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

After parental rights are terminated — or modified, in a tribal customary adoption — a child living with a prospective adoptive parent cannot simply be moved. This rule applies to a removal by the Department of Social Services or a licensed adoption agency, whether the caregiver is a designated prospective adoptive parent or merely someone who may meet the criteria. It does not apply where the caregiver is the one asking for the child to go.

Before removing the child, and as soon as possible after the decision is made, the agency notifies the court, the caregiver, the child’s attorney, the child if 10 or older, the child’s identified tribe and Indian custodian, the CASA program, and — where the move would separate siblings currently placed together — the sibling’s attorney. Notice goes on form JV-323, and everyone but the court also gets blank copies of the objection form JV-325 and the designation request form JV-321. That pairing matters: it tells a caregiver who has not yet been designated that they can seek designation and object at the same time.

Service is by first-class mail, electronic service, or personally. Mail extends the response time by five calendar days; electronic service extends it as the Code of Civil Procedure provides. Notice to an Indian child’s tribe and Indian custodian follows the ICWA notice statute, and proof of notice on form JV-326 is filed before the hearing.

Anyone noticed may object and request a hearing, on form JV-325, within five court days or seven calendar days of notification — whichever is longer — with the same extensions for mail and electronic service. The court then sets the hearing as soon as possible and no later than five court days after the objection is filed, later only for good cause or to allow the tribe or Indian custodian to take part.

Notice of that hearing is given by the clerk or by the child’s attorney, depending on who asked for it, and must be personal or by telephone. Personal service carries copies of the completed notice and objection forms; telephone notice must convey the reasons for and against the removal as those forms state them.

At the hearing the agency carries the burden: it must prove by a preponderance of the evidence that the proposed removal is in the child’s best interest. And an appeal of the resulting order is not an ordinary appeal — it must be brought as a petition for writ review.