Prospective Adoptive Parent (JV-321)
What is a Prospective Adoptive Parent (PAP)?
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 county agency 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 will not grant PAP status until parental rights have been terminated at the .26 hearing. Welfare & Institutions Code § 366.26(n)
Additionally, you must meet the following requirements to be designated prospective adoptive parent:
1. The child must have lived with you for at least six months,
2. You must currently express a commitment to adopt,
3. You must have taken at least ONE step to facilitate the adoption process, including, but not limited to:
- Applied for an adoption homestudy
- In a case in which tribal customary adoption is the permanent plan, been identified by the Indian child's tribe as the prospective adoptive parent.
- Cooperated with an adoption homestudy
- Signed an adoptive placement agreement
- Requested de facto parent status
- Been designated by the court or the licensed adoption agency as the adoptive family
- Discussed a postadoption contact agreement with the social worker, child's attorney, child's CASA volunteer, adoption agency, or court.
- Worked to overcome any impediments that have been identified by the California Department of Social Services or the licensed adoption agency
- Attended any of the classes required of a prospective adoptive parent
- Taken other steps toward adopting the child
*NOTE: the JV-321 form was last updated in 2010 (before the resource family approval process went into effect). The list of "steps" under question #8 does not take into account the "steps" a caregiver takes to complete RFA. If you are RFA approved, you can check box (a), (c) and (i). Additionally, check box (j) and write in the space provided that you are resource family approved.
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. If you are the caregiver filing the JV-321, the clerk must provide notice of the hearing on your prospective adoptive parent designation.
You have the option to e-file your JV-321 in the following counties:
Other counties may also offer e-filing in their juvenile divisions. If you are in a different county and wish to e-file, you should call the court clerk’s office to learn whether the juvenile court currently accepts submissions by e-file. Be sure to specify that you are inquiring about filing in juvenile court, as counties may permit e-filing in other courts, but not the juvenile division.
Prospective Adoptive Parents Must be Given Notice and Can Object to the Removal of a Foster Child
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 written 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 which states the reasons for removal. Along with the JV-323, you must also be provided with a JV-326 Proof of Notice, JV-325 Objection to Removal, and a JV-328 Prospective Adoptive Parent Order After Hearing. If you object to the removal of the child, you must file the JV-325 within 5 court days (or 7 calendar days) from the date on the JV-326 Notice. If you received the JV-326 by mail, you have an additional 5 calendar days.
*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 as outlined above.
DSS must also file the JV-323 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.
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.
*NOTE: 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.
Appellate Review of Placement Decisions made after Parental Rights are Terminated (post .26 hearing)
If a placement decision is made by the juvenile dependency court after termination of parental rights, that order can only be reviewed by the appellate court if the person objecting to the order files a timely petition for extraordinary writ (so that delays caused by appeals can be avoided). California Rules of Court 8.456 and 8.490 govern the writ petitions to review post termination placement orders under Welfare and Institutions Code § 366.28.
If the court orders that the child be placed out of state, that order is automatically stayed for seven (7) days to give the prospective adoptive parent time to file a writ petition and seek a stay from the court of appeal. California Code of Civil Procedure section 917.7 provides, in pertinent part: “[I]n the absence of a writ or order of a reviewing court providing otherwise, the provisions of an order allowing, or eliminating restrictions against, removal of the minor child from the state are stayed by operation of law for a period of seven calendar days from the entry of the judgment or order by a juvenile court in a dependency hearing.”
For additional information regarding writ review of this order, please click on the relevant tab:
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