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local juvenile rule 2

JUVENILE RULE 2: RULES RELATING TO JUVENILE DEPENDENCY PROCEEDINGS

A. DE FACTO PARENTS/RELATIONS/INTERESTED PERSONS

(1) De Facto Parents

a. Upon a sufficient showing, the Court may recognize the child's present or previous custodians as de facto parents and grant standing to participate as parties in dispositional hearings and any hearings thereafter at which the status of the dependent child is at issue. The person seeking de facto parent status must file a noticed motion before the Court setting out the reasons in support of the motion, unless the Court, for good cause, permits an oral motion to be made. (Judicial Council Forms JV-295-298 )

b. The de facto parent has the rights outlined in CRC 5.534(a).

B. MOTION TO CHALLENGE LEGAL SUFFICIENCY OF PETITION

(1) In any Dependency proceeding, the Court may entertain a pre-hearing challenge to the petition's sufficiency by a motion akin to a demurrer. Such a motion may be made in writing or orally, but must be made as early in the proceedings as possible.

(2) The Court may rule on the motion at the hearing at which it is made, or may continue the hearing on the motion to another date in order to receive points and authorities from counsel.

(3) If the Court sustains the motion, the Court may grant leave to amend the pleading in the petition upon any terms as may be just and may fix the time within which the amendment or amended petition must be filed within the statutory time for the hearing on jurisdiction. (CCP 472(a)).

C. PRESENTATION OF EVIDENCE

(1) Offers of Proof

The party presenting evidence may utilize an offer of proof with regard to any witness. Other parties will have an opportunity to examine the witness after any offer of proof is made.

D. REPRESENTATION OF PARTIES (W & I CODE SECTIONS 317, 317.6; CRC 5.660)

(1) Experience, Training and Education of Attorneys

a. General Competency Requirement

All Court-appointed attorneys appearing in Juvenile Dependency proceedings must meet the minimum standards of competence set forth in these Rules.

b. Standards of Education and Training

i. Each Court-appointed attorney appearing in a Dependency matter before the Juvenile Court must complete the following minimum training and educational requirements. The attorney must have either:

1. Participated in at least thirty six (36) hours of training and education in Juvenile Dependency law and practice, which training includes comprehensive information on W & I Code Sections 202, 213.5, 214, 241.1, 281.5, 300 et seq.; Family Code Sections 7900 et seq. (Interstate Compact), and 7600 et seq. (Uniform Parentage Act); Education Code Sections 56000 et seq. (Special Education Programs); 8 United States Code (USC) Section 1101 (Special Immigrant Status for Undocumented Dependent Children), 25 USC Sections 1901 et seq. (Indian Child Welfare Act), 28 USC Section 1738 (Parental Kidnapping Prevention Act), and 42 USC Section 670 et seq. (Adoption and Safe Families Act); the California Rules of Court; the rules of evidence as set forth in the California Evidence Code; and the applicable case law as well as practical training on Judicial Council forms, motions, writs and mediation, family group conferencing, team decision making, the Family to Family initiative, domestic violence projects (the Greenbook Project, for example), child development, child abuse and neglect, family reunification and preservation, restraining orders, rights of de facto parents, reasonable efforts, or

2. At least six (6) months of experience within the last twelve (12) months in Dependency proceedings in another county in which the attorney has had primary responsibility for representation of his or her clients in said proceedings. In determining whether the attorney has demonstrated competence, the Court will consider whether the attorney's performance has substantially complied with the requirements of these Rules.

ii. Each Court-appointed attorney who practices before the Juvenile Dependency Court must complete within every one (1) year period at least twelve (12) hours of continuing education related to Dependency proceedings. Evidence of completion of the required number of hours of training or education must be retained by the attorney and may include a copy of a certificate of attendance issued by a California MCLE provider or a certificate of attendance issued by a professional organization which provides training and/or education for its members, whether or not it is a MCLE provider. Attendance at a Court sponsored or approved program will also fulfill this requirement.

iii. The attorney's continuing training or education must be in the areas set forth in subdivision i of this Rule (immediately above).

iv. To enhance the practice of law before the Juvenile Dependency Court of this County, and to recognize the unique qualities of Juvenile Dependency law, a standing committee of the Juvenile Court will review and recommend modifications to these Rules in the areas of training, education, and standards of representation.

c. Standards of Representation

All Court-appointed attorneys appearing in Dependency proceedings must meet the following minimum standards of representation:

i. Attorneys are expected to meet regularly with clients, including clients who are children, to contact social workers and other professionals associated with the client's case, to work with other counsel and the Court to resolve disputed aspects of a case without hearing, and to adhere to the mandated time lines.

