New Rules 2005 - Juvenile Dependency Writs

JUVENILE DEPENDENCY WRITS

UNDER WELFARE AND INSTITUTIONS CODE SECTION 366.26

Topic

New

Old

Significant Changes / Comments

Notice of intent

Rule 38

Application of rule

38(a)

39.1B(b)

Rules 38-38.1, not rule 56, govern section 366.26 writs.

Purpose

38(b)

39.1B(a)

No substantive changes.  Encourage review on merits within 120 days.

Who may file

38(c)

39.1B(h)

No substantive changes.  Trial counsel or party.

Extensions of time

38(d)

New

Extensions for any act including filing notice of intent may be granted, but only by Court of Appeal on showing of exceptional good cause.

Notice of intent

38(e)

Requirement of notice and request for record

38(e)(1)

39.1B(f)

No substantive changes.

Dates of hearings

38(e)(2)

39.1B(f)

No substantive changes.

Signature

38(e)(3)

39.1B(f)

No substantive changes.

Time for filing

38(e)(4)

39.1B(f)

No substantive changes.

Time to file if order was mailed

38(e)(5)

39.1B(f)

Change: When notice of the order setting 366.26 hearing is mailed, the 12 days for filing a notice of intent under this rule is to be measured from the date of mailing, rather than the date of the order.

Sending the notice of intent

38(f)

Counsel

38(f)(1)(A)

39.1B(f)

No substantive changes.

Parties

38(f)(1)(B)

39.1B(f)

No substantive changes.

Probation officer or social worker

38(f)(1)(C)

39.1B(f)

No substantive changes.

CASA

38(f)(1)(D)

39.1B(f)

No substantive changes.

Court of Appeal

38(f)(2)

39.1B(f)

New:  In addition to copy of notice and proof of service, clerk must include date that notice of order setting 366.26 hearing was sent, if that notice was sent only by mail.

Preparing the record

38(g)

Notice to reporter

38(g)(1)

39.1B(g)

No substantive changes.

Clerk's transcript

38(g)(2)

39.1B(g)

Added:  Notice of intent and proof of service.

Sending the record

38(h)

Originals to Court of Appeal by most expeditious method

38(h)(1)

39.1B(g)

No substantive changes.

Copies for counsel and any unrepresented party

38(h)(2)

39.1B(g)

No substantive changes.

Reviewing clerk's duties

38(i)

Lodge notice of intent.  Jurisdiction vested.

38(i)(1)

39.1B(g)

No substantive changes.

Notice record is filed, stating due date

38(i)(2)

39.1B(g)

No substantive changes.

Deletions from rules

Petition as prerequisite  to appeal

None

39.1B(d)-(e)

Old 39.1B(d)-(e) is deleted as unnecessary and duplicative of statute.

Writ petition

Rule 38.1

Petition

38.1(a)

Contents

38.1(a)(1)

39.1B(j)

Identification of parties

38.1(a)(1)(A)

New

Fills gap as to essential contents of petition.

Date of order setting hearing

38.1(a)(1)(B)

New

Fills gap as to essential contents of petition.

Scheduled date of hearing

38.1(a)(1)(C)

New

Fills gap as to essential contents of petition.

Grounds

38.1(a)(1)(D)

New

Fills gap as to essential contents of petition.

Relief sought

38.1(a)(1)(E)

New

Fills gap as to essential contents of petition.

Liberal construction

38.1(a)(2)

39.1B(i)

No substantive changes.

Points and authorities

38.1(a)(3)

39.1B(j)

No substantive changes.

Topic

New

Old

Significant Changes / Comments

Juvenile writ petitions (cont.)

Contents of points and authorities

38.1(b)

Summary of signfificant facts in record

38.1(b)(1)

39.1B(j)

No substantive changes.

Arguments with heading and authorities

38.1(b)(2)

New

Conforms to rule 14.

Citations to record, relevance of facts, identification of disputed aspects of record

38.1(b)(3)

39.1B(j)

No substantive changes.

Time to file petition and response

38.1(c)

Petition

38.1(c)(1)

39.1B(k)

No substantive changes. Still within 10 days of filing of record.

Response after petition filed

38.1(c)(2)(A)

39.1B(m)

No substantive changes.  Still within 10 days of petition, or 15 if petition served by mail.

Response after court request

38.1(c)(2)(B)

39.1B(m)

No substantive changes.  Still within 10 days unless court designates shorter time.

Order to show cause or alternative writ

38.1(d)

39.1B(l)

No substantive changes.  Court must issue to rule on merits.

Augmenting or correcting record in Court of Appeal

38.1(e)

Rule 12 to govern

38.1(e)(1)

39.1B(n), 12, 32.1

Change: All record additions must be by order of Court of Appeal under rule 12.  Notice to superior court clerk under rule 32.1 no longer an option.  Note:  Advisory Committee comment incorrectly refers to former provision as 39.1B(o) rather than (n).

Time to request

38.1(e)(2)

39.1B(n)

No change for records 600 or fewer pages; still within 5 days of record for petitioner and 5 days of petition for respondent.  Change: If record is over 600 pages, petitioner has 10 days after receiving the record and respondent has 10 days from filing of petition.

Time to prepare additional record; priority

38.1(e)(3)

39.1B(n)

No substantive changes.  Court may grant no more than 15 days, and order must be given highest priority.

Certifying and sending supplemental record

38.1(e)(4)

39.1B(n), (g)

No substantive changes. Governed by rule 38(h).

Stay

38.1(f)

39.1B(p)

Stay of 366.26 proceedings only on "exceptional showing of good cause."  Broadens former rule 39.1B(p), which required issues of "substantial complexity" requiring "extraordinary research and analysis."

Oral argument

38.1(g)

Time

38.1(g)(1)

39.1B(q)

No substantive changes.  Still within 30 days of response except on court order or waiver.

Submission

38.1(g)(2)

39.1B(q)

No substantive changes.  Still no later than 30 days after response or due date for it.

Decision

38.1(h)

On the merits by written opinion

38.1(h)(1)

39.1B(o)

No substantive changes. Still required in the absence of "exceptional circumstances."

Notice to parties and juvenile court

38.1(h)(2)

39.1B(r)

No substantive changes.

Notice in urgent situations

38.1(h)(3)

39.1B(r)

No substantive changes. If act ordered or stayed within 7 days or situation is otherwise ordered, Court of Appeal clerk to give telephonic notice to clerk and judge of juvenile court.

Telephonic notice in case of summary denial

38.1(h)(4)

39.1B(r)

Change:  Telephonic notice required if stay dissolved.

Hearing and decision in Court of Appeal

Rule 38.4

Governed by rules 22-26 except as provided in rules 37-38.4

38.4

New

New, but not a substantive change.

Hearing and decision in Supreme Court

Rule 38.4

Rules 28-28.9 govern.

38.4

New

New, but not a substantive change.

Procedures and data

Rule 38.6

Procedures to expedite juvenile writs and appeals

38.6(a)

39.1A(f), 39.2(e), 39.2A(e)

No substantive changes.

Data to assist Judicial Council in assessing rules

38.6(b)

39.1A(f), 39.2(e), 39.2A(e)

No substantive changes.