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2014 California Rules of Court

Rule 8.452. Writ petition to review order setting hearing under Welfare and Institutions Code section 366.26

(a) Petition

(1)The petition must be liberally construed and must include:

(A)The identities of the parties;

(B)The date on which the superior court made the order setting the hearing;

(C)The date on which the hearing is scheduled to be held;

(D)A summary of the grounds of the petition; and

(E)The relief requested.

(2)The petition must be accompanied by a memorandum.

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

(b) Contents of the memorandum

(1)The memorandum must provide a summary of the significant facts, limited to matters in the record.

(2)The memorandum must state each point under a separate heading or subheading summarizing the point and support each point by argument and citation of authority.

(3)The memorandum must support any reference to a matter in the record by a citation to the record. The memorandum should explain the significance of any cited portion of the record and note any disputed aspects of the record.

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

(c) Serving and filing the petition and response

(1)The petition must be served and filed within 10 days after the record is filed in the reviewing court. The petitioner must serve a copy of the petition on:

(A)Each attorney of record;

(B)Any unrepresented 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 child's Court Appointed Special Advocate (CASA) volunteer;

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

(F)If the court sent the notice of intent to file the writ petition to an Indian custodian, tribe, or Bureau of Indian Affairs, then to that Indian custodian, tribe of the child, or the Bureau of Indian Affairs as required under Welfare and Institutions Code section 224.2.

(2)Any response must be served on each of the people and entities listed above and filed:

(A)Within 10 days-or, if the petition was served by mail, within 15 days-after the petition is filed; or

(B)Within 10 days after a respondent receives a request from the reviewing court for a response, unless the court specifies a shorter time.

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

(d) Order to show cause or alternative writ

If the court intends to determine the petition on the merits, it must issue an order to show cause or alternative writ.

(Subd (d) relettered effective July 1, 2010; adopted as subd (d) effective January 1, 2005; previously relettered as subd (e) effective January 1, 2006.)

(e) Augmenting or correcting the record in the reviewing court

(1)Except as provided in (2) and (3), rule 8.410 governs any augmentation or correction of the record.

(2)The petitioner must serve and file any request for augmentation or correction within 5 days-or, if the record exceeds 300 pages, within 7 days; or, if the record exceeds 600 pages, within 10 days-after receiving the record. A respondent must serve and file any such request within 5 days after the petition is filed or an order to show cause has issued, whichever is later.

(3)A party must attach to its motion a copy, if available, of any document or transcript that the party wants added to the record. The pages of the attachment must be consecutively numbered, beginning with the number one. If the reviewing court grants the motion, it may augment the record with the copy.

(4)If the party cannot attach a copy of the matter to be added, the party must identify it as required under rules 8.122 and 8.130.

(5)An order augmenting or correcting the record may grant no more than 15 days for compliance. The clerk and the reporter must give the order the highest priority.

(6)The clerk must certify and send any supplemental transcripts as required by rule 8.450(h). If the augmentation or correction is ordered, the time to file any petition or response is extended by the number of additional days granted to augment or correct the record.

(Subd (e) amended and relettered effective July 1, 2010; adopted as subd (e) effective January 1, 2005; previously relettered as subd (f) effective January 1, 2006; previously amended effective January 1, 2007.)

(f) Stay

The reviewing court may stay the hearing set under Welfare and Institutions Code section 366.26, but must require an exceptional showing of good cause.

(Subd (f) relettered effective July 1, 2010; adopted as subd (f) effective January 1, 2005; previously relettered as subd (g) effective January 1, 2006.)

(g) Oral argument

(1)The reviewing court must hear oral argument within 30 days after the response is filed or due to be filed, unless the court extends the time for good cause or counsel waive argument.

(2)If argument is waived, the cause is deemed submitted not later than 30 days after the response is filed or due to be filed.

(Subd (g) relettered effective July 1, 2010; adopted as subd (g) effective January 1, 2005; previously relettered as subd (h) effective January 1, 2006.)

(h) Decision

(1)Absent exceptional circumstances, the reviewing court must decide the petition on the merits by written opinion.

(2)The reviewing court clerk must promptly notify the parties of any decision and must promptly send a certified copy of any writ or order to the court named as respondent.

(3)If the writ or order stays or prohibits proceedings set to occur within 7 days or requires action within 7 days-or in any other urgent situation-the reviewing court clerk must make a reasonable effort to notify the clerk of the respondent court by telephone. The clerk of the respondent court must then notify the judge or officer most directly concerned.

(4)The reviewing court clerk need not give telephonic notice of the summary denial of a writ, unless a stay previously issued will be dissolved.

(Subd (h) relettered effective July 1, 2010; adopted as subd (h) effective January 1, 2005; relettered as subd (i) effective January 1, 2006; previously amended effective January 1, 2007.)

(i) Filing, modification, finality of decision, and remittitur

Rule 8.490 governs the filing, modification, finality of decisions, and remittitur in writ proceedings under this rule.

(Subd (i) adopted effective July 1, 2010.)

Rule 8.452 amended effective July 1, 2010; adopted as rule 38.1 effective January 1, 2005; previously amended effective January 1, 2006; previously amended and renumbered effective January 1, 2007.

Advisory Committee Comment

Subdivision (d). Subdivision (d) tracks the second sentence of former rule 39.1B(l). (But see Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1471-1476.)

Subdivision (h). Subdivision (h)(1) tracks former rule 39.1B(o). (But see Maribel M. v. Superior Court (1998) 61 Cal.App.4th 1469, 1471-1476.)

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