ii. If the client is a child, the attorney or attorney's agent should have contact with the client prior to each hearing. The attorney or attorney's agent must interview all children four (4) years of age or older in person unless it is impracticable. Whenever possible, the child must be interviewed at the child's placement. The attorney or attorney's agent should also interview the child's caretaker, particularly when the child is under four (4) years of age.

iii. If the client is not the child, the attorney or attorney's agent must interview the client at least once prior to the jurisdictional hearing unless that client is unavailable. Thereafter, the attorney or the attorney's agent must contact the client at least once prior to each hearing unless that client is unavailable.

d. Pursuant to W & I Code Section 903.l, a parent/guardian or person responsible for support of a child is liable for the costs of appointed counsel for a parent/guardian and child in Dependency Court. For each matter before the Court, the parent/guardian must fill out the Advisement and Acknowledgement re Right to Counsel in Juvenile form (Local Form JV-2022 ). If applicable, the parent/guardian must also fill out the Advisement and Waiver of Right to Counsel (Local Form JV-2023 ). At a financial hearing, the judicial officer will assess the repayment amount after a review of the Financial Declaration/Subsequent Financial Declaration (Local Form JV-2020 ). An Order on Assessment and Repayment of Attorney Fees (Local Form JV-2021 ) will be prepared and served on the responsible party and appointed counsel at the conclusion of a financial hearing.

(2) Complaints

a. Any party to a Juvenile proceeding may lodge a written complaint with the Court concerning the performance of his/her appointed attorney in a Juvenile Court proceeding as follows:

i. Complaints or questions will initially be referred to that attorney's supervisor within the agency, association, or law firm appointed to represent the client.

ii. If the issue remains unresolved or if there is no designated agency, association, or law firm, the party may submit a written complaint to the Court in which the matter is pending. The Court will, within ten (10) days, conduct its own review of the complaint or question. That review may include a hearing in chambers. The Court may take any appropriate action required, including relieving counsel and appointing new counsel and/or holding a formal hearing on the matter.

b. In the case of a complaint concerning the performance of an attorney appointed to represent a child, the complaint may be lodged by the child or on the child's behalf by the social worker, a caretaker, a relative, a foster parent, or a child advocate.

(3) Informing the Court of the Interest of the Child

At any time during the pendency of a Dependency proceeding, any interested person may notify the Court that the child who is the subject of the proceeding may have an interest or right that needs to be protected or pursued.

a. This may be done by filing a petition to modify a previous order, under W & I Code Section 388 (Judicial Council Form JV-180 ). The petition must set forth the nature of the interest or right to be protected and the action on the child's behalf that is being requested.

b. If counsel for the child becomes aware that the child may have a right or interest that needs to be protected or pursued in another judicial or administrative forum, counsel for the child must notify the Court in the manner indicated above as soon as it is reasonably possible to do so.

c. The Court, upon receiving such notification, may make any orders that are appropriate to protect the rights of the child, including, but not limited to,:

i. Determining if the child's attorney is willing and able to pursue the matter on the child's behalf. If the Court finds that the child's attorney is willing and qualified to initiate and pursue appropriate action, it may make any orders necessary to facilitate this representation;

ii. Appointing counsel for the child specializing in the practice before the agency or Court in which the proceeding will occur;

iii. Appointing a guardian ad litem for the child to initiate or pursue the proposed action;

iv. Joining an administrative agency to the Juvenile Court proceedings pursuant to W & I Code Section 362; and

v. Taking any other action to protect the interests and rights of the child.

d. The person filing the W & I Code Section 388 petition or an Application for Order and Order re Interest of the Child must serve a copy of the notice on each of the parties or their attorneys, the child advocate, and others as prescribed by law. Notice may be dispensed with upon Order of the Court.

E. ACCESS TO YOUTH PETITIONED PURSUANT TO WELFARE AND INSTITUTIONS SECTION 300

(1) No party or attorney (other than the social worker) in a Dependency proceeding may interview the minor about the events relating to the allegations in the petition(s) on file without permission of the minor’s attorney or Court order.

(2) No party or attorney in a Dependency proceeding may cause the minor to undergo a physical, medical, or mental health examination or evaluation except as authorized by law.

(3) The Court will make the selection of the person to perform any such examination. Each party has the right to notice and to be heard on the person to be selected.

