BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2020
                                                                  Page  1

          Date of Hearing:  March 23, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 2020 (Fletcher) - As Amended: March 15, 2010

                              As Proposed to Be Amended

           SUBJECT  :  ADOPTION

           KEY ISSUE  :  SHOULD SEVERAL CHANGES BE MADE TO THE ADOPTION  
          PROCESS TO ELIMINATE CONFLICTS BETWEEN STATUTES AND BETWEEN CASE  
          LAW AND STATUTE? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS
          
          This is the annual adoption bill sponsored by the Academy of  
          California Adoption Lawyers.  According to the author, this  
          bill, which makes three changes to the law, will reduce both  
          costs for adoptive parents and court time by correcting  
          inconsistent and unclear provisions of law.  First, the bill  
          creates a consistent procedural framework for establishing and  
          terminating the rights of presumed and alleged fathers, making  
          California's statutory structure consistent with case law's  
          recognition of expanded rights for alleged parents.  Second, the  
          bill allows courts to dispense with a hearing and make the order  
          ex parte when terminating parental rights of parents who are  
          unknown, cannot be located or who have otherwise waived their  
          right to contest the proceeding,.  Finally, the bill eliminates  
          a conflict in existing law by allowing a birth parent in an  
          agency adoption to choose a prospective adoptive family, even if  
          a relative would also be a suitable placement.  There is no  
          opposition to these changes.   

           SUMMARY  :  Makes changes to adoption processes and adoptive  
          placement considerations.  Specifically,  this bill  :

          1)Provides that the same process be used to determine the  
            existence of a parent-child relationship, regardless of  
            whether the child has a presumed parent or not, including the  
            same time period for bringing the action.  This process does  
            not apply if the conclusive presumption of paternity for a  








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            child of a marriage exists.

          2)Allows the court to dispense with a hearing to terminate  
            parental rights and may instead issue an ex parte order  
            terminating those rights in the following situations:

             a)   The identity or whereabouts of the father are unknown.
             b)   The alleged father has validly executed a waiver of the  
               right to notice or a waiver or denial of paternity.
             c)   The alleged father has been served with written notice  
               of his alleged paternity and the proposed adoption and has  
               failed to bring an action to determine the existence of a  
               parent-child relationship, as required.

          3)Exempts, from the requirement that the social services  
            department or licensed adoption agency must consider placing  
            an adoptive child with a relative or siblings unless it is not  
            in the child's best interest, a child who is subject to an  
            agency adoption in which the birth parents have named the  
            prospective adoptive parent.  Provides that, except as  
            required by the Indian Child Welfare Act, the refusal of a  
            birth parent to place an adoptive child with relatives or  
            siblings is a sufficient basis for finding that such a  
            placement in not in the best interests of the child.  Provides  
            that this provision should not be construed to require a child  
            who has been placed for adoption to be removed from the  
            adoptive home in order to be placed with siblings or other  
            relatives.

           EXISTING LAW  : 

          1)Defines a man as a presumed father if, among other things:   
            (a) he has signed a declaration of paternity; (c) he was  
            married to the child's mother and the child was born within  
            300 days of the marriage; (d) he attempted to marry the  
            child's mother; or (e) he holds the child out as his own.   
            Requires that these presumptions be applied gender neutrally.   
            (Family Code Sections 7611, 7650; Elisa B. V. Superior Court  
            (2005) 37 Cal.4th 108.  All further statutory references are  
            to the Family Code.)

          2)Provides that, for a child with a presumed father, a child,  
            the child's natural mother or the presumed father may bring an  
            action to determine the existence of a father-child  
            relationship.  Provides a separate process to determine the  








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            existence of a father-child relationship for a child who does  
            not have a presumed father or whose presumed father is  
            deceased.  (Sections 7630-31)  

          3)Requires that an action to terminate the parental rights of a  
            father must be set for hearing not more than 45 days after the  
            petition to terminate is filed.  (Section 7667.)

          4)Requires that that if a child is being considered for adoption  
            by the social service department or a licensed adoption  
            agency, the department or agency must first consider placement  
            in the home of a relative, as specified.  Exempts from this  
            provision a child who has been adjudged a dependent of the  
            juvenile court, for which there are relative placement  
            requirements under the Welfare & Institutions Code.  (Section  
            8710.)

           COMMENTS  :  This is the Academy of California Adoption Lawyers'  
          annual adoption bill.  According to the author, this bill will  
          reduce both costs for adoptive parents and court time by  
          correcting inconsistent and unclear provisions of law.  

