continued dependency;
(B) Has been informed of their right to seek termination of dependency jurisdiction under section 391 if the court establishes dependency;
(C) Has been informed of their right to have dependency reinstated under section 388(e) if the court establishes dependency; and
(D) Has had the opportunity to confer with their attorney regarding providing informed consent.
(2) The youth must give informed consent to the disposition hearing by completing and signing Nonminor's Informed Consent to Hold Disposition Hearing (form JV-463). The youth or their attorney must file the form with the court at or before the scheduled disposition hearing.
(3) If the nonminor is not competent to direct counsel and give informed consent in accordance with Code of Civil Procedure section 372 and Probate Code sections 810 thru 813, the court must appoint a guardian ad litem to determine whether to provide informed consent on the nonminor's behalf by completing and signing Nonminor's Informed Consent to Hold Disposition Hearing (form JV-463) and filing it with the court at or before the scheduled disposition hearing.
(d) Conduct of the hearing (§§ 295, 303, 358, 361)
(1) The hearing may be attended, as appropriate, by participants invited by the nonminor in addition to those entitled to notice under (b).
(2) The nonminor may appear by telephone as provided in rule 5.900(e).
(3) If the nonminor or the nonminor's guardian ad litem does not provide informed consent, the court must vacate the temporary orders made under section 319, and dependency or general jurisdiction must not be retained. Before dismissing jurisdiction, the court must make the following findings:
(A) Notice was given as required by law;
(B) The requirements of (c)(1) have been met unless a guardian ad litem has been appointed for the nonminor or the nonminor could not be located after reasonable and documented efforts have been made to locate the nonminor;
(C) If the reason the nonminor did not give informed consent is because the social worker could not locate the nonminor, the court must find that after reasonable and documented efforts the nonminor could not be located.
(4) If the nonminor or the nonminor's guardian ad litem does provide informed consent, the court must proceed to a disposition hearing consistent with this rule and section 358(d). The parent or guardian of the nonminor may participate as a party in the disposition hearing, receive the social study and other evidence submitted for the hearing, and present evidence. The parent's participation is limited to addressing the court's consideration of whether one of the conditions of section 361(c) existed immediately before the nonminor attained 18 years of age.
(e) Social study (§§ 358, 358.1, 361.6, 366.31)
(1) The petitioner must prepare a social study of the nonminor if the court proceeds to a disposition hearing. The social study must include a discussion of all matters relevant to disposition and a recommendation for disposition.
(A) Whether one of the conditions of section 361(c) existed immediately before the youth attained 18 years of age.
(B) The reasonable efforts that were made to prevent or eliminate the need for removal.
(C) A plan for achieving legal permanence or successful adulthood, if reunification is not being considered.
(D) If reunification services are being considered:
(i) A plan for reuniting the nonminor with the family, including a plan of visitation, developed in collaboration with the nonminor, parent or guardian, and child and family team;
(ii) Whether the nonminor and parent or guardian were actively involved in the development of the case plan;
(iii) The extent of progress the parent or guardian has made toward alleviating or mitigating the causes necessitating placement in foster care;
(iv) Whether the nonminor and parent, parents, or guardian agree to court-ordered reunification services;
(v) Whether reunification services are in the best interest of the nonminor; and
(vi) Whether there is a substantial probability that the nonminor will be able to safely reside in the home of the parent or guardian by the next review hearing date.
(E) The social worker's efforts to comply with rule 5.637, including but not limited to:
(i) The number of relatives identified and the relationship of each to the nonminor;
(ii) The number and relationship of those relatives described by (i) who were located and notified;
(iii) The number and relationship of those relatives described by (ii) who are interested in ongoing contact with the nonminor;
(iv) The number and relationship of those relatives described by (ii) who are interested in providing placement for the nonminor; and
(v) If it is known or there is reason to know that the nonminor is an Indian child, efforts to locate extended family members as defined in section 224.1, and evidence that all individuals contacted have been provided with information about the option of obtaining approval for placement through the tribe's license or approval procedure.
(F) If siblings are not placed together, an explanation of why they have not been placed together in the same home, what efforts are being made to place the siblings together, or why making those efforts would be contrary to the safety and well-being of any of the siblings.
(G) How and when the Transitional Independent Living Case Plan was developed, including the nature and the extent of the nonminor's participation in its development and, for an Indian child who has elected to have the Indian Child Welfare Act apply to them, the extent of consultation with the tribal representative.
(H) All other relevant information as required in sections 358 and 358.1.
(I) The requirements of section 366.31(b).
(J) If the recommendation is to consider the findings in (h)(3)(C) at the disposition hearing:
(i) the requirements of section 366.31(d), if reunification services under section 361.6 are recommended, or
(ii) information addressing the required judicial determinations of section 366.31(e).