(4) Interviewing Minors Who Are Alleged Victims of Child Abuse

All Dependency investigators in the Department of Family and Children's Services, all attorneys representing parties in a Dependency case in which child abuse has been alleged, and other participants in the case, including a child advocate, must attempt to minimize the number of interviews of the minor relating to the events surrounding the alleged abuse. To this end, anyone wishing to learn facts about the alleged incident must first review the comprehensive interview taken by the investigating officer.

(5) Presence of Youth in Court

a. All youth are entitled and encouraged to attend Court hearings. Every youth four (4) years or older must be told of his or her right to attend Court hearings by the investigating/supervising social worker and attorney for the youth.

b. Appearances may be excused for any of the following reasons:

i. the youth’s attorney waives the youth’s appearance;

ii. the youth chooses not to attend;

iii. the youth is excused by the Court; or

iv. the youth is hospitalized or physically unable to attend.

c. If the youth is present, the judicial officer hearing the case may view and speak with the youth.

(6) Notice Regarding Change in Placement

In order to ensure that proper notice is received by attorneys for parents and children of any change in a child's placement after the original dispositional hearing, the following must occur:

a. In non-emergency situations, DFCS must give notice at least five (5) working days prior to the change in placement.

b. Prior to removal of a child from one county to another, DFCS must provide notice of at least fourteen (14) calendar days unless emergency circumstances prevent such notice (Judicial Council Form JV-555 ). Those objecting to the out-of-county placement must file an Objection to Out-of-County Placement and Notice of Hearing (Judicial Council Form JV-556 ).

c. In emergency circumstances, DFCS must give notice immediately following the child's change in placement.

d. Notice may be given in writing or orally and by telephone.

F. CREATION OF A FAMILY COURT ORDER IN JUVENILE COURT

(1) Petition for Dismissal

Whenever any interested party believes that Juvenile Dependency Court intervention on behalf of a child is no longer necessary, application may be made to the Dependency Court pursuant to W & I Code Section 388 or at any regularly scheduled hearing to have the case dismissed.

(2) Juvenile Dependency Court Custody Order

a. If the Juvenile Court determines that jurisdiction of the Dependency Court is no longer necessary for the protection of the child, the Court may issue a custody order on Judicial Council Form JV-200 consistent with the needs of the child and thereafter dismiss the Juvenile Dependency petition and case (W & I Code Sections 361.2, 362.4). Any party may object to the proposed dismissal and be heard on the issues.

b. Requests to modify the Juvenile custody order within one (1) year of the dismissal of the Juvenile petition and the issuance of the custody order on Judicial Council Form JV-200 , where possible, must be returned to the judge who presided over the Juvenile Dependency case for hearing to ensure there is a significant change in circumstances to warrant modification of that order as set forth in W & I Code Section 302(d). The Juvenile Dependency judge will sit as a Family Court judge for purposes of hearing the motions regarding modification of custody and/or visitation. Thereafter, any future litigation relating to the custody, visitation, and control of the child will be heard in the Family Court.

(3) Maintenance of Juvenile Custody Orders (Judicial Council Form JV-200) in Court Files

a. Juvenile Court

The original Court Juvenile Custody Order (Judicial Council Form JV-200 ) will be filed in the Family Court and endorsed copies will be filed in the Juvenile Dependency Court file. A copy of the endorsed-filed Order will be mailed to the attorneys and parties.

b. Superior Court

If no Court file exists in the Family Court or other Superior Court division or in any other jurisdiction, the Court Clerk will create a file under the names of the child's parents. The file will contain the original Juvenile Court Order (Judicial Council Form JV-200 ). There will be no filing fee. (W & I Code Section 362.4).

G. GUARDIANS AD LITEM

(1) General Provisions

a. The Court may appoint a guardian ad litem to represent any incompetent parent, guardian, or non-minor dependent before the Juvenile Court pursuant to a Dependency petition (W & I Section 300 et seq.). The determination of incompetency may be made by the Court at any time in the proceeding based upon evidence received from any interested party.

b. The parent or guardian must be present in Court for the informal closed proceeding, and the Court will explain the proceeding to the parent or guardian in plain language. If the Court finds by a preponderance of the evidence that the parent or guardian does not understand the nature of consequences of the proceeding, or that the parent or guardian cannot assist their attorney in the preparation of their case, then the Court may appoint a guardian ad litem.

c. Where the Dependency Court has appointed a guardian ad litem to protect the interest of the minor under Rule 2(D)(3)(c)(iii), the guardian ad litem's role is to protect the rights of the minor. He or she has the right to control the litigation on behalf of the minor. Among the guardian's powers are the right to compromise or settle the action, to control the procedural steps incident to the conduct of the litigation, and, with the approval of the Court, to make stipulations or concessions that are binding on the minor, provided they are not prejudicial to the minor’s interests. The guardian ad litem's role is more than an attorney's but less than a party's. The guardian ad litem may make tactical and even fundamental decisions affecting the litigation, but always with the interest of the minor in mind. However, the guardian may not compromise fundamental rights, including the right to trial, without some countervailing and significant benefit.

