|     printer icon  Printer-friendly version of this page

2014 California Rules of Court

Rule 8.450. Notice of intent to file writ petition to review order setting hearing under Welfare and Institutions Code section 366.26

(a) Application

Rules 8.450-8.452 and 8.490 govern writ petitions to review orders setting a hearing under Welfare and Institutions Code section 366.26.

(Subd (a) amended effective July 1, 2010; previously amended effective January 1, 2006, July 1, 2006, January 1, 2007, and January 1, 2009.)

(b) Purpose

Rules 8.450-8.452 are intended to encourage and assist the reviewing courts to determine on their merits all writ petitions filed under these rules within the 120-day period for holding a hearing under Welfare and Institutions Code section 366.26.

(Subd (b) amended effective January 1, 2007.)

(c) Who may file

The petitioner's trial counsel, or, in the absence of trial counsel, the party, is responsible for filing any notice of intent and writ petition under rules 8.450-8.452. Trial counsel is encouraged to seek assistance from or consult with attorneys experienced in writ procedure.

(Subd (c) amended effective January 1, 2008; previously amended effective January 1, 2007.)

(d) Extensions of time

The superior court may not extend any time period prescribed by rules 8.450-8.452. The reviewing court may extend any time period but must require an exceptional showing of good cause.

(Subd (d) amended effective January 1, 2013; previously amended effective January 1, 2007, and July 1, 2010.)

(e) Notice of intent

(1)A party seeking writ review under rules 8.450-8.452 must file in the superior court a notice of intent to file a writ petition and a request for the record.

(2)The notice must include all known dates of the hearing that resulted in the order under review.

(3)The notice must be authorized by the party intending to file the petition and must be signed by that party or by the attorney of record for that party.

(4)The date of the order setting the hearing is the date on which the court states the order on the record orally, or issues an order in writing, whichever occurs first. The notice of intent must be filed according to the following timeline requirements:

(A)If the party was present at the hearing when the court ordered a hearing under Welfare and Institutions Code section 366.26, the notice of intent must be filed within 7 days after the date of the order setting the hearing.

(B)If the party was notified of the order setting the hearing only by mail, the notice of intent must be filed within 12 days after the date the clerk mailed the notification.

(C)If the party was notified of the order setting the hearing by mail, and the notice was mailed to an address outside California but within the United States, the notice of intent must be filed within 17 days after the date the clerk mailed the notification.

(D)If the party was notified of the order setting the hearing by mail, and the notice was mailed to an address outside the United States, the notice of intent must be filed within 27 days after the date the clerk mailed the notification.

(E)If the order was made by a referee not acting as a temporary judge, the party has an additional 10 days to file the notice of intent as provided in rule 5.540(c).

(Subd (e) amended effective July 1, 2010; previously amended effective January 1, 2007, and July 1, 2010.)

(f) Premature or late notice of intent to file writ petition

(1)A notice of intent to file a writ petition under Welfare and Institutions Code section 366.26 is premature if filed before an order setting a hearing under Welfare and Institutions Code section 366.26 has been made.

(2)If a notice of intent is premature or late, the superior court clerk must promptly:

(A)Mark the notice of intent "Received [date] but not filed;"

(B)Return the marked notice of intent to the party with a notice stating that:

(i)The notice of intent was not filed either because it is premature, as no order setting a hearing under Welfare and Institutions Code section 366.26 has been made, or because it is late; and

(ii)The party should contact his or her attorney as soon as possible to discuss this notice, because the time available to take appropriate steps to protect the party's interests may be short; and

(C)Send a copy of the marked notice of intent and clerk's notice to the party's counsel of record, if applicable.

(Subd (f) adopted effective January 1, 2013.)

(g) Sending the notice of intent

(1)When the notice of intent is filed, the superior court clerk must immediately mail a copy of the notice to:

(A)The attorney of record for each party;

(B)Each party, including the child if the child is 10 years of age or older;

(C)Any known sibling of the child who is the subject of the hearing if that sibling either is the subject of a dependency proceeding or has been adjudged to be a dependent child of the juvenile court as follows:

(i)If the sibling is under 10 years of age, on the sibling's attorney;

(ii)If the sibling is 10 years of age or over, on the sibling and the sibling's attorney.

