BILL NUMBER: SB 1325 CHAPTERED
BILL TEXT
CHAPTER 806
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2006
APPROVED BY GOVERNOR SEPTEMBER 30, 2006
PASSED THE SENATE AUGUST 23, 2006
PASSED THE ASSEMBLY AUGUST 10, 2006
AMENDED IN ASSEMBLY JUNE 15, 2006
AMENDED IN SENATE MAY 2, 2006
AMENDED IN SENATE APRIL 18, 2006
INTRODUCED BY Senator Scott
FEBRUARY 16, 2006
An act to amend Sections 7620, 7630, 7633, 7825, and 8700 of, and
to add Sections 7606 and 8613.5 to, the Family Code, relating to
adoption.
LEGISLATIVE COUNSEL'S DIGEST
SB 1325, Scott Adoption.
(1) Existing law requires a person who may have conceived a child
by an act of intercourse to submit to the jurisdiction of the courts
of this state and specifies the venue where an action may be filed by
or against that person. Existing law permits a child, a child's
natural mother, a presumed father or other interested party, as
specified, to bring an action to determine the existence or
nonexistence of a father and child relationship.
This bill would additionally require a person who causes
conception through assisted reproduction in this state to submit to
the jurisdiction of the courts of this state. This bill would
additionally permit a person who enters an assisted reproduction
agreement, as specified, to bring an action to establish a parent and
child relationship.
(2) Under existing law, an action to determine a parent and child
relationship may be brought before the birth of that child.
This bill would permit the court to enter an order or judgment
based on that action before the birth of the child. This bill would
further prohibit enforcement of that order or judgment until the
birth of the child.
(3) Under existing law, if a parent is convicted of a felony, a
proceeding to terminate parental rights may be filed.
This bill would additionally permit the court, as part of a
proceeding to terminate parental rights, to consider a parent's
criminal record prior to the felony conviction, as specified, in
making a finding that a parent is unfit to have future custody or
control of his or her child.
(4) Under existing law, if a proceeding to terminate the parental
rights of a presumed father has been filed, an action to determine
the parent and child relationship between the presumed father and
child is required to be consolidated with the termination proceeding.
This bill would require an action to determine the existence or
nonexistence of a parent and child relationship between a presumed
father and child to be consolidated with a proceeding that has been
filed for the emancipation of the child.
(5) Under existing law, a birth parent may relinquish a child to a
licensed adoption agency for the adoption of that child. Existing
law requires the licensed adoption agency to forward a written
relinquishment signed by the birth parent to the Department of Social
Services. Under existing law, that relinquishment is final within 10
business days after the relinquishment is filed with the department,
unless a longer period of time is necessary, as specified.
This bill would require the relinquishment to be final 10 business
days after the relinquishment is filed with the department unless
the department sends written acknowledgment of receipt of the
relinquishment before that date.
(6) Under existing law, if a prospective adoptive parent is in
military service or service for another recognized entity, as
specified, and shows by satisfactory evidence that it is impossible
or impracticable to appear in court for an adoption proceeding, the
prospective adoptive parent may make his or her appearance at the
proceeding through an attorney.
This bill would additionally permit a prospective adoptive parent
to appear at an adoption proceeding through an attorney if the
prospective adoptive parent shows by satisfactory evidence that it is
impossible or impracticable to appear at the adoption proceeding.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7606 is added to the Family Code, to read:
7606. As used in this part, the following definitions shall
apply:
(a) "Assisted reproduction" means conception by any means other
than sexual intercourse.
(b) "Assisted reproduction agreement" means a written contract
that includes a person who intends to be the legal parent of a child
or children born through assisted reproduction and that defines the
terms of the relationship between the parties to the contract.
SEC. 2. Section 7620 of the Family Code is amended to read:
7620. (a) A person who has sexual intercourse or causes
conception with the intent to become a legal parent by assisted
reproduction 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 or assisted reproduction.
(b) An action under this part shall be brought in one of the
following:
(1) The county in which the child resides or is found.
(2) The county in which a licensed California adoption agency
maintains an office if that agency brings the action.
(3) If the father is deceased, the county in which proceedings for
probate of the estate of the father of the child have been or could
be commenced.