(2) Notice to Guardians ad Litem, Access to Records, Right to Appear

a. The guardian ad litem must be given the same notice as any party in all proceedings.

b. The guardian ad litem has the same access to all records relating to the case as would any party.

c. The guardian ad litem has the right to appear at all hearings.

H. PARENTAL VISITATION

(1) Visitation Before Detention Hearing

a. Any minor taken into temporary custody must have supervised visitation with one or both parents or guardians before the detention hearing takes place unless the social worker has a reasonable belief that the minor or his or her temporary custodian would be endangered by the disclosure of the minor’s exact whereabouts or that the disclosure would cause the custody of the minor to be disturbed (W & I Section 308).

b. Whenever a minor is taken into temporary custody, the social worker must inform the parent or guardian of the minor’s condition and his or her general location and offer supervised visitation pursuant to subdivision a (immediately above).

Immediately after a minor is taken into temporary custody, the social worker must ensure that the minor has regular telephone contact with his or her parent pursuant to W & I Code Section 308, unless that contact would be detrimental to the child.

d. If the social worker fails to follow the procedures listed in subdivision a (immediately above), he or she must note the reasons therefore in the papers prepared for the detention hearing.

(2) Visitation After Detention Hearing

a. The determination of the right to visitation, the length of any visitation, whether any visitation will be supervised, and the frequency of visitation are a part of the judicial function and must be made by the Court. The implementation and administration of the Court's order, however, may be delegated to the social worker. These ministerial tasks that may be delegated to the social worker include the time, place, and manner of visitation. The Court may also delegate discretion to the social worker to increase the frequency and duration of the visits, and to permit unsupervised visits (sometimes with the explicit condition that the attorney for the minor be given notice). The Court's order cannot, however, delegate to the social worker, the child's therapist, or other person unlimited discretion to determine whether visitation must occur.

b. Absent exigent circumstances indicating detriment to the child, only the Court may reduce visits for a parent. Juvenile Court visitation orders may be modified by an application for modification pursuant to W & I Code Section 388, by Application and Order, or by motion of a party at a regularly scheduled review hearing.

c. Visitation should be as frequent as possible, consistent with the well-being of the child.

I. JUDICIALLY SUPERVISED SETTLEMENT CONFERENCES AND TRIALS

(1) Where the Court has set a date for a judicially supervised settlement conference or a trial, the youth’s attorney must interview the youth, make an assessment of all relevant circumstances, and determine whether the youth will be called as a witness.

(2) If the youth is ten (10) years of age or older, the youth’s attorney must inform the youth of the date of the judicially supervised settlement conference or trial and of the youth’s right to attend the proceedings.

(3) If DFCS has changed any of its recommendations since it last provided the Court and parties with its recommendations, DFCS must provide the Court and the parties with notice of its revised recommendations no later than three (3) court days prior to the date of the judicially supervised settlement conference or trial. The Court may waive this notice requirement upon a showing of good cause or agreement of the parties./p>

(4) Counsel, parties, and persons with full authority to settle the case must personally attend the judicially supervised settlement conference and trial. The youth is encouraged to attend, but the youth’s attendance is not required.

J. DEPENDENCY MEDIATION

(1) The Court, pursuant to W & I Code Section 350 and at any stage of the Dependency Court process, upon the request of any person who the Court deems to have a direct and legitimate interest in the particular case or on the Court’s own motion, will order all parties and counsel to participate in confidential mediation in an attempt to resolve jurisdictional and/or dispositional issues in dispute, or case related problems, and to develop a related plan that is in the best interests of the child.

(2) Dependency Mediators must be either California Licensed Marriage and Family Therapists, Licensed Clinical Social Workers, or Licensed Psychologists employed by FCS who meet the training and experience requirements included within the current Santa Clara County Dependency Mediation Protocol and Dependency Mediation Domestic Violence Protocol, CRC 5.518, and the Court-connected Dependency Mediation.

