BILL NUMBER: SB 1357 CHAPTERED
BILL TEXT
CHAPTER 858
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2004
APPROVED BY GOVERNOR SEPTEMBER 29, 2004
PASSED THE SENATE AUGUST 17, 2004
PASSED THE ASSEMBLY AUGUST 12, 2004
AMENDED IN ASSEMBLY JUNE 28, 2004
AMENDED IN ASSEMBLY JUNE 9, 2004
AMENDED IN SENATE MAY 11, 2004
AMENDED IN SENATE APRIL 29, 2004
AMENDED IN SENATE APRIL 16, 2004
AMENDED IN SENATE MARCH 22, 2004
INTRODUCED BY Senator Scott
FEBRUARY 18, 2004
An act to amend Sections 8502, 8616.5, 8802, 8912, and 9000 of,
and to add Sections 7660.5 and 7907.5 to, the Family Code, and to
amend Section 293 of, and to amend and renumber Section 18965 of, the
Welfare and Institutions Code, relating to minors.
LEGISLATIVE COUNSEL'S DIGEST
SB 1357, Scott. Foster care and adoption.
Existing law governs juvenile court proceedings and adoption and
foster care proceedings. Among other things, these provisions
provide for the confidentiality of juvenile court records, require
that notice of hearings in dependency proceedings be given to
specified persons, and govern the rights of parents in adoption
proceedings.
Existing federal law, the Indian Child Welfare Act, also governs
proceedings to determine the custody or adoption placement of any
child who is, or who may be, a member of, or eligible for membership
in, an Indian tribe.
The Interstate Compact on the Placement of Children governs the
placement of children in foster care or for adoption out of state.
This bill would provide that if a presumed father waives the
right to notice in writing, as specified, no notice, relinquishment
for, or consent to adoption shall be required from him for the
adoption to proceed, as specified. The waiver would not affect the
rights of any known federally recognized Indian tribe or tribes from
which the child or the presumed father may be descended to
notification of, or participation in, adoption proceedings as
provided by the Indian Child Welfare Act.
The bill would provide that a child who is born in this state and
placed for adoption in this state with a resident of this state is
not subject to the provisions of the Interstate Compact on the
Placement of Children. The bill would make related changes and
clarifications.
The bill would revise the definition of an adoption service
provider, for purposes of provisions governing adoption, to include
an adoption agency licensed or otherwise approved under the laws of
another country.
The bill would make changes to provisions governing postadoption
contact agreements, the confidentiality of juvenile court records,
and foster care.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7660.5 is added to the Family Code, to read:
7660.5. Notwithstanding any other provision of law, if a presumed
father waives the right to notice pursuant to Section 7660 in
writing by executing a form developed by the department using
existing resources before a notary public or other person authorized
to perform notarial acts, no notice, relinquishment for, or consent
to adoption of the child shall be required from him for the adoption
proceeding to proceed. This shall be a voluntary and informed waiver
without undue influence. If the child is an Indian child as defined
under the Indian Child Welfare Act (ICWA), any waiver of consent by
an Indian presumed father shall be executed in accordance with the
requirements for voluntary adoptions set forth in Section 1913 of
Title 25 of the United States Code. The waiver shall not affect the
rights of any known federally recognized Indian tribe or tribes from
which the child or the presumed father may be descended to
notification of, or participation in, adoption proceedings as
provided by the ICWA. Notice that the waiver has been executed shall
be given to any known federally recognized Indian tribe or tribes
from which the child or the presumed father may be descended, as
required by the ICWA.
SEC. 2. Section 7907.5 is added to the Family Code, to read:
7907.5. (a) A child who is born in this state and placed for
adoption in this state with a resident of this state is not subject
to the provisions of the Interstate Compact on the Placement of
Children.
(b) A child who is born in this state and placed for adoption with
a person who is not a resident of this state is subject to the
provisions of the Interstate Compact on the Placement of Children,
regardless of whether the adoption petition is filed in this state.
In interstate placements, this state shall be deemed the sending
state for any child born in the state.
SEC. 3. Section 8502 of the Family Code is amended to read:
8502. (a) "Adoption service provider" means any of the following:
(1) A licensed private adoption agency.
(2) An individual who has presented satisfactory evidence to the
department that he or she is a licensed clinical social worker who
also has a minimum of five years of experience providing professional
social work services while employed by a licensed California
adoption agency or the department.
(3) In a state other than California, or a country other than the
United States, an adoption agency licensed or otherwise approved
under the laws of that state or country, or an individual who is
licensed or otherwise certified as a clinical social worker under the
laws of that state or country.
(4) An individual who has presented satisfactory evidence to the
department that he or she is a licensed marriage and family therapist
who has a minimum of five years of experience providing professional
adoption casework services while employed by a licensed California
adoption agency or the department. The department shall review the
qualifications of each individual to determine if he or she has
performed professional adoption casework services for five years as
required by this section while employed by a licensed California
adoption agency or the department.
