|     printer icon  Printer-friendly version of this page

2014 California Rules of Court

Rule 5.728. Emergency 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) when the DSS or the licensed adoption agency has determined a removal must occur immediately due to a risk of physical or emotional harm. This rule does not apply if the child's removal is carried out at the request of the caregiver.

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

(b) Participants to be noticed

After 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), because of immediate risk of physical or emotional harm, the agency must notify the following participants of the emergency 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

Notice of Emergency Removal (form JV-324) must be used to provide notice of an emergency removal, as described below.

(1)The agency must provide notice of the emergency removal as soon as possible but no later than two court days after the removal.

(2)Notice must be either by telephone or by personal service of the form.

(3)Telephone notice must include the reasons for removal as indicated on the form, and notice of the right to object to the removal.

(4)Whenever possible, the agency, at the time of the removal, must give a blank copy of the form to the caregiver and, if the child is 10 years of age or older, the child.

(5)Notice to the court must be by filing of the form with the court. The proof of notice included on the form must be completed when the form is filed with the court.

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

(d) Objection to emergency removal

Each participant who receives notice under (b) may object to the removal of the child and may request a hearing.

(1)A request for hearing on the emergency removal must be made on Objection to Removal (form JV-325).

(2)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 within 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 (d) amended effective January 1, 2008; previously amended effective January 1, 2007.)

(e) Notice of emergency removal hearing

After the court has ordered a hearing on an emergency removal, notice of the hearing must be as follows:

(1)Notice must be either by personal service or by telephone. Notice by personal service must include a copy of Notice of Emergency Removal (form JV-324). Telephone notice must include the reasons for and against the removal, as indicated on forms JV-324 and JV-325.

(2)The clerk must provide notice of the hearing to the agency and the participants listed in (b) above, if the court, the caregiver, or the child requested the hearing.

(3)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.

(4)Proof of notice on Proof of Notice (form JV-326) must be filed with the court before the hearing on the emergency removal.

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

(f) Burden of proof

At a hearing on an emergency removal, the agency that removed the child must prove by a preponderance of the evidence that the removal is in the best interest of the child.

(g) 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 and program may have access to this information.

Rule 5.728 amended effective July 1, 2010; adopted as rule 1463.5 effective July 1, 2006; previously amended and renumbered effective January 1, 2007; previously amended effective January 1, 2008.

[ Back to Top ]