SEC. 3. Section 7630 of the Family Code is amended to read:
7630. (a) A child, the child's natural mother, a man presumed to
be the child's father under subdivision (a), (b), or (c) of Section
7611, an adoption agency to whom the child has been relinquished or a
prospective adoptive parent of the child 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) or (f) 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) (1) If a proceeding has been filed under Chapter 2 (commencing
with Section 7820) of Part 4, an action under subdivision (a) or (b)
shall be consolidated with that proceeding. The parental rights of
the presumed father shall be determined as set forth in Sections 7820
through 7829, inclusive.
(2) If a proceeding pursuant to Section 7662 has been filed under
Chapter 5 (commencing with Section 7660), an action under subdivision
(c) shall be consolidated with that proceeding. The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664.
(3) The consolidated action under paragraph (1) or (2) shall be
heard in the court in which the proceeding is filed, unless the court
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.
(e) A party to an assisted reproduction agreement may bring an
action at any time to establish a parent and child relationship
consistent with the intent expressed in that assisted reproduction
agreement.
SEC. 4. Section 7633 of the Family Code is amended to read:
7633. An action under this chapter may be brought, an order or
judgment may be entered before the birth of the child, and
enforcement of that order or judgment shall be stayed until the birth
of the child.
SEC. 5. Section 7825 of the Family Code is amended to read:
7825. (a) A proceeding under this part may be brought where both
of the following requirements are satisfied:
(1) The child is one whose parent or parents are convicted of a
felony.
(2) The facts of the crime of which the parent or parents were
convicted are of such a nature so as to prove the unfitness of the
parent or parents to have the future custody and control of the
child. In making a determination pursuant to this section, the court
may consider the parent's criminal record prior to the felony
conviction to the extent that the criminal record demonstrates a
pattern of behavior substantially related to the welfare of the child
or the parent's ability to exercise custody and control regarding
his or her child.
(b) The mother of a child may bring a proceeding under this part
against the father of the child, where the child was conceived as a
result of an act in violation of Section 261 of the Penal Code, and
where the father was convicted of that violation. For purposes of
this subdivision, there is a conclusive presumption that the father
is unfit to have custody or control of the child.
SEC. 6. Section 8613.5 is added to the Family Code, to read:
8613.5. (a) (1) If it is impossible or impracticable for either
prospective adoptive parent to make an appearance in person, and the
circumstances are established by clear and convincing documentary
evidence, the court may, in its discretion, waive the personal
appearance of the prospective adoptive parent. The appearance may be
made for the prospective adoptive parent by counsel, commissioned and
empowered in writing for that purpose. The power of attorney may be
incorporated in the adoption petition.
(2) For purposes of this section, if the circumstances that make
an appearance in person by a prospective adoptive parent impossible
or impracticable are temporary in nature or of a short duration, the
court shall not waive the personal appearance of that prospective
adoptive parent.
(b) If the prospective adoptive parent is permitted to appear by
counsel, the agreement may be executed and acknowledged by the
counsel, or may be executed by the absent party before a notary
public, or any other person authorized to take acknowledgments
including the persons authorized by Sections 1183 and 1183.5 of the
Civil Code.
(c) If the prospective adoptive parent is permitted to appear by
counsel, or otherwise, the court may, in its discretion, cause an
examination of the prospective adoptive parent, other interested
person, or witness to be made upon deposition, as it deems necessary.
The deposition shall be taken upon commission, as prescribed by the
Code of Civil Procedure, and the expense thereof shall be borne by
the petitioner.
(d) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition shall be filed in the office of the clerk of
the court.
(e) The provisions of this section permitting an appearance by
counsel are equally applicable to the spouse of a prospective
adoptive parent who resides with the prospective adoptive parent
outside this state.
(f) If, pursuant to this section, neither prospective adoptive
parent need appear before the court, the child proposed to be adopted
need not appear. If the law otherwise requires that the child
execute any document during the course of the hearing, the child may
do so through counsel.
(g) If none of the parties appears, the court may not make an
order of adoption until after a report has been filed with the court
pursuant to Section 8715, 8807, 8914, or 9001.
SEC. 7. Section 8700 of the Family Code is amended to read:
8700. (a) Either birth parent may relinquish a child to the
department or a licensed adoption agency for adoption by a written
statement signed before two subscribing witnesses and acknowledged
before an authorized official of the department or agency. The
relinquishment, when reciting that the person making it is entitled
to the sole custody of the child and acknowledged before the officer,
is prima facie evidence of the right of the person making it to the
sole custody of the child and the person's sole right to relinquish.