(b) If, in the case of a birth parent located in California, at
least three adoption service providers are not reasonably available,
or, in the case of a birth parent located outside of California or
outside of the United States who has contacted at least three
potential adoption service providers and been unsuccessful in
obtaining the services of an adoption service provider who is
reasonably available and willing to provide services, independent
legal counsel for the birth parent may serve as an adoption service
provider pursuant to subdivision (e) of Section 8801.5. "Reasonably
available" means that an adoption service provider is all of the
following:
(1) Available within five days for an advisement of rights
pursuant to Section 8801.5, or within 24 hours for the signing of the
placement agreement pursuant to paragraph (3) of subdivision (b) of
Section 8801.3.
(2) Within 100 miles of the birth mother.
(3) Available for a cost not exceeding five hundred dollars ($500)
to make an advisement of rights and to witness the signing of the
placement agreement.
(c) Where an attorney acts as an adoption service provider, the
fee to make an advisement of rights and to witness the signing of the
placement agreement shall not exceed five hundred dollars ($500).
SEC. 4. Section 8616.5 of the Family Code is amended to read:
8616.5. (a) The Legislature finds and declares that some adoptive
children may benefit from either direct or indirect contact with
birth relatives, including the birth parent or parents, after being
adopted. Postadoption contact agreements are intended to ensure
children of an achievable level of continuing contact when contact is
beneficial to the children and the agreements are voluntarily
entered into by birth relatives, including the birth parent or
parents, and adoptive parents.
(b) (1) Nothing in the adoption laws of this state shall be
construed to prevent the adopting parent or parents, the birth
relatives, including the birth parent or parents, and the child from
voluntarily entering into a written agreement to permit continuing
contact between the birth relatives, including the birth parent or
parents, and the child if the agreement is found by the court to have
been entered into voluntarily and to be in the best interests of the
child at the time the adoption petition is granted.
(2) Except as provided in paragraph (3), the terms of any
postadoption contact agreement executed under this section shall be
limited to, but need not include, all of the following:
(A) Provisions for visitation between the child and a birth parent
or parents and other birth relatives, including siblings, and the
child's Indian tribe if the case is governed by the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(B) Provisions for future contact between a birth parent or
parents or other birth relatives, including siblings, or both, and
the child or an adoptive parent, or both, and in cases governed by
the Indian Child Welfare Act, the child's Indian tribe.
(C) Provisions for the sharing of information about the child in
the future.
(3) The terms of any postadoption contact agreement shall be
limited to the sharing of information about the child, unless the
child has an existing relationship with the birth relative.
(c) At the time an adoption decree is entered pursuant to a
petition filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000,
the court entering the decree may grant postadoption privileges if
an agreement for those privileges has been entered into, including
agreements entered into pursuant to subdivision (f) of Section 8620.
(d) The child who is the subject of the adoption petition shall be
considered a party to the postadoption contact agreement. The
written consent to the terms and conditions of the postadoption
contact agreement and any subsequent modifications of the agreement
by a child who is 12 years of age or older is a necessary condition
to the granting of privileges regarding visitation, contact, or
sharing of information about the child, unless the court finds by a
preponderance of the evidence that the agreement, as written, is in
the best interests of the child. Any child who has been found to
come within Section 300 of the Welfare and Institutions Code or who
is the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code shall be
represented by an attorney for purposes of consent to the
postadoption contact agreement.
(e) A postadoption contact agreement shall contain the following
warnings in bold type:
(1) After the adoption petition has been granted by the court, the
adoption cannot be set aside due to the failure of an adopting
parent, a birth parent, a birth relative, or the child to follow the
terms of this agreement or a later change to this agreement.
(2) A disagreement between the parties or litigation brought to
enforce or modify the agreement shall not affect the validity of the
adoption and shall not serve as a basis for orders affecting the
custody of the child.
(3) A court will not act on a petition to change or enforce this
agreement unless the petitioner has participated, or attempted to
participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute.
(f) Upon the granting of the adoption petition and the issuing of
the order of adoption of a child who is a dependent of the juvenile
court, juvenile court dependency jurisdiction shall be terminated.
Enforcement of the postadoption contact agreement shall be under the
continuing jurisdiction of the court granting the petition of
adoption. The court may not order compliance with the agreement
absent a finding that the party seeking the enforcement participated,
or attempted to participate, in good faith in mediation or other
appropriate dispute resolution proceedings regarding the conflict,
prior to the filing of the enforcement action, and that the
enforcement is in the best interests of the child. Documentary
evidence or offers of proof may serve as the basis for the court's
decision regarding enforcement. No testimony or evidentiary hearing
shall be required. The court shall not order further investigation
or evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(g) The court may not award monetary damages as a result of the
filing of the civil action pursuant to subdivision (e) of this
section.
