Rule 5.811. Modification to transition jurisdiction for a ward older than 17 years and 5 months with a petition subject to dismissal (Welf. & Inst. Code, §§ 450, 451, 727.2(i)-(j), 778; Pen. Code, § 236.14)

(a) Purpose.

This rule provides the procedures that must be followed to modify delinquency jurisdiction to transition jurisdiction for a young person who is older than 17 years, 5 months of age and:

(1)  Is under a foster care placement order;

(2)  Wants to remain in extended foster care under the transition jurisdiction of the juvenile court;

(3)  Is not receiving reunification services;

(4)  Does not have a hearing set for termination of parental rights or establishment of guardianship; and

(5)  The underlying adjudication establishing wardship over the young person is subject to vacatur under Penal Code section 236.14.

(b) Setting and conduct of hearing.

(1)  The probation officer must request a hearing for the court to modify delinquency jurisdiction to transition jurisdiction and vacate the underlying adjudication.

(2)  The hearing must be held before a judicial officer and recorded by a court reporter.

(3)  The hearing must be continued for no more than five court days for the submission of additional evidence if the court finds that the report and, if required, the Transitional Independent Living Case Plan submitted by the probation officer do not provide the information required by (d), and the court is unable to make all the findings required by (e).

(c) Notice of hearing.

(1)  The probation officer must serve written notice of the hearing in the manner provided in section 295.

(2)  Proof of service of notice must be filed by the probation officer at least five court days before the hearing.

(d) Reports.

At least 10 calendar days before the hearing, the probation officer must submit a report to the court that includes information regarding:

(1)  Whether the young person is subject to an order for foster care placement and is older than 17 years, 5 months of age and younger than 18 years of age;

(2)  Whether the young person is a nonminor who was subject to an order for foster care placement on the day of the young person's 18th birthday and is within the age eligibility requirements for extended foster care;

(3)  Whether the young person was removed from the physical custody of his or her parents, adjudged to be within the jurisdiction of the juvenile court under section 725, and ordered into foster care placement; or whether the young person was removed from the custody of his or her parents as a dependent of the court with an order for foster care placement in effect at the time the court adjudged him or her to be within the jurisdiction of the juvenile court under section 725 and was ordered into a foster care placement, including the date of the initial removal findings-"continuance in the home is contrary to the child's welfare" and "reasonable efforts were made to prevent removal"-as well as whether the young person continues to be removed from the parents or legal guardian from whom the young person was removed under the original petition;

(4)  Whether each parent or legal guardian is currently able to provide the care, custody, supervision, and support the child requires in a safe and healthy environment;

(5)  Whether the young person signed a mutual agreement with the probation department or social services agency for placement in a supervised setting as a transition dependent and, if so, a recommendation as to which agency should be responsible for placement and care of the transition dependent;

(6)  Whether the young person plans to meet at least one of the conditions in section 11403(b) and what efforts the probation officer has made to help the young person meet any of these conditions;

(7)  When and how the young person was informed of the benefits of remaining under juvenile court jurisdiction as a transition dependent and the probation officer's assessment of the young person's understanding of those benefits;

(8)  When and how the young person was informed that he or she may decline to become a transition dependent and have the juvenile court terminate jurisdiction at a hearing under section 391 and rule 5.555; and

(9)  When and how the young person was informed that if juvenile court jurisdiction is terminated, he or she can file a request to return to foster care and have the court resume jurisdiction over him or her as a nonminor.

(e) Findings.

At the hearing, the court must make the following findings:

(1)  Whether notice has been given as required by law;

(2)  Whether the underlying adjudication is subject to vacatur under Penal Code section 236.14;

(3)  Whether the young person has been informed that he or she may decline to become a transition dependent and have juvenile court jurisdiction terminated at a hearing set under rule 5.555;

(4)  Whether the young person intends to sign a mutual agreement with the probation department or social services agency for placement in a supervised setting as a nonminor dependent;

(5)  Whether the young person was informed that if juvenile court jurisdiction is terminated, the young person can file a request to return to foster care and may have the court resume jurisdiction over the young person as a nonminor dependent;

(6)  Whether the benefits of remaining under juvenile court jurisdiction as a nonminor dependent were explained and whether the young person understands them;

(7)  Whether the young person's Transitional Independent Living Case Plan includes a plan for the young person to satisfy at least one of the conditions in section 11403(b); and

(8)  Whether the young person has had an opportunity to confer with his or her attorney.

(9)  In addition to the findings listed above, for children who are older than 17 years, 5 months of age but younger than 18 years of age, the court must make the following findings:

(A)  Whether the young person's return to the home of his or her parent or legal guardian would create a substantial risk of detriment to the young person's safety, protection, or physical or emotional well-being-the facts supporting this finding must be stated on the record;

(B)  Whether reunification services have been terminated; and

(C)  Whether the young person's case has been set for a hearing to terminate parental rights or establish a guardianship.

(f) Orders.

The court must enter the following orders:

(1)  An order adjudging the young person a transition dependent as of the date of the hearing or pending his or her 18th birthday and granting status as a nonminor dependent under the general jurisdiction of the court. The order modifying the court's jurisdiction must contain all of the following provisions:

(A)  A statement that "continuance in the home is contrary to the child or nonminor's welfare" and that "reasonable efforts have been made to prevent or eliminate the need for removal";

(B)  A statement that the child continues to be removed from the parents or legal guardian from whom the child was removed under the original petition; and

(C)  Identification of the agency that is responsible for placement and care of the child based on the modification of jurisdiction.

(2)  An order vacating the underlying adjudication and dismissing the associated delinquency petition under Penal Code section 236.14.

(3)  An order directing the Department of Justice and any law enforcement agency that has records of the arrest to seal those records and, three years from the date of the arrest or one year after the order to seal, whichever occurs later, destroy them.

(4)  An order continuing the appointment of the attorney of record, or appointing a new attorney as the attorney of record for the nonminor dependent.

(5)  An order setting a nonminor dependent status review hearing under section 366.31 and rule 5.903 within six months of the last hearing held under section 727.2 or 727.3.

Rule 5.811 adopted effective January 1, 2019.


Rules that reference this rule: N/A