(D)The mother, the father, and any presumed and alleged parents;

(E)The child's legal guardian, if any;

(F)Any person currently awarded by the juvenile court the status of the child's de facto parent;

(G)The probation officer or social worker;

(H)Any Court Appointed Special Advocate (CASA) volunteer;

(I)The grandparents of the child, if their address is known and if the parents' whereabouts are unknown; and

(J)If the court knows or has reason to know that an Indian child is involved, the Indian custodian, if any, and tribe of the child or the Bureau of Indian Affairs as required under Welfare and Institutions Code section 224.2.

(2)The clerk must promptly send by first-class mail or fax a copy of the notice of intent and a list of those to whom the notice of intent was sent to:

(A)The reviewing court; and

(B)The petitioner if the clerk mailed the notice of intent to the Indian custodian, tribe of the child, or the Bureau of Indian Affairs.

(3)If the party was notified of the order setting the hearing only by mail, the clerk must include the date that the notification was mailed.

(Subd (g) relettered effective January 1, 2013; adopted as subd (f); previously amended effective January 1, 2006, July 1, 2006, January 1, 2007, and July 1, 2010.)

(h) Preparing the record

When the notice of intent is filed, the superior court clerk must:

(1)Immediately notify each court reporter by telephone and in writing to prepare a reporter's transcript of the oral proceedings at each session of the hearing that resulted in the order under review and deliver the transcript to the clerk within 12 calendar days after the notice of intent is filed; and

(2)Within 20 days after the notice of intent is filed, prepare a clerk's transcript that includes the notice of intent, proof of service, and all items listed in rule 8.407(a).

(Subd (h) amended and relettered effective January 1, 2013; adopted as subd (g); previously amended effective January 1, 2006, January 1, 2007, January 1, 2008, and July 1, 2010.)

(i) Sending the record

When the transcripts are certified as correct, the superior court clerk must immediately send:

(1)The original transcripts to the reviewing court by the most expeditious method, noting the sending date on each original, and

(2)One copy of each transcript to each counsel of record and any unrepresented party by any means as fast as United States Postal Service express mail.

(Subd (i) relettered effective January 1, 2013; adopted as subd (h); previously amended effective January 1, 2007.)

(j) Reviewing court clerk's duties

(1)The reviewing court clerk must immediately lodge the notice of intent. When the notice is lodged, the reviewing court has jurisdiction of the writ proceedings.

(2)When the record is filed in the reviewing court, that court's clerk must immediately notify the parties, stating the date on which the 10-day period for filing the writ petition under rule 8.452(c)(1) will expire.

(Subd (j) relettered effective January 1, 2013; adopted as subd (i); previously amended effective January 1, 2007.)

Rule 8.450 amended effective January 1, 2013; adopted as rule 38 effective January 1, 2005; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2006, July 1, 2006, January 1, 2008, January 1, 2009, and July 1, 2010.

Advisory Committee Comment

Subdivision (d). The case law generally recognizes that the reviewing courts may grant extensions of time under these rules for exceptional good cause. (See, e.g., Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, and In re Cathina W. (1998) 68 Cal.App.4th 716 [recognizing that a late notice of intent may be filed on a showing of exceptional circumstances not under the petitioner's control].) It may constitute exceptional good cause for an extension of the time to file a notice of intent if a premature notice of intent is returned to a party shortly before the issuance of an order setting a hearing under Welfare and Institutions Code section 366.26.

Subdivision (e)(4). See rule 8.25(b)(5) for provisions concerning the timeliness of documents mailed by inmates or patients from custodial institutions.

Subdivision (f)(1). A party who prematurely attempts to file a notice of intent to file a writ petition under Welfare and Institutions Code section 366.26 is not precluded from later filing such a notice after the issuance of an order setting a hearing under Welfare and Institutions Code section 366.26.

[ Back to Top ]