(h) A postadoption contact agreement may be modified or terminated
only if either of the following occurs:
(1) All parties, including the child if the child is 12 years of
age or older at the time of the requested termination or
modification, have signed a modified postadoption contact agreement
and the agreement is filed with the court that granted the petition
of adoption.
(2) The court finds all of the following:
(A) The termination or modification is necessary to serve the best
interests of the child.
(B) There has been a substantial change of circumstances since the
original agreement was executed and approved by the court.
(C) The party seeking the termination or modification has
participated, or attempted to participate, in good faith in mediation
or other appropriate dispute resolution proceedings prior to seeking
court approval of the proposed termination or modification.
Documentary evidence or offers of proof may serve as the basis for
the court's decision. No testimony or evidentiary hearing shall be
required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(i) All costs and fees of mediation or other appropriate dispute
resolution proceedings shall be borne by each party, excluding the
child. All costs and fees of litigation shall be borne by the party
filing the action to modify or enforce the agreement when no party
has been found by the court as failing to comply with an existing
postadoption contact agreement. Otherwise, a party, other than the
child, found by the court as failing to comply without good cause
with an existing agreement shall bear all the costs and fees of
litigation.
(j) The Judicial Council shall adopt rules of court and forms for
motions to enforce, terminate, or modify postadoption contact
agreements.
(k) The court may not set aside a decree of adoption, rescind a
relinquishment, or modify an order to terminate parental rights or
any other prior court order because of the failure of a birth parent,
adoptive parent, birth relative, or the child to comply with any or
all of the original terms of, or subsequent modifications to, the
postadoption contact agreement.
SEC. 5. Section 8802 of the Family Code is amended to read:
8802. (a) (1) Any of the following persons who desire to adopt a
child may, for that purpose, file a petition in the county in which
the petitioner resides or, if the petitioner is not a resident of
this state, in the county in which the placing birth parent or birth
parents resided when the adoption placement agreement was signed, or
the county in which the placing birth parent or birth parents resided
when the petition was filed:
(A) An adult who is related to the child or the child's half
sibling by blood or affinity, including all relatives whose status is
preceded by the words "step," "great," "great-great," or "grand," or
the spouse of any of these persons, even if the marriage was
terminated by death or dissolution.
(B) A person named in the will of a deceased parent as an intended
adoptive parent where the child has no other parent.
(C) A person with whom a child has been placed for adoption.
(D) (i) A legal guardian who has been the child's legal guardian
for more than one year.
(ii) If the court has found the child to have been abandoned
pursuant to Section 7822, a legal guardian who has been the child's
legal guardian for more than six months. The legal guardian may file
a petition pursuant to Section 7822 in the same court and
concurrently with a petition under this section.
(iii) However, if the parent nominated the guardian for a purpose
other than adoption for a specified time period, or if the
guardianship was established pursuant to Section 360 of the Welfare
and Institutions Code, the guardianship shall have been in existence
for not less than three years.
(2) If the child has been placed for adoption, a copy of the
adoptive placement agreement shall be attached to the petition. The
court clerk shall immediately notify the department at Sacramento in
writing of the pendency of the proceeding and of any subsequent
action taken.
(3) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
(b) The petition shall contain an allegation that the petitioners
will file promptly with the department or delegated county adoption
agency information required by the department in the investigation of
the proposed adoption. The omission of the allegation from a
petition does not affect the jurisdiction of the court to proceed or
the validity of an adoption order or other order based on the
petition.
(c) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth and the name the child had
before adoption.
(d) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding
shall be consolidated with the adoption proceeding.
(e) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 6. Section 8912 of the Family Code is amended to read:
8912. (a) A person desiring to adopt a child may for that purpose
file a petition in the county in which the petitioner resides. The
court clerk shall immediately notify the department at Sacramento in
writing of the pendency of the proceeding and of any subsequent
action taken.
(b) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth. The name the child had
before adoption shall appear in the joinder signed by the licensed
adoption agency.
(c) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding
shall be consolidated with the adoption proceeding.
(d) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
(e) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
SEC. 7. Section 9000 of the Family Code is amended to read:
9000. (a) A stepparent desiring to adopt a child of the
stepparent's spouse may for that purpose file a petition in the
county in which the petitioner resides.
(b) A domestic partner, as defined in Section 297, desiring to
adopt a child of his or her domestic partner may for that purpose
file a petition in the county in which the petitioner resides.
(c) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth and the name the child had
before adoption.
(d) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding
shall be consolidated with the adoption proceeding.
(e) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
(f) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
(g) For the purposes of this chapter, stepparent adoption includes
adoption by a domestic partner, as defined in Section 297.
