BILL NUMBER: SB 182 CHAPTERED 09/02/03 CHAPTER 251 FILED WITH SECRETARY OF STATE SEPTEMBER 2, 2003 APPROVED BY GOVERNOR SEPTEMBER 1, 2003 PASSED THE SENATE AUGUST 19, 2003 PASSED THE ASSEMBLY JULY 17, 2003 AMENDED IN ASSEMBLY JUNE 17, 2003 AMENDED IN ASSEMBLY JUNE 9, 2003 AMENDED IN SENATE APRIL 8, 2003 AMENDED IN SENATE MARCH 26, 2003 INTRODUCED BY Senator Scott FEBRUARY 12, 2003 An act to amend Sections 7620, 7630, 7662, 7669, 8614, 8714, 8714.5, 8715, and 8814.5 of, and to amend and renumber Section 8714.7 of, the Family Code, and to add Section 1516.5 to the Probate Code, relating to adoption. LEGISLATIVE COUNSEL'S DIGEST SB 182, Scott. Parent and child relationships: adoption. (1) Existing law, the Uniform Parentage Act, governs the determination of parent and child relationships. Among other things, the act authorizes proceedings to terminate the parental rights of a father with respect to a child who does not have a presumed father and whose mother has relinquished for adoption, or consented to the adoption of, the child, or with respect to a child who becomes the subject of an adoption proceeding and whose father has not denied paternity, waived his right to notice, or voluntarily relinquished for adoption, or consented to the adoption of, the child. This bill would provide that specified proceedings affecting a child, including provisions governing child custody and child support, shall be stayed pending final determination of proceedings to terminate the parental rights of a father under the Uniform Parentage Act, as specified. (2) The act also provides that an action under the act may be brought in the county in which the child resides or is found, as specified. This bill would require that an action under the act be brought in the county in which the child resides or is found, as specified. (3) Existing law requires that an action to determine the existence of a father and child relationship with respect to a child who does not have a presumed father be consolidated with an action to terminate the parental rights of a father and be heard in the county in which the termination proceeding is filed. This bill would instead provide that the action shall be heard in the court, rather than the county, in which the termination proceeding is filed and make a related change. (4) Existing law provides that an order requiring or dispensing with a father's consent for the adoption of a child is conclusive and binding upon the father. Prior to the enactment of this provision, this order was authorized to be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court. This bill would revise existing law to additionally provide that the order may be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court. The bill would also provide that after making the order, the court has no power to set aside, change, or modify the order. (5) Existing law governs adoptions, including both agency and independent adoptions. Existing law permits adopting parents, birth relatives, and an adoptive child to enter into postadoption contact agreements, as specified. This provision is specifically applicable to agency adoptions. This bill would make that provision applicable to adoptions, generally. The bill would also make related, conforming changes. (6) Existing law authorizes a proceeding to declare a minor child free from the custody and control of one or both parents for purposes of adoption if the child has been in out-of-home placement under the supervision of the juvenile court, the county welfare department, or other public or private licensed child-placing agency for a one-year period and the court makes a specified finding. Existing law also provides for the appointment of a guardian of an unmarried minor. This bill would additionally authorize a proceeding to declare a minor child free from the custody and control of one or both parents for purposes of adoption to be brought in a guardianship proceeding if one or both parents do not have legal custody of the child, if the child has been in the physical custody of a guardian for a period of not less than 2 years, and if the court finds that the child would benefit from being adopted by his or her guardian, as specified. This provision would not apply to a dependent child of the juvenile court. (7) Existing law provides that, in an independent adoption, after a consent to an adoption is signed by a birth parent, the birth parent signing the consent has 30 days to revoke consent, as specified, or sign a waiver of his or her right to revoke consent. In certain cases, after revoking consent, a written notarized statement reinstating the original consent may be signed and delivered, as specified. In that case, the revocation of consent is void and a new 30-day period to revoke consent commences. This bill would instead provide that if a written notarized statement reinstating the original consent is signed and delivered, as specified, the revocation of consent is void and the remainder of the original 30-day period to revoke consent, rather than a new 30-day period, commences. The bill would also revise the circumstances under which a revocation of consent is void, and in which a new 30-day period commences, to apply when the birth parent or birth parents request the return of the child, as specified. