|     printer icon  Printer-friendly version of this page

2014 California Rules of Court

Rule 5.727. Proposed removal (§ 366.26(n))

(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 under rule 5.726(b) or from a caregiver who may meet the criteria for designation as a prospective adoptive parent under rule 5.726(b). This rule does not apply if the caregiver requests the child's removal.

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

(b) Participants to be served with notice

Before removing a child from the home of a prospective adoptive parent under rule 5.726(b) or from the home of a caregiver who may meet the criteria of a prospective adoptive parent under rule 5.726(b), 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 rule 5.726(b);

(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; and

(7)The child's CASA program if any.

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

(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.

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

(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, 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)Notice to the child's identified Indian tribe and Indian custodian must be given under rule 5.481.

(4)Proof of service of the notice on Proof of Notice (form JV-326) must be filed with the court.

(Subd (d) amended effective January 1, 2011; previously amended effective January 1, 2007, and January 1, 2008.)

(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 date of notification, whichever is longer. If service is by mail, time to respond is extended by five calendar days.

(3)The court must order 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, 2008; previously amended effective January 1, 2007.)

(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 either by personal service or by telephone. Notice by personal service must include a copy of the 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 on Proof of Notice (form JV-326) must be filed with the court before the hearing on the proposed removal.

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

(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 made under rules 8.454 and 8.456.

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

Rule 5.727 amended effective January 1, 2011; adopted as rule 1463.3 effective July 1, 2006; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2008, and July 1, 2010.

[ Back to Top ]