SEC. 8. Section 293 of the Welfare and Institutions Code is
amended to read:
293. The social worker or probation officer shall give notice of
the review hearings held pursuant to Section 366.21 or 366.22 in the
following manner:
(a) Notice of the hearing shall be given to the following persons:
(1) The mother.
(2) The presumed father or any father receiving services.
(3) The legal guardian or guardians.
(4) The child, if the child is 10 years of age or older.
(5) Any known sibling of the child who is the subject of the
hearing if that sibling either is the subject of a dependency
proceeding or has been adjudged to be a dependent child of the
juvenile court. If the sibling is 10 years of age or older, the
sibling, the sibling's caregiver, and the sibling's attorney. If the
sibling is under 10 years of age, the sibling's caregiver and the
sibling's attorney. However, notice is not required to be given to
any sibling whose matter is calendared in the same court on the same
day.
(6) In the case of a child removed from the physical custody of
his or her parent or legal guardian, the foster parents, relative
caregivers, community care facility, or foster family agency having
custody of the child. In a case in which a foster family agency is
notified of the hearing pursuant to this section, and the child
resides in a foster home certified by the foster family agency, the
foster family agency shall provide timely notice of the hearing to
the child's caregivers.
(7) Each attorney of record if that attorney was not present at
the time that the hearing was set by the court.
(8) If the court knows or has reason to know that an Indian child
is involved, then to the Indian custodian and the tribe of that
child. If the identity or location of the parent or Indian custodian
and the tribe cannot be determined, notice shall be given to the
Bureau of Indian Affairs.
(b) No notice is required for a parent whose parental rights have
been terminated.
(c) The notice of hearing shall be served not earlier than 30
days, nor later than 15 days, before the hearing. In the case of an
Indian child, if notice is given to the Bureau of Indian Affairs, the
bureau shall have 15 days after receipt to provide the requisite
notice to the parent or Indian custodian and the tribe. This
subdivision does not affect the tribe's right to intervene at any
point in the proceedings.
(d) (1) The notice shall contain a statement regarding the nature
of the hearing to be held and any change in the custody or status of
the child being recommended by the supervising agency. If the notice
is to the child, parent or parents, or legal guardian or guardians,
the notice shall also advise them of the right to be present, the
right to be represented by counsel, the right to request counsel, and
the right to present evidence. The notice shall also state that if
the parent or parents or legal guardian or guardians fail to appear,
the court may proceed without them.
(2) In the case of an Indian child, the notice shall contain a
statement that the parent or Indian custodian and the tribe have a
right to intervene at any point in the proceedings. The notice shall
also include a statement that the parent or Indian custodian and the
tribe shall, upon request, be granted up to 20 additional days to
prepare for the proceedings.
(e) (1) Service of the notice shall be by first-class mail
addressed to the last known address of the person to be noticed or by
personal service on the person. Service of a copy of the notice
shall be by personal service or by certified mail, return receipt
requested, or any other form of notice that is equivalent to service
by first-class mail.
(2) In the case of an Indian child, notice shall be by registered
mail, return receipt requested.
(f) Notice to a foster parent, a relative caregiver, a certified
foster parent who has been approved for adoption, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency or by a
licensed county adoption agency, shall indicate that the person
notified may attend all hearings or may submit any information he or
she deems relevant to the court in writing.
SEC. 9. Section 18965 of the Welfare and Institutions Code, as
amended and renumbered by Chapter 1122 of the Statutes of 1992, is
amended and renumbered to read:
18964. (a) Notwithstanding any provision of law governing the
disclosure of information and records, including, but not limited to,
Section 5328 of the Welfare and Institutions Code, a person who is
trained and qualified to serve on a multidisciplinary personnel team
pursuant to subdivision (d) of Section 18951, whether or not the
person is serving on a team, may be deemed, by the team, to be part
of the team as necessary for the purpose of the prevention,
identification, management, or treatment of an abused child and his
or her parents. The designated team may deem a person to be a member
of the team for a particular case, and that team shall specify its
reasons, in writing, for deeming that person to be a member of the
team. The person, when deemed a member of the team, may receive and
disclose information relevant to a particular case as though he or
she were a member of the team. The information and records which may
be disclosed shall not be restricted to those obtained in the course
of providing services pursuant to this chapter.
(b) The caregiver of the child and, in the case of an Indian
child, the child's tribe shall be permitted to provide information
about the child to the multidisciplinary personnel team that will be
considered by the team and to attend meetings of the
multidisciplinary personnel team, as deemed appropriate by the team,
without becoming a member of the team. Any caregiver or tribal
representative who attends multidisciplinary personnel team meetings
shall agree in writing not to disclose any confidential information
he or she receives as a result of his or her participation with the
team.