BILL ANALYSIS
AB 973
Page 1
Date of Hearing: January 12, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 973 (Strickland) - As Amended: January 7, 2010
SUBJECT : drug-exposed newborns: TemPorary Custody
KEY ISSUE : SHOULD PROSPECTIVE ADOPTIVE PARENTS BE PERMITTED TO
TAKE CUSTODY OF A NEWBORN, WHO HAS BEEN EXPOSED TO ILLEGAL
DRUGS, IF THE NEWBORN IS THE SUBJECT OF A PROPOSED ADOPTION AND
VARIOUS OTHER REQUIREMENTS NECESSARY TO PROTECT THE HEALTH AND
SAFETY OF THE CHILD ARE SATISFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
In 2002, a law was enacted to prevent child protective services
agencies from unnecessarily taking a drug-exposed newborn from
the hospital into the foster care system when an adoption plan
was in place and an adoptive home was waiting for the child.
The law, as revised in 2003 to try and correct implementation
difficulties with the original bill, required that the newborn
be the subject of an adoption petition. However, in practice,
the adoption petition is generally not available until after the
mother and child have been discharged from the hospital. Thus
the current requirements make it difficult, if not impossible,
for prospective adoptive parents to take temporary custody of a
drug-exposed baby at the hospital and keep the child out of the
foster care system. This bill seeks to correct this problem by
allowing a prospective adoptive parent or a licensed adoption
agency to take temporary custody of a drug-exposed newborn if a
number of more workable requirements, designed to ensure that
the child is safe from harm, have been satisfied.
Given the implementation problems that have plagued this law in
the past, this bill rightly proposes that the Department of
Social Services (DSS) study the effects of this bill,
particularly on the health and safety of drug-exposed newborns,
and report all of its findings to the Legislature by January 1,
2014. This will help provide the Legislature with information
about the effectiveness of the law. In addition, the bill
sunsets a year after the report is due - January 1, 2015 - which
AB 973
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will give the Legislature plenty of time to review the report
and determine if the law is working appropriately or if it needs
to be corrected in any way. This bill has no known opposition.
SUMMARY : Limits when a peace officer may, without a warrant,
take a drug-exposed newborn into temporary custody.
Specifically, this bill :
1)Provides that a peace officer may, without warrant, take a
minor who is in the hospital into temporary custody if release
of the minor to a prospective adoptive parent or a
representative of a licensed adoption agency poses an
immediate danger to the child's health or safety.
2)Provides that, notwithstanding #1, a peace officer may not,
without a warrant, take into custody a newborn who is in the
hospital if, among other things, all of the following apply:
a) The newborn or birth mother tested positive for illegal
drugs.
b) The newborn is the subject of a proposed adoption, as
opposed to a petition for adoption.
c) A Health Facilities Minor Release (HFMR) Report has been
completed by the hospital and signed by the placing birth
parent(s), as well as either the prospective adoptive
parent(s) or an authorized representative of a licensed
adoption agency, prior to the discharge of the child or
birth parent and that prior to signing the HFMR Report, the
birth parent(s) have been given a notice that the HFMR
Report does not constitute consent to adoption or
relinquishment of parental rights and that the birth
parents may reclaim the child at any time as provided.
d) Release of the newborn to a prospective adoptive parent
or an authorized representative of a licensed adoption
agency does not pose an immediate danger to the child.
e) The prospective adoptive parents or the representative
of a licensed adoption agency have provided the peace
officer in the hospital to take custody of the newborn with
the following documents: (i) A fully executed HFMR Report;
(ii) a properly executed form developed by DSS stating that
the child is the subject of a proposed adoption; the names
and contact information for all parties; (iii) an agreement
to provide a conformed copy of the adoption request to the
county child welfare agency within five days after filing;
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and (iv) a declaration that the prospective adoptive
parent(s) or representative of the licensed adoption agency
will comply with the requirements of #3, below.
3)If the adoption plan is terminated for any reason, requires
the prospective adoptive parents or the licensed adoption
agency to immediately notify the county child welfare agency.
Requires that before the prospective adoptive parents or the
licensed adoption agency may release the minor to the birth
parent(s) or any designee of the birth parent(s), the county
child welfare agency or law enforcement must have completed an
investigation and determined that release of the minor to the
birth parent or designee will not create an immediate risk to
the health or safety of the minor.
4)Requires that DSS study the effects of the release of a minor
to a prospective adoptive parent or licensed adoption agency
pursuant to this legislation, particularly on the health and
safety of the minor, and report its findings to the
Legislature by January 1, 2014.
5)Sunsets all of these changes effective January 1, 2015.
EXISTING LAW :
1)Allows a peace officer, without a warrant, to take into
temporary custody a minor who is in a hospital when release of
the minor to a parent poses an immediate danger to the child's
health or safety. (Welfare & Institutions Code Section 305.
Unless states otherwise, all further references are to that
code.)
2)Provides that a peace officer may, without a warrant, take a
minor who is in the hospital into temporary custody if release
of the minor to a prospective adoptive parent poses an
immediate danger to the minor's health or safety. (Section
305.6.)
3)Prevents a peace officer, without a warrant, from taking a
child described in #2, above, into custody if all of the
following conditions exist:
a) The minor or the birth mother tested positive for
illegal drugs.
b) The minor is the subject of a petition for adoption.
