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2014 California Rules of Court

Rule 8.454. Notice of intent to file writ petition under Welfare and Institutions Code section 366.28 to review order designating specific placement of a dependent child after termination of parental rights

(a) Application

Rules 8.454-8.456 and 8.490 govern writ petitions to review placement orders following termination of parental rights entered on or after January 1, 2005. "Posttermination placement order" as used in this rule and rule 8.456 refers to orders following termination of parental rights.

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

(b) Purpose

The purpose of this rule is to facilitate and implement Welfare and Institutions Code section 366.28. Delays caused by appeals from court orders designating the specific placement of a dependent child after parental rights have been terminated may cause a substantial detriment to the child.

(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 8.454-8.456. 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 8.454-8.456. The reviewing court may extend any time period, but must require an exceptional showing of good cause.

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

(e) Notice of intent

(1)A party seeking writ review under rules 8.454-8.456 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 signed by the party or by the attorney of record for that party.

(4)The notice must be served and filed within 7 days after the date of the posttermination placement order or, if the order was made by a referee not acting as a temporary judge, within 7 days after the referee's order becomes final under rule 5.540(c). The date of the posttermination placement order is the date on which the court states the order on the record orally or in writing, whichever first occurs.

(5)If the party was notified of the posttermination placement order only by mail, the notice of intent must be filed within 12 days after the date that the clerk mailed the notification.

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

(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 366.28 is premature if filed before a date for a posttermination placement order has been made. The reviewing court may treat the notice as filed immediately after the posttermination order has been made.

(2)The superior court clerk must mark a late notice of intent to file a writ petition under section 366.28 "Received [date] but not filed," notify the party that the notice was not filed because it was late, and send a copy of the marked notice to the party's counsel of record, if applicable.

(Subd (f) amended effective July 1, 2013; adopted effective January 1, 2006; previously amended effective January 1, 2007.)

(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)Any prospective adoptive parent;

(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)The child's Court Appointed Special Advocate (CASA) volunteer, if any; and

(I)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 a copy of 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 post placement order only by mail, the clerk must include the date that the notification was mailed.

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

(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 to 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 effective July 1, 2013; adopted as subd (g) effective January 1, 2005; previously amended and relettered effective January 1, 2006; previously amended effective July 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 and unrepresented custodian of the dependent child by any means as fast as United States Postal Service express mail.

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

(j) Reviewing court clerk's duties

(1)The reviewing court clerk must promptly lodge the notice of intent. When the notice is lodged, the reviewing court has jurisdiction over 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 8.456(c)(1) will expire.

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

Rule 8.454 amended effective July 1, 2013; adopted as rule 38.2 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 (f)(2). See rule 8.25(b)(5) for provisions concerning the timeliness of documents mailed by inmates or patients from custodial institutions.

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