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 7620 of the Family Code is amended to read: 7620. (a) A person who has sexual intercourse in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this part with respect to a child who may have been conceived by that act of intercourse. (b) An action under this part shall be brought in the county in which the child resides or is found or, if the father is deceased, in which proceedings for probate of his estate have been or could be commenced. SEC. 2. Section 7630 of the Family Code is amended to read: 7630. (a) A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, may bring an action as follows: (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party. (b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) of Section 7611. (c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7611 or whose presumed father is deceased may be brought by the child or personal representative of the child, the Department of Child Support Services, the mother or the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor. (d) An action under subdivision (c) shall be consolidated with a proceeding pursuant to Section 7662 if a proceeding has been filed under Chapter 5 (commencing with Section 7660). The parental rights of the alleged natural father shall be determined as set forth in Section 7664. The consolidated action shall be heard in the court in which the Section 7662 proceeding is filed, unless the court in which the action under subdivision (c) is filed finds, by clear and convincing evidence, that transferring the action to the other court poses a substantial hardship to the petitioner. Mere inconvenience does not constitute a sufficient basis for a finding of substantial hardship. If the court determines there is a substantial hardship, the consolidated action shall be heard in the court in which the paternity action is filed. SEC. 3. Section 7662 of the Family Code is amended to read: 7662. (a) If a mother relinquishes for or consents to, or proposes to relinquish for or consent to, the adoption of a child who does not have a presumed father under Section 7611, or if a child otherwise becomes the subject of an adoption proceeding and the alleged father, if any, has not, in writing, denied paternity, waived his right to notice, or voluntarily relinquished for or consented to the adoption, the agency or person to whom the child has been or is to be relinquished, or the mother or the person having physical or legal custody of the child, or the prospective adoptive parent, shall file a petition to terminate the parental rights of the father, unless either of the following occurs: (1) The father's relationship to the child has been previously terminated or determined not to exist by a court. (2) The father has been served as prescribed in Section 7666 with a written notice alleging that he is or could be the natural father of the child to be adopted or placed for adoption and has failed to bring an action for the purpose of declaring the existence of the father and child relationship pursuant to subdivision (c) of Section 7630 within 30 days of service of the notice or the birth of the child, whichever is later. (b) All proceedings affecting a child under Divisions 8 (commencing with Section 3000) to 11 (commencing with Section 6500), inclusive, and Parts 1 (commencing with Section 7500) to 3 (commencing with Section 7600), inclusive, of this division, other than an action brought pursuant to this section, shall be stayed pending final determination of proceedings to terminate the parental rights of the father pursuant to this section. (c) Nothing in this section may limit the jurisdiction of the court pursuant to Part 3 (commencing with Section 6240) and Part 4 (commencing with Section 6300) of Division 10 with respect to domestic violence orders. SEC. 4. Section 7669 of the Family Code is amended to read: 7669. (a) An order requiring or dispensing with a father's consent for the adoption of a child may be appealed from in the same manner as an order of the juvenile court declaring a person to be a ward of the juvenile court and is conclusive and binding upon the father. (b) After making the order, the court has no power to set aside, change, or modify that order. (c) Nothing in this section limits the right to appeal from the order and judgment. SEC. 5. Section 8614 of the Family Code is amended to read: 8614. Upon the request of the adoptive parents or the adopted child, a clerk of the superior court may issue a certificate of adoption that states the date and place of adoption, the birthday of the child, the names of the adoptive parents, and the name the child has taken. Unless the child has been adopted by a stepparent or by a relative, as defined in subdivision (c) of Section 8616.5, the certificate shall not state the name of the birth parents of the child. SEC. 6. Section 8714 of the Family Code is amended to read: 8714. (a) A person desiring 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 birth parent or birth parents resided when the relinquishment of parental rights for the purpose of adoption was signed. Where a child has been adjudged to be a dependent of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, and has thereafter been freed for adoption by the juvenile court, the petition may be filed either in the county where the petitioner resides or in the county where the child was freed for adoption. (b) The court clerk shall immediately notify the department at Sacramento in writing of the pendency of the proceeding and of any subsequent action taken. (c) 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 under subdivision (a). (d) 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. (e) 