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 ----------------------------------------------------------------- |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 Page 2 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 Page 5 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