BILL NUMBER: SB 1357 CHAPTERED 09/29/04 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.