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. (f) The order of adoption shall contain the child's adopted name, but not the name the child had before adoption. SEC. 7. Section 8714.5 of the Family Code is amended to read: 8714.5. (a) The Legislature finds and declares the following: (1) It is the intent of the Legislature to expedite legal permanency for children who cannot return to their parents and to remove barriers to adoption by relatives of children who are already in the dependency system or who are at risk of entering the dependency system. (2) This goal will be achieved by empowering families, including extended families, to care for their own children safely and permanently whenever possible, by preserving existing family relationships, thereby causing the least amount of disruption to the child and the family, and by recognizing the importance of sibling and half-sibling relationships. (b) A relative desiring to adopt a child may for that purpose file a petition in the county in which the petitioner resides. Where a child has been adjudged to be a dependent of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, and thereafter has been freed for adoption by the juvenile court, the petition may be filed either in the county where the petitioner resides or in the county where the child was freed for adoption. (c) Upon the filing of a petition for adoption by a relative, the clerk of the court shall immediately notify the State Department of Social Services in Sacramento in writing of the pendency of the proceeding and of any subsequent action taken. (d) If the adopting relative 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 under subdivision (b). (e) The caption of the adoption petition shall contain the name of the relative petitioner. The petition shall state the child's name, sex, and date of birth. (f) 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 petitioner shall notify the court of any petition for adoption. The guardianship proceeding shall be consolidated with the adoption proceeding. (g) The order of adoption shall contain the child's adopted name and, if requested by the adopting relative, or if requested by the child who is 12 years of age or older, the name the child had before adoption. (h) For purposes of this section, "relative" means 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. SEC. 8. Section 8714.7 of the Family Code is amended and renumbered 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) 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. (1) Except as provided in paragraph (2), 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. (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. (C) Provisions for the sharing of information about the child in the future. (2) The terms of any postadoption contact agreement entered into pursuant to a petition filed under Section 8714 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 under Section 8714 or 8714.5, the court entering the decree may grant postadoption privileges when an agreement for those privileges has been entered into pursuant to subdivision (a). (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 and 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) By July 1, 2001, 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. 9. Section 8715 of the Family Code is amended to read: 8715. (a) The department or licensed adoption agency, whichever is a party to, or joins in, the petition, shall submit a full report of the facts of the case to the court. (b) If the child has been adjudged to be a dependent of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code, and has thereafter been freed for adoption by the juvenile court, the report required by this section shall describe whether the requirements of subdivision (e) of Section 16002 of the Welfare and Institutions Code have been completed and what, if any, plan exists for facilitation of postadoptive contact between the child who is the subject of the adoption petition and his or her siblings and half siblings. (c) If a petition for adoption has been filed with a postadoption contact agreement pursuant to Section 8616.5, the report shall address whether the postadoption contact agreement has been entered into voluntarily, and whether it is in the best interests of the child who is the subject of the petition. (d) The department may also submit a report in those cases in which a licensed adoption agency is a party or joins in the adoption petition. (e) If a petitioner is a resident of a state other than California, an updated and current homestudy report, conducted and approved by a licensed adoption agency or other authorized resource in the state in which the petitioner resides, shall be reviewed and endorsed by the department or licensed adoption agency, if the standards and criteria established for a homestudy report in the other state are substantially commensurate with the homestudy standards and criteria established in California adoption regulations. SEC. 10. Section 8814.5 of the Family Code is amended to read: 8814.5. (a) After a consent to the adoption is signed by the birth parent or parents pursuant to Section 8801.3 or 8814, the birth parent or parents signing the consent shall have 30 days to take one of the following actions: (1) Sign and deliver to the department or delegated county adoption agency a written statement revoking the consent and requesting the child to be returned to the birth parent or parents. After revoking