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c) A HFMR Report has been completed by the hospital and
signed by the placing birth parent(s) and the adoptive
parent, with boxes marked applicable to an independent
adoption or an agency adoption, prior to the discharge of
the child. A copy of an adoption placement agreement
signed by the placing birth parent or parents and the
prospective adoptive parent or parents may be used in place
of the HFMR.
d) The attorney or agency provides documentation stating
that he or she or the agency is representing the
prospective adoptive parents for the purposes of the
adoption.
e) Release of the minor to the prospective adoptive parents
does not pose an immediate danger to the child.
f) Prior to signing the HFMR, the birth parent(s) must be
given a notice, as specified, stating among other things
that the HFMR does not constitute consent to the adoption
or a relinquishment of parental rights, and that the birth
parent(s) may reclaim the minor from the prospective
adoptive parents until an adoption placement agreement or
relinquishment is signed by the birth parent(s).
g) The prospective adoptive parents or their representative
must provide a copy of the HFMR with the signed notice to
the birth parent(s) and a copy of the petition for adoption
to the local child protective services agency or the peace
officer who is at the hospital to take the minor into
temporary custody. (Id.)
COMMENTS : In 2002, a law was enacted to prevent child
protective services agencies from unnecessarily taking a
drug-exposed newborn from the hospital into the foster care
system when an adoption plan was in place and an adoptive home
was waiting for the child. (AB 2279 (La Suer), Chap. 920,
Stats. 2002.) The law, as revised in 2003 to try and correct
implementation difficulties with the original bill, required
that the newborn be the subject of an adoption petition. (AB
962 (La Suer), Chap. 568, Stats. 2003.) However, in practice,
the adoption petition is generally not available until after the
mother and child have been discharged from the hospital. Thus
the current requirements make it difficult, if not impossible,
for prospective adoptive parents to take temporary custody of a
drug-exposed baby at the hospital and keep the child out of the
foster care system. This bill seeks to correct this problem by
allowing a prospective adoptive parent or a licensed adoption
agency to take temporary custody of a drug-exposed newborn if a
AB 973
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number of more workable requirements, designed to ensure that
the child is safe from harm, have been satisfied.
According to the author, this bill is necessary because current
law "regarding adoption is not in sync with California's
adoption process, thus creating problems for a mother's ability
to responsibly place her child in proper care."
Requirements that Must be Satisfied Before a Drug-Exposed
Newborn May be Released to a Prospective Adoptive Parent : This
bill deletes the requirement that there be a petition for
adoption and replaces it with a written form, to be developed by
DSS, that must be signed by the prospective adoptive parents or
representative of a licensed adoption agency stating that the
child is the subject of a proposed adoption; listing the names,
identifying information and contact information for the newborn,
the prospective adoptive parents and each birth parent, to the
extent the information is known; and stating the adoptive
parents' agreement to provide a conformed copy of the adoption
request to the county child welfare agency within five days
after filing.
The DSS form must also include a declaration that, if the
adoption plan is terminated for any reason, the prospective
adoptive parents or representative of a licensed adoption agency
will immediately notify the county child welfare agency.
Furthermore, before the prospective adoptive parents or the
licensed adoption agency may release the child to the birth
parents or any designee of the birth parents, the county child
welfare agency or law enforcement must first complete an
investigation and determine that release of the child to the
birth parent or designee will not create an immediate risk to
the health or safety of the child. The bill also, independent
of the declaration, requires that the prospective adoptive
parents or representative of the licensed adoption agency comply
with these requirements as well. These requirements should help
ensure that the child will remain safe and not fall through
cracks in the system, even if the adoption falls through.
Even with these protections, the prospective adoptive parents or
licensed adoption agency rightly will not be able to take
temporary custody of the newborn if such custody poses an
immediate danger to the child. Additionally, and again also
quite rightly, even if the prospective adoptive parents satisfy
all the requirement of the bill, a peace officer with a warrant
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will always be able to take the newborn into temporary custody.
Therefore, if there is any concern about the child's safety, all
that a peace officer has to do is obtain a warrant, which
committee staff has been told is not difficult for drug-exposed
newborns. If that occurs, a prospective adoptive parent who
wants to take the child into custody will have to wait for a
court hearing to make his or her case for temporary custody.
Together, these provisions should help ensure that the safety of
the newborn remains the most important consideration in any
determination of temporary custody.
Study and Sunset Date Will Help Ensure the Bill Works
Effectively : All stakeholders acknowledge that since this law
was first codified in 2002 it has not, in actuality, worked
effectively to allow prospective adoptive parents to bring their
newborns into safe, loving homes and avoid the foster care
system. The safeguards put in place to help ensure the safety
of the newborns have effectively kept prospective adoptive
parents from being able to take the children. Some
jurisdictions have looked the other way and allowed prospective
adoptive parents to take custody of these children, while others
have followed the letter of the law and have not allowed these
newborns to avoid foster care, even when that was not in the
best interests of the child. Neither option is desirable.
This bill seeks to correct the problems of the earlier law,
while still ensuring the safety of these drug-exposed newborns.
However, given the problems that have plagued this law in the
past, it is not entirely certain how this bill will be
implemented. Therefore, in order to ensure that the proposed
changes work effectively to protect the safety of drug-exposed
newborns, this bill rightly proposes that the Department of
Social Services study the effects of this bill, particularly on
the health and safety of these newborns, and report all of its
findings to the Legislature by January 1, 2014. This will help
provide the Legislature with information about the effectiveness
of the law. In addition, the bill sunsets a year after the
report is due - January 1, 2015 - which will give the
Legislature plenty of time to review the report and determine if
the law is working appropriately or if it needs to be corrected
in any way.
Prior Legislation : SB 302 (Scott), Chap. 627, Stats. 2005,
contained a similar provision to this bill, but that provision
was deleted in the Senate Judiciary Committee; AB 962 (La Suer),
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Chap. 568, Stats. 2003; AB 2279 (La Suer), Chap. 920, Stats.
2002.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334