What is a Prospective Adoptive Parent?
The Juvenile Court may designate a current caretaker as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. If you are granted Prospective Adoptive Parent status,
- a foster child cannot be removed from your home without a Juvenile Court hearing, and
- the Department of Social Services has the burden of proving that the proposed move is in the best interest of the child.
Please note that when a person is designated as a prospective adoptive parent, that person is not a party to the dependency proceedings nor do they have any standing to object to any department or agency decision other than removal, unless the person was recognized as a de facto parent prior to the notice of removal. For more information see our De Facto Parent Information Page.
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Timing is critical. The hearing for termination of parental rights (the .26 hearing) must be scheduled in order for you to apply. However, the judge may not grant this designation until the .26 hearing. You may also apply anytime after parental rights have been terminated.
- Welfare & Institutions Code § 366.26(n)
- The child must have lived with you for at least six months
- You must currently express a commitment to adopt
- You must have taken at least ONE step to facilitate the adoption process, including, but not limited to:
- Applying for an adoption homestudy
- Cooperating with an adoption homestudy
- Being designated by the court or the licensed adoption agency as the adoptive family
- Requesting de facto parent status
- Signing an adoptive placement agreement
- Engaging in discussions regarding a post adoption contact agreement
- Working to overcome any impediments that have been identified by the State Department of Social Services and the licensed adoption agency
- Attending classes required of prospective adoptive parents
How to Apply for Prospective Adoptive Parent Status
In addition to the qualification requirements above, you must complete and file a court form called the JV 321 Request For Prospective Adoptive Parent Designation, Notice, and Order.
Rights of Prospective Adoptive Parents
If you have been designated a “Prospective Adoptive Parent”, your county Department of Social Services (DSS) cannot remove the child in your care from your home without giving you notice of their intent to remove. They must notify you by sending a special form called the JV-323 Notice of Intent to Remove Child and Proof of Notice, Objection to Removal, and Order After Hearing.
NOTE: Even if you are not formally designated as the Prospective Adoptive Parent, you may have the right to notice, to object, and to request a hearing if you meet the threshold qualifications for Prospective Adoptive Parent.
DSS must also file the JV-323 Form with the Juvenile Court, and send copies to the child if he/she is over ten years of age, the child’s attorney, and the CASA. Once you receive this form, which notifies you that DSS wants to move the child, you may object to the move and request a hearing.
Requesting a Hearing on a Proposed Removal of a Foster Child
The Prospective Adoptive Parent has the right to request a hearing on the proposed removal of a child in their care.
- Your request for a hearing objecting to the proposed move must be made on the special court form called the JV-325 Objection to Removal and you must deliver or send it to your Juvenile Court Clerk. They will set a hearing date, and notify child’s attorney and CASA of the scheduled hearing.
- You must request the hearing within five court or seven calendar days from date of notification, whichever is longer. If service is by mail, time to respond is extended by five calendar days. Welfare and Institutions Code section 366.26(n)(3)(A)
- The hearing must be set as soon as possible and not later than five court days after the objection is filed with the court. Welfare and Institutions Code section 366.26(n)(3)(B)
At the hearing on an intent to remove the child, the agency intending to remove the child has the burden of proof. The agency must prove by a preponderance of the evidence that the proposed removal is in the best interest of the child.
If no petition objecting to the move is filed and the court does not set a hearing on its own motion, the child may be moved without a hearing.
Please note that even if you have not been formally designated as the Prospective Adoptive Parent, you have the right to notice of intent to move the child in your care, and the right to object and request a hearing if you meet the threshold criteria for Prospective Adoptive Parent. The Court will decide at the hearing whether or not you will be designated as the Prospective Adoptive Parent. A caregiver who qualifies but has not yet been designated a Prospective Adoptive Parent must prepare and file both the JV-321 and the JV-325.
California Rule of Court Rule 5.727
Please note that all documents below are fillable.
- JV 321 Request For Prospective Adoptive Parent Designation, Notice, and Order
- JV 322 Confidential Information— Prospective Adoptive Parent
- JV 323 Notice of Intent to Remove Child
- JV 324 Notice of Emergency Removal
- JV 325 Objection to Removal
- JV 326 Proof of Notice
- JV 326 INFO Instructions for Notice of Prospective Adoptive Parent Hearing
- JV 327 Prospective Adoptive Parent Designation Order
- JV 328 Prospective Adoptive Parent Order After Hearing
Sample Clerk Cover Letter
NOTE: if you are the caregiver, your County Clerk must provide notice of the hearing to all parties, per California Rule of Court 5.726.
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