Cal. R. 5.725

As amended through July 24, 2024

Rule 5.725 - Selection of permanent plan (sections 366.24, 366.26, 727.3, 727.31)

(a) Application of rule

This rule applies to children who have been declared dependents or wards of the juvenile court.

(1) The court may not terminate the rights of only one parent under section 366.26 unless that parent is the only surviving parent; or unless the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state; or unless the other parent has relinquished custody of the child to the welfare department.

(2) Sections 360, 366.26, 727.3, and 727.31, and 728 provide the 19 exclusive authority and procedures for the juvenile court to establish a legal guardianship for a dependent child or ward of the court.

(3) For termination of the parental rights of an Indian child, the procedures in this rule and in rule 5.485 must be followed.

((Subd (a) amended effective January 1, 2021; previously amended effective January 1,1994, July 1, 2002, January 1, 2007, January 1, 2009, and January 1, 2017.).)

(b) Notice of hearing (§ 294)

In addition to the requirements stated in section 294, notice must be given to any CAS A volunteer, Indian custodian, and de facto parent on Notice of Hearing on Selection of a Permanent Plan (form JV-300).

(Subd (b) amended effective January 1, 2017; previously amended effective January 1, 1992, July 1, 1992, July 1, 1995, July 1, 2002, January 1, 2005, January 1, 2006, and January 1, 2007.)

(c) Report

Before the hearing, petitioner must prepare an assessment under section 366.2 1(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent or guardian and all counsel of record, and provide a summary of the recommendations to the present custodians of the child, to any CASA volunteer, and to the tribe of an Indian child.

(d) Conduct of hearing

At the hearing, the court must state on the record that the court has read and considered the report of petitioner, the report of any CASA volunteer, the case plan submitted for this hearing, any report submitted by the child's caregiver under section 366.21(d), and any other evidence, and must proceed under section 366.26 and as follows:

(1) In the case of an Indian child, after the agency has consulted with the tribe, when the court has determined with the concurrence of the tribe that tribal customary adoption is the appropriate permanent plan for the child, order a tribal customary adoption in accordance with section 366.24.

(2) The party claiming that termination of parental rights would be detrimental to the child has the burden of proving the detriment.

(3) If the court finds that section 366.26(c)(1)(A) or section 366.26(c)(2)(A) applies, the court must appoint the present custodian or other appropriate person to become the child's legal guardian or must order the child to remain in foster care.

(A) If the court orders that the child remain in foster care, it may order that the name and address of the foster home remain confidential.

(B) If the court finds that removal of the child from the home of a foster parent or relative who is not willing to become a legal guardian for the child would be seriously detrimental to the emotional well-being of the child, then the child must not be removed. The foster parent or relative must be willing to provide, and capable of providing, a stable and permanent home for the child and must have substantial psychological ties with the child.

(4) The court must consider the case plan submitted for this hearing and must make the required findings and determinations in rule 5.708(e).

(Subd (d) amended effective January 1, 2017; repealed and adopted as subd (c); previously amended and relettered as subd (d) effective January 1, 1992, and as subd (e) effective January 1, 2005; previously relettered as subd (d) effective January 1, 2010; previously amended effective July 1, 1994, January 1, 1999, July 1, 1999, July 1, 2002, January 1, 2006, January 1, 2007, January 1, 2009, July 1, 2010, and January 1, 2015.)

(e) Procedures - adoption

(1) The court must follow the procedures in section 366.24 or 366.26, as appropriate.

(2) An order of the court terminating parental rights, ordering adoption under section 366.26, or, in the case of an Indian child, ordering tribal customary adoption under section 366.24 is conclusive and binding on the child, the parent, and all other persons who have been served under the provisions of section 294. Once a final order of adoption has issued, the order may not be set aside or modified by the court, except as provided in section 366.26(e)(3) and (i)(3) and rules 5.538, 5.540, and 5.542 with regard to orders by a referee.

(Subd (e) amended effective January 1, 2020; amended effective January 1, 2017; adopted as subd (d); previously relettered as subd (e) effective January 1, 1992, as subd (f) effective January 1, 2005, and as subd (e) effective January 1, 2010; previously amended effective July 1, 1992, January 1, 1995, July 1, 2002, January 1, 2006, January 1, 2007, July 1, 2010, and January 1, 2015)

(f) Purpose of termination of parental rights

The purpose of termination of parental rights is to free the child for adoption. Therefore, the court must not terminate the rights of only one parent unless that parent is the only surviving parent, or the rights of the other parent have been terminated by a California court of competent jurisdiction or by a court of competent jurisdiction of another state under the statutes of that state, or the other parent has relinquished custody of the child to the county welfare department. The rights of all parents-whether natural, presumed, biological, alleged, or unknown- must be terminated in order to free the child for adoption.

(Subd (g) amended effective January 1, 2015; adopted as subd (g) effective July 1, 1997; previously amended and relettered as subd (h) effective January 1, 2005; previously amended effective July 1, 2002; previously relettered as subd (g) effective January 1, 2010..)

(g) Advisement of appeal rights

The court must advise all parties of their appeal rights as provided in rule 5.585 and section 366.26 (1).

((Subd (g) relettered effective January 1, 2021; repealed and adopted as subd (f); previously relettered as subd (g) effective January 1, 1992; amended and relettered as subd (h) effective July 1, 1997; relettered as subd (i) effective January 1, 2005; relettered as subd (h) effective January 1, 2010; previously amended effective July 1, 2002, January 1, 2006, and January 1, 2007.).)

Cal. R. Ct. 5.725

Rule 5.725 amended effective 1/1/2021; Rule 5.725amended effective 1/1/2020; amended effective 1/1/2017; repealed and adopted as rule 1463 effective 1/1/1991; previously amended and renumbered effective 1/1/2007; previously amended effective 1/1/1992,7/1/1992,1/1/1994,7/1/1994,1/1/1995,7/1/1995,7/1/1997,1/1/1999,7/1/1999,7/1/2002,1/1/2005,1/1/2006,1/1/2009,1/1/2010,7/1/2010, and1/1/2015.