(b) A relinquishing parent who is a minor has the right to
relinquish his or her child for adoption to the department or a
licensed adoption agency, and the relinquishment is not subject to
revocation by reason of the minority.
(c) If a relinquishing parent resides outside this state and the
child is being cared for and is or will be placed for adoption by the
department or a licensed adoption agency, the relinquishing parent
may relinquish the child to the department or agency by a written
statement signed by the relinquishing parent before a notary on a
form prescribed by the department, and previously signed by an
authorized official of the department or agency, that signifies the
willingness of the department or agency to accept the relinquishment.
(d) If a relinquishing parent and child reside outside this state
and the child will be cared for and will be placed for adoption by
the department or a licensed adoption agency, the relinquishing
parent may relinquish the child to the department or agency by a
written statement signed by the relinquishing parent, after that
parent has satisfied the following requirements:
(1) Prior to signing the relinquishment, the relinquishing parent
shall have received, from a representative of an agency licensed or
otherwise approved to provide adoption services under the laws of the
relinquishing parent's state of residence, the same counseling and
advisement services as if the relinquishing parent resided in this
state.
(2) The relinquishment shall be signed before a representative of
an agency licensed or otherwise approved to provide adoption services
under the laws of the relinquishing parent's state of residence
whenever possible or before a licensed social worker on a form
prescribed by the department, and previously signed by an authorized
official of the department or agency, that signifies the willingness
of the department or agency to accept the relinquishment.
(e) (1) The relinquishment authorized by this section has no
effect until a certified copy is sent to, and filed with, the
department. The licensed adoption agency shall send that copy by
certified mail, return receipt requested, or by overnight courier or
messenger, with proof of delivery, to the department no earlier than
the end of the business day following the signing thereof. The
relinquishment shall be final 10 business days after receipt of the
filing by the department, unless any of the following apply:
(A) The department sends written acknowledgment of receipt of the
relinquishment prior to the expiration of that 10-day period, at
which time the relinquishment shall be final.
(B) A longer period of time is necessary due to a pending court
action or some other cause beyond control of the department.
(2) After the relinquishment is final, it may be rescinded only by
the mutual consent of the department or licensed adoption agency to
which the child was relinquished and the birth parent or parents
relinquishing the child.
(f) The relinquishing parent may name in the relinquishment the
person or persons with whom he or she intends that placement of the
child for adoption be made by the department or licensed adoption
agency.
(g) Notwithstanding subdivision (e), if the relinquishment names
the person or persons with whom placement by the department or
licensed adoption agency is intended and the child is not placed in
the home of the named person or persons or the child is removed from
the home prior to the granting of the adoption, the department or
agency shall mail a notice by certified mail, return receipt
requested, to the birth parent signing the relinquishment within 72
hours of the decision not to place the child for adoption or the
decision to remove the child from the home.
(h) The relinquishing parent has 30 days from the date on which
the notice described in subdivision (g) was mailed to rescind the
relinquishment.
(1) If the relinquishing parent requests rescission during the
30-day period, the department or licensed adoption agency shall
rescind the relinquishment.
(2) If the relinquishing parent does not request rescission during
the 30-day period, the department or licensed adoption agency shall
select adoptive parents for the child.
(3) If the relinquishing parent and the department or licensed
adoption agency wish to identify a different person or persons during
the 30-day period with whom the child is intended to be placed, the
initial relinquishment shall be rescinded and a new relinquishment
identifying the person or persons completed.
(i) If the parent has relinquished a child, who has been found to
come within Section 300 of the Welfare and Institutions Code or is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code, to the
department or a licensed adoption agency for the purpose of adoption,
the department or agency accepting the relinquishment shall provide
written notice of the relinquishment within five court days to all of
the following:
(1) The juvenile court having jurisdiction of the child.
(2) The child's attorney, if any.
(3) The relinquishing parent's attorney, if any.
(j) The filing of the relinquishment with the department
terminates all parental rights and responsibilities with regard to
the child, except as provided in subdivisions (g) and (h).
(k) The department shall adopt regulations to administer the
provisions of this section.