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 the home of a prospective adoptive parent or a caregiver who may meet the criteria for designation as a prospective adoptive parent in section 366.26(n)(1) 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 is removed at the request of the caregiver.

(b) Participants to be noticed After removing a child from the home of a prospective adoptive parent, or from the home of a caregiver who may meet the criteria of a prospective adoptive parent in section 366.26(n)(1), because of risk of physical or emotional harm, the agency must notify the following participants of the emergency removal:

(1) The court;

(2) The caregiver, who is a prospective adoptive parent or who, on the date of service of the notice, may meet the criteria in section 366.26(n)(1);

(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;

(7) The child’s CASA program if any; and

(8) The child’s sibling’s attorney, if the change in placement of a dependent child will result in the separation of siblings currently placed together. Notice must be made in accordance with section 1010.6 of the Code of Civil Procedure section 1010.6.

(c) Form and service 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 ofRequest for Prospective Adoptive Parent Designation(form JV-321) and a blank copy ofObjection to Removal(form JV-325) to the caregiver and, if the child is 10 years of age or older, to the child.

(5) Notice to the court must be served by filingNotice of Emergency Removal(form JV-324) andProof of Notice Under 366.26(n)(form JV-326) with the court.

(6) Proof of Notice Under Section 366.26(n) (form JV-326) must be filed with the court before the hearing on the proposed removal.

(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 onObjection to Removal(form JV-325).

(2) The court must set a hearing as follows:

(A) The hearing must be set as soon as possible and not later than five court days after the petition objecting to removal is filed with the court.

(B) If the court for good cause cannot set the matter for hearing within five court days after the petition objecting to removal 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 petition objecting to removal is filed if this delay is necessary to allow participation by the child’s identified Indian tribe or the child’s Indian custodian.

(e) Notice of hearing on emergency removal After the court has ordered a hearing on an emergency 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 by personal service or by telephone. Notice by personal service must include a copy of the completedNotice 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.

(4) Proof of Notice Under Section 366.26(n) (form JV-326) must be filed with the court before the hearing on the emergency removal.

(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.

Committee Notes

(Subd (a) amended effective January 1, 2017; previously amended effective January 1, 2007, and July 1, 2010.)

(Subd (b) amended effective January 1, 2019; previously amended effective January 1, 2007, and January 1, 2017.)

(Subd (c) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2017.)

(Subd (d) amended effective January 1, 2017; previously amended effective January 1, 2007, and January 1, 2008.)

(Subd (e) amended effective January 1, 2019; previously amended effective January 1, 2007, January 1, 2008, and January 1, 2017.)