BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 973
                                                                  Page  1

          ASSEMBLY THIRD READING
          AB 973 (Audra Strickland) 
          As Amended  January 27, 2010
          Majority vote 

           JUDICIARY           9-0         APPROPRIATIONS      17-0        
           
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          |Ayes:|Feuer, Tran, Brownley,    |Ayes:|De Leon, Conway, Ammiano, |
          |     |Evans, Hagman, Jones,     |     |Bradford, Charles         |
          |     |Knight, Lieu, Monning     |     |Calderon, Coto, Davis,    |
          |     |                          |     |Fuentes, Hall, Harkey,    |
          |     |                          |     |Miller, Nielsen, John A.  |
          |     |                          |     |Perez, Skinner, Solorio,  |
          |     |                          |     |Audra Strickland,         |
          |     |                          |     |Torlakson                 |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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) above, 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  








                                                                  AB 973
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               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; and,

             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 the Department of  
               Social Services (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; 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)Sunsets all of these changes effective January 1, 2013.

           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.  

          2)Provides that a peace officer may, without a warrant, take a  








                                                                  AB 973
                                                                  Page  3

            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.  

          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;

             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); and,

             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.  









                                                                  AB 973
                                                                  Page  4

           FISCAL EFFECT  :  None

           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), Chapter 920,  
          Statutes of 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), Chapter 568, Statutes of 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 number of more workable  
          requirements have been satisfied.

          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  








                                                                  AB 973
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          of the declaration, requires that the prospective adoptive  
          parents or representative of the licensed adoption agency comply  
          with these requirements as well.  

          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.   
          However, given the problems that have plagued this law in the  
          past, it is not entirely certain how this bill will be  
          implemented.  Therefore, the bill sunsets on January 1, 2013,  
          which will give the Legislature the ability, at that time, to  
          determine if the law is working appropriately or if it needs to  
          be corrected in any way.

           Analysis Prepared by  :    Leora Gershenzon / JUD. / (916)  
          319-2334                                          FN: 0003644