(2) The petitioner must submit the social study and copies of it to the court clerk at least 48 hours before the disposition hearing is set to begin, and the clerk must make the copies available to the parties and attorneys. A continuance within statutory time limits must be granted on the request of a party who has not been furnished with a copy of the social study in accordance with this rule.
(Subd (e) amended effective January 1, 2023; previously amended effective September 1, 2021, and October 1, 2021.)
(f) Case plan and Transitional Independent Living Case Plan (§§ 11401, 16501.1)
(1) Whenever court-ordered services are provided, the social worker must prepare a case plan consistent with section 16501.1 and the requirements of rule 5.690(c).
(2) At least 48 hours before the hearing, the nonminor's Transitional Independent Living Case Plan must be submitted with the report that the social worker prepared for the hearing and must include:
(A) The individualized plan for the nonminor to satisfy one or more of the criteria in section 11403(b) and the nonminor's anticipated placement as specified in section 11402; and
(B) The nonminor's alternate plan for their transition to independence-including housing, education, employment, and a support system-in the event that the nonminor does not remain under juvenile court jurisdiction.
(g) Evidence considered (§§ 358, 360)
At a hearing held under this rule, the court must receive in evidence and consider the following:
(1) The social study described in (e), the report of any CASA volunteer, and any relevant evidence offered by the petitioner, nonminor, or parent or guardian. The court may require production of other relevant evidence on its own motion. In the order of disposition, the court must state that the social study and the study or evaluation by the CASA volunteer, if any, have been read and considered by the court.
(2) The case plan, if applicable, and the Transitional Independent Living Case Plan.
(h) Findings and orders (§§ 358, 358.1, 361, 361.6, 390)
After the nonminor or the nonminor's guardian ad litem provides informed consent, the court must consider the safety of the nonminor, determine if notice was given as required by law, and determine if by clear and convincing evidence one of the conditions of section 361(c) existed immediately before the nonminor attained 18 years of age.
(1) If the court does not find by clear and convincing evidence that one of the conditions of section 361(c) existed immediately before the nonminor attained 18 years of age, the court must vacate the temporary orders made under section 319 and dismiss dependency jurisdiction.
(2) If the court finds by clear and convincing evidence that one of the conditions of section 361(c) existed immediately before the nonminor attained 18 years of age, the court must declare dependency and:
(A) Order the continuation of juvenile court jurisdiction and, consistent with (3), set a nonminor dependent review hearing under section 366.31 and rule 5.903 within 60 days or six months, or
(B) Set a hearing to consider termination of juvenile court jurisdiction over the nonminor dependent under rule 5.555 within 30 days, if the nonminor dependent chooses not to remain in foster care.
(3) If the court makes the finding in (2), the following findings and orders must be made and included in the written court documentation of the hearing, with the exception of those findings and orders stated in (C) that may be made at the nonminor disposition hearing or at a nonminor dependent status review hearing under section 366.31 and rule 5.903 to be held within 60 days:
(A) Findings
(i) Whether reasonable efforts have been made to prevent or eliminate the need for removal;
(ii) Whether the social worker has exercised due diligence in conducting the required investigation to identify, locate, and notify the nonminor dependent's relatives consistent with section 309(e); and
(iii) Whether a nonminor who is an Indian child chooses to have the Indian Child Welfare Act apply to them as a nonminor dependent.
(B) Orders
(i) Order that placement and care is vested with the placing agency.
(ii) Order the county agency to comply with rule 5.481, if there was no inquiry or determination of whether the nonminor dependent was an Indian child before the nonminor dependent attained 18 years of age and the nonminor dependent requests an Indian Child Welfare Act determination.
(iii) The court may order family reunification services under 361.6 for the nonminor and the parent or legal guardian. Court-ordered reunification services must not exceed the time frames as stated in section 361.5.
(C) The following findings and orders must be made either at the nonminor disposition hearing held under this rule and section 358(d), or at a nonminor dependent status review hearing under rule 5.903 and section 366.31 held within 60 days of the nonminor disposition hearing:
(i) The findings and orders required by rule 5.903(e);
(ii) For a nonminor dependent whose case plan is court-ordered family reunification services, a determination of the following:
a. The extent of the agency's compliance with the case plan in making reasonable efforts or, in the case of an Indian child, active efforts, as described in section 361.7, to create a safe home of the parent or guardian for the nonminor dependent to reside in or to complete whatever steps are necessary to finalize the permanent placement of the nonminor dependent; and
b. The extent of progress the parents or legal guardians have made toward alleviating or mitigating the causes necessitating placement in foster care.
(Subd (h) amended effective January 1, 2023.)
Rule 5.697 amended effective January 1, 2023; adopted effective January 1, 2021; previously amended effective September 1, 2021, and October 1, 2021.