(a) Request procedure
A dependent child's caregiver may be designated as a prospective adoptive parent. The court may make the designation on its own motion or on a request by a caregiver, the child, a social worker, the child's identified Indian tribe, or the attorney for any of these parties.
(1) A request for designation as a prospective adoptive parent may be made at a hearing where parental rights are terminated or a plan of tribal customary adoption is ordered or thereafter, whether or not the child's removal from the home of the prospective adoptive parent is at issue.
(2) A request may be made orally.
(3) If a request for prospective adoptive parent designation is made in writing, it must be made on Request for Prospective Adoptive Parent Designation (form JV-321).
(4) The address and telephone number of the caregiver and the child may be kept confidential by filing Confidential Information-Prospective Adoptive Parent (form JV-322), with form JV-321. Form JV-322 must be kept in the court file under seal, and only the court, the child's attorney, the agency, and the child's CASA volunteer may have access to this information.
(Subd (a) amended effective July 1, 2010; previously amended effective January 1, 2007, and January 1, 2008.)
(b) Facilitation steps
Steps to facilitate the adoption process include those listed in section 366.26(n)(2) and, in the case of an Indian child when tribal customary adoption has been identified as the child's permanent plan, the child's identified Indian tribe has designated the caregiver as the prospective adoptive parent.
(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 2007, and July 1, 2010.)
(c) Hearing on request for prospective adoptive parent designation
(1) The court must determine whether the caregiver meets the criteria in section 366.26(n)(1).
(2) If the court finds that the caregiver does not meet the criteria in section 366.26(n)(1), the court may deny the request without a hearing.
(3) If the court finds that the caregiver meets the criteria in section 366.26(n)(1), the court must set a hearing as set forth in (4) below.
(4) If it appears to the court that the request for designation as a prospective adoptive parent will be contested, or if the court wants to receive further evidence on the request, the court must set a hearing.
(A) If the request for designation is made at the same time a petition is filed to object to removal of the child from the caregiver's home, the court must set a hearing as follows:
(i) The hearing must be set as soon as possible and not later than five court days after the petition objecting to removal is filed with the court.
(ii) If the court for good cause cannot set the matter for hearing five court days after the petition objecting to removal is filed, the court must set the matter for hearing as soon as possible.
(iii) The matter may be set for hearing more than five court days after the petition objecting to removal is filed if this delay is necessary to allow participation by the child's identified Indian tribe or the child's Indian custodian.
(B) If the request for designation is made before the agency serves notice of a proposed removal or before an emergency removal has occurred, the court must set a hearing within 30 calendar days after the request for designation is made.
(5) If all parties stipulate to the designation of the caregiver as a prospective adoptive parent, the court may order the designation without a hearing.
(Subd (c) amended effective January 1, 2017.)
(d) Notice of designation hearing
After the court has ordered a hearing on a request for prospective-adoptive-parent designation, notice of the hearing must be as described below.
(1) The following participants must be noticed:
(A) The adoption agency;
(B) The current caregiver,
(C) The child's attorney;
(D) The child, if the child is 10 years of age or older;
(E) The child's identified Indian tribe if any;
(F) The child's Indian custodian if any; and
(G) The child's CASA program if any.
(2) If the request for designation is made at the same time as a request for hearing on a proposed or emergency removal, notice of the designation hearing must be provided with notice of the hearing on proposed removal, as stated in rule 5.727(f).
(3) If the request for designation is made before the agency serves notice of a proposed removal or before an emergency removal occurred, notice must be as follows:
(A) Service of the notice must be either by first-class mail or electronic service in accordance with section 212.5 sent at least 15 calendar days before the hearing date to the last known address of the person to be noticed, or by personal service on the person at least 10 calendar days before the hearing.
(B) Prospective Adoptive Parent Designation Order (form JV-327) must be used to provide notice of a hearing on the request for prospective adoptive parent designation.
(C) The clerk must provide notice of the hearing to the participants listed in (1) above, if the court, caregiver, or child requested the hearing.
(D) The child's attorney must provide notice of the hearing to the participants listed in (1) above, if the child's attorney requested the hearing.
(E) Proof of Notice Under Section 366.26(n) (form JV-326) must be filed with the court before the hearing on the request for prospective adoptive parent designation.
(Subd (d) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2017.)
(e) Termination of designation
If the prospective adoptive parent no longer meets the criteria in section 366.26(n)(1), a request to vacate the order designating the caregiver as a prospective adoptive parent may be filed under section 388 and rule 5.570.
(Subd (e) amended effective January 1, 2017; previously amended effective January 1, 2007.)
(f) Confidentiality
If the telephone or address of the caregiver or the child is confidential, all forms must be kept in the court file under seal. Only the court, the child's attorney, the agency, and the child's CASA volunteer may have access to this information.
Rule 5.726 amended effective January 1, 2019; adopted as rule 1463.1 effective July 1, 2006; previously amended and renumbered as rule 5.726 effective January 1, 2007; previously amended effective January 1, 2008, July 1, 2010, and January 1, 2017.