(a) Application of rule
This rule applies, after termination of parental rights or, in the case of tribal customary adoption, modification of parental rights, to the removal by the Department of Social Services (DSS) or a licensed adoption agency of a dependent child from a prospective adoptive parent or from a caregiver who may meet the criteria for designation as a prospective adoptive parent in section 366.26(n)(1). This rule does not apply if the caregiver requests the child's removal.
(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2007, and July 1, 2010.)
(b) Participants to be served with notice
Before removing a child from the home of a prospective adoptive parent as defined in section 366.26(n)(1) or from the home of a caregiver who may meet the criteria of a prospective adoptive parent in section 366.26(n)(1), and as soon as possible after a decision is made to remove the child, the agency must notify the following participants of the proposed removal:
(1) The court;
(2) The current caregiver, if that caregiver either is a designated prospective adoptive parent or, on the date of service of the notice, meets the criteria in section 366.26(n)(1);
(3) The child's attorney;
(4) The child, if the child is 10 years of age or older;
(5) The child's identified Indian tribe if any;
(6) The child's Indian custodian if any;
(7) The child's CASA program if any; and
(8) The child's sibling's attorney, if the change in placement of a dependent child will result in the separation of siblings currently placed together. Notice must be made in accordance with Code of Civil Procedure section 1010.6.
(Subd (b) amended effective January 1, 2019; previously amended effective January 1, 2007, and January 1, 2017.)
(c) Form of notice
DSS or the agency must provide notice on Notice of Intent to Remove Child (form JV-323). A blank copy of Objection to Removal (form JV-325) and Request for Prospective Adoptive Parent Designation (form JV-321) must also be provided to all participants listed in (b) except the court.
(Subd (c) amended effective January 1, 2017; previously amended effective January 1, 2007, and January 1, 2008.)
(d) Service of notice
DSS or the agency must serve notice of its intent to remove a child as follows:
(1) DSS or the agency must serve notice either by first-class mail or by electronic service in accordance with section 212.5, sent to the last known address of the person to be noticed, or by personal service.
(2) If service is by first-class mail, service is completed and time to respond is extended by five calendar days.
(3) If service is made through electronic means, service is completed and time to respond is extended in accordance with Code of Civil Procedure section 1010.6.
(4) Notice to the child's identified Indian tribe and Indian custodian must comply with the requirements of section 224.2.
(5) Proof of Notice Under Section 366.26(n) (form JV-326) must be filed with the court before the hearing on the proposed removal.
(Subd (d) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, January 1, 2011, and January 1, 2017.)
(e) Objection to proposed removal
Each participant who receives notice under (b) may object to the proposed removal of the child and may request a hearing.
(1) A request for hearing on the proposed removal must be made on Objection to Removal (form JV-325).
(2) A request for hearing on the proposed removal must be made within five court or seven calendar days from the date of notification, whichever is longer. If service of the notification is by mail, time to request a hearing is extended by five calendar days. If service of the notification is by electronic means, time to request a hearing is extended in accordance with Code of Civil Procedure section 1010.6.
(3) The court must set a hearing as follows:
(A) The hearing must be set as soon as possible and not later than five court days after the objection is filed with the court.
(B) If the court for good cause is unable to set the matter for hearing five court days after the petition is filed, the court must set the matter for hearing as soon as possible.
(C) The matter may be set for hearing more than five court days after the objection is filed if this delay is necessary to allow participation by the child's identified Indian tribe or the child's Indian custodian.
(Subd (e) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2017.)
(f) Notice of hearing on proposed removal
After the court has ordered a hearing on a proposed removal, notice of the hearing must be as follows:
(1) The clerk must provide notice of the hearing to the agency and the participants listed in (b) above, if the court, caregiver, or child requested the hearing.
(2) The child's attorney must provide notice of the hearing to the agency and the participants listed in (b) above, if the child's attorney requested the hearing.
(3) Notice must be by personal service or by telephone. Notice by personal service must include a copy of the completed forms Notice of Intent to Remove Child (form JV-323) and Objection to Removal (form JV-325). Telephone notice must include the reasons for and against the removal, as indicated on forms JV-323 and JV-325.
(4) Proof of Notice Under 366.26(n) (form JV-326) must be filed with the court before the hearing on the proposed removal.
(Subd (f) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2017.)
(g) Burden of proof
At a hearing on an intent to remove the child, the agency intending to remove the child must prove by a preponderance of the evidence that the proposed removal is in the best interest of the child.
(h) 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.
(i) Appeal
If the court order made after a hearing on an intent to remove a child is appealed, the appeal must be brought as a petition for writ review under rules 8.454 and 8.456.
(Subd (i) amended effective January 1, 2017; previously amended effective January 1, 2007.)
Rule 5.727 amended effective January 1, 2019; adopted as rule 1463.3 effective July 1, 2006; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2008, July 1, 2010, January 1, 2011, and January 1, 2017.