(3) Calendaring and Referral.

a. The Court will calendar appointments for cases ordered to mediation with the Dependency Mediation Program. The Court will, at the time of calendaring, attempt to identify all the individuals whose participation in mediation may be helpful in resolving the case so that their participation may be either ordered or invited as appropriate.

b. The Court will complete the Dependency Mediation Referral form at the time of calendaring and referral, identifying the participants and issues referred to mediation. The Court will also indicate on that form whether domestic violence has ever been an issue in the case. The Court will also determine whether a Domestic Violence Protective Order is in effect, and, if so, forward a copy of said order to the Dependency Mediation Program along with the referral.

(4) The parties, assigned DFCS social workers, all assigned counsel, and any Court Appointed Special Advocates must attend all scheduled mediation appointments. The subject child has a right to participate in the Dependency mediation process accompanied by his or her attorney unless the child makes an informed choice not to participate.

a. Failure to attend mediation by the mandated participants may result in the imposition of sanctions pursuant to Code of Civil Procedure Section 177.5.

(5) Upon the concurrence of the Mediator(s) and counsel, other individuals will be permitted to participate in the mediation on a voluntary basis.

(6) Dependency Mediation in Santa Clara County is a confidential and non-recommending process operating in compliance with Evidence Code Sections 1115 through 1128 with the following exceptions to confidentiality: 1) Santa Clara County Dependency Mediators are mandatory child abuse reporters as defined within Penal Code Section 11166.5 and have a duty to report in the event they develop a reasonable suspicion of child abuse not formerly reported; 2) Santa Clara County Dependency Mediators have a duty when confronted with serious threats of violence against reasonably identifiable victims to make reasonable efforts to communicate such threats to the victim or victims and to a law enforcement agency (the Tarasoff warning); 3) Mediators have the duty to disclose information as otherwise may be compelled by statue or case law.

(7) Dependency Mediation must be conducted in accordance with the Santa Clara County Dependency Mediation Protocol and Dependency Mediation Domestic Violence Protocol and CRC 5.518. Court connected Dependency Mediation must involve, at a minimum, all the mandatory participants as defined in subdivision (4) above at various stages throughout the process.

a. All mandatory mediation participants and the Mediators must appear on time for all scheduled mediation appointments.

b. Dependency Mediators must make every reasonable effort to release the attorneys involved in mediation during the middle stages of the process, consistent with their clients’ need to consult with them during the course of mediations, so that the attorneys may make themselves available to the Court and facilitating the conducting of Court business in the most efficient manner possible.

c. Dependency Mediators must make every reasonable attempt to ensure that morning mediation appointments are completed no later than 11:30 a.m., and that afternoon mediation appointments are completed no later than 4:30 p.m., so that the parties and attorneys may report back to the Court in a timely manner.

d. Each area of agreement resulting from mediation must be approved by all the mandatory participants including the family members who are parties, the assigned DFCS Social Worker, all the involved attorneys, and any participating Court Appointed Special Advocate.

e. The attorney from the Office of the County Counsel assigned to represent the assigned social worker from DFCS will be responsible for recording all aspects of any partial or complete agreement, and for recording any areas of remaining disagreement.

f. Immediately upon completion of the mediation appointment, all the mandatory participants may proceed to Court. The attorney from the Office of the County Counsel will report to the Court the exact nature of any areas of agreement and/or disagreement, and/or any request for an additional mediation appointment. The Court will take whatever action is deemed necessary to confirm the nature of agreement/disagreement with the parties and attorneys, and to assure itself that all parties and attorneys understand the nature of any agreement. The Court will also approve/disapprove any request for an additional mediation appointment, and if approved, calendar the return appointment.

g. The Court will review the proposed agreement and determine whether to approve any portion or all of it. The Court will make any orders and/or findings deemed appropriate. The Court will determine any necessary subsequent action including trial setting.

h. The attorney representing the Office of the County Counsel will be responsible for preparing any orders made by the Court related to the mediated agreement. The attorney from the Office of the County Counsel must complete the Dependency Mediation Outcome Form (Local Form JV-2029 ) and return the form to the Mediator.

K. COURT ORDERED MENTAL HEALTH EVALUATION

Where the Court has ordered a mental health or psychological evaluation, the Court will determine what Court reports and other information will be released to the evaluator.

 

(Effective 1/1/2022)

 


Juvenile Rules of Court: Summary - Intro - 1 - 2 - 3 - 4
List of attached Juvenile local forms

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