consent, in cases where the birth parent or parents have not regained custody, or the birth parent or parents have failed to make efforts to exercise their rights under subdivision (b) of Section 8815, a written notarized statement reinstating the original consent may be signed and delivered to the department or delegated county adoption agency, in which case the revocation of consent shall be void and the remainder of the original 30-day period shall commence. After revoking consent, in cases in which the birth parent or parents have regained custody or made efforts to exercise their rights under subdivision (b) of Section 8815 by requesting the return of the child, upon the delivery of a written notarized statement reinstating the original consent to the department or delegated county adoption agency, the revocation of consent shall be void and a new 30-day period shall commence. The birth mother shall be informed of the operational timelines associated with this section at the time of signing of the statement reinstating the original consent. (2) (A) Sign a waiver of the right to revoke consent on a form prescribed by the department in the presence of a representative of the department or delegated county adoption agency. If neither a representative of the department nor a representative of a delegated county adoption agency is reasonably available, the waiver of the right to revoke consent may be signed in the presence of a judicial officer of a court of record if the birth parent is represented by independent legal counsel. "Reasonably available" means that a representative from either the department or the delegated county adoption agency is available to accept the signing of the waiver within 10 days and is within 100 miles of the location of the birth mother. (B) An adoption service provider may assist the birth parent or parents in any activity where the primary purpose of that activity is to facilitate the signing of the waiver with the department, a delegated county agency, or a judicial officer. The adoption service provider or another person designated by the birth parent or parents may also be present at any interview conducted pursuant to this section to provide support to the birth parent or parents. (C) The waiver of the right to revoke consent may not be signed until an interview has been completed by the department or delegated county adoption agency unless the waiver of the right to revoke consent is signed in the presence of a judicial officer of a court of record as specified in this section, in which case the interview and the witnessing of the signing of the waiver shall be conducted by the judicial officer. Within 10 working days of a request made after the department, the delegated county adoption agency, or the court has received a copy of the petition for the adoption and the names and addresses of the persons to be interviewed, the department, the delegated county adoption agency, or the court shall interview, at the department or agency office or the court, any birth parent requesting to be interviewed. However, the interview, and the witnessing of the signing of a waiver of the right to revoke consent of a birth parent residing outside of California or located outside of California for an extended period of time unrelated to the adoption may be conducted in the state where the birth parent is located, by any of the following: (i) A representative of a public adoption agency in that state. (ii) A judicial officer in that state where the birth parent is represented by independent legal counsel. (iii) An adoption service provider. (3) Allow the consent to become a permanent consent on the 31st day after signing. (b) The consent may not be revoked after a waiver of the right to revoke consent has been signed or after 30 days, beginning on the date the consent was signed or as provided in paragraph (1) of subdivision (a), whichever occurs first. SEC. 11. Section 1516.5 is added to the Probate Code, to read: 1516.5. (a) A proceeding to have a child declared free from the custody and control of one or both parents may be brought in the guardianship proceeding pursuant to Part 4 (commencing with Section 7800) of Division 12 of the Family Code, if all of the following requirements are satisfied: (1) One or both parents do not have the legal custody of the child. (2) The child has been in the physical custody of the guardian for a period of not less than two years. (3) The court finds that the child would benefit from being adopted by his or her guardian. In making this determination, the court shall consider all factors relating to the best interest of the child, including but not limited to, the nature and extent of the relationship between all of the following: (A) The child and the birth parent. (B) The child and the guardian, including family members of the guardian. (C) The child and any siblings or half-siblings. (b) The court shall appoint a court investigator or other qualified professional to investigate all factors enumerated in subdivision (a). The findings of the investigator or professional regarding those issues shall be included in the written report required pursuant to Section 7851 of the Family Code. (c) The rights of the parent, including the rights to notice and counsel provided in Part 4 (commencing with Section 7800) of Division 12 of the Family Code, shall apply to actions brought pursuant to this section. (d) This section does not apply to any child who is a dependent of the juvenile court.