           Streamlining the Processes for Determining Parent-Child  
          Relationships for Alleged and Presumed Parents  :  The bill seeks  
          to treat alleged and presumed parents the same for purposes of  
          determining the existence of a parent-child relationship.  A man  
          is presumed to be a child's legal father in several scenarios.   
          A man is a presumed father if he has signed a declaration of  
          paternity or attempted to marry the child's mother.  He may also  
          be a presumed father if he has received a child into his home  
          and openly held out the child as his own.  (Section 7611.)   
          While the statutory scheme generally refers to presumed fathers,  
          the presumptions apply equally to presumed mothers.  (See, e.g.,  
          Elisa B. V. Superior Court (2005) 37 Cal.4th 108.)  An alleged  
          father is generally a biological father who does not qualify as  
          a presumed father.  

          Existing law provides slightly different statutory schemes for  
          alleged and presumed fathers to seek legal recognition of their  
          relationship with the child or to terminate their parental  
          rights.  However, the California Supreme Court has held that  
          alleged fathers have a constitutional right to gain custody of  
          their children, even if they do not satisfy one of the  
          conditions necessary to be recognized as a presumed father.  In  
          that case the court held that the statutory scheme that  








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          required, for purposes of adoption, consent of mothers and  
          presumed fathers, but allowed for termination of parental rights  
          of alleged fathers on the basis of the child's best interests,  
          violated the alleged father's constitutional rights.  (Adoption  
          of Kelsey S. (1992) 1 Cal.4th 816.)

          This bill eliminates that distinction and, for procedural  
          purposes, treats alleged parents like presumed parents.  This  
          change makes California's statutory structure consistent with  
          case law's expanded rights of alleged parents and creates a  
          consistent procedural framework for establishing and terminating  
          the rights of presumed and alleged fathers.

           Unproductive Hearing No Longer Mandated  :  Existing law requires  
          that a petition to terminate parental rights must be set for a  
          hearing.  However, there are instances when such a hearing is  
          effectively meaningless because it is impossible for the parent  
          to participate in the hearing.  For example, if the identity of  
          the father is unknown, there are steps that must be taken to try  
          and identify the father or any possible father.  However, if,  
          after inquiry, the father remains unknown, the court must enter  
          an order terminating parental rights.  (Section 7665.)   
          Alternatively, if a father is known, but his whereabouts are  
          unknown, the court may dispense with notice.  (Section 7666.)   
          Similarly, no notice is required for an alleged father who has  
          validly executed a denial of paternity or a waiver of the right  
          to notice of the action to terminate parental rights.  Finally,  
          no further notice of proceedings is required for an alleged  
          father who, in response to a required notice of his alleged  
          paternity and of a proposed adoption, fails to bring the  
          required action to establish a parent-child relationship  
          pursuant to Section 7630 within 30 days.  

          In all of these situations, the alleged father will not receive  
          notice of the termination hearing, since, for the various  
          reasons discussed above, no further notice is required.  Thus,  
          the father or alleged father will not receive notice of the  
          hearing to terminate parental rights and, as a result, cannot  
          possibly appear at the hearing.  Neither the father nor the  
          court receives any benefit from holding these hearings and it is  
          an unnecessary expenditure of scarce judicial resources.  Thus,  
          this bill correctly allows the court to dispense with the  
          hearing and issue an ex parte order terminating parental rights  
          in cases where the alleged father will not have notice of the  
          proceeding.    








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           Ensuring a Birth Parent's Freedom to Choose Adoptive Parents in  
          Appropriate Situations  :  This bill also seeks to fix a conflict  
          in existing law regarding placement of an adoptive child.  In an  
          agency adoption, a birth parent may relinquish the child to the  
          adoption agency and the agency may choose an adoptive family for  
          placement.  Alternatively, the birth parent can choose the  
          adoptive family and name them in the relinquishment.  In this  
          case, the agency must place the child with the named adoptive  
          parents.  If that placement is not available for any reason, the  
          agency must give the birth parent the opportunity to rescind the  
          relinquishment or choose an alternative placement.  (Section  
          8700.)  

          Existing law also requires that before an adoptive child can be  
          placed, the adoption agency should consider placement of the  
          child in the home of a relative.  This is in direct conflict  
          with the provision that requires the agency to honor an adoptive  
          parent's directive in the relinquishment.

          To correct that inconsistency, this bill specifically exempts,  
          from the requirement to first consider relative placement, a  
          relinquishment to specific birth parents.  The bill also  
          provides that, except as required by the Indian Child Welfare  
          Act, a birth parent's refusal to place a child with relatives or  
          siblings is sufficient grounds for the agency to find that such  
          a placement is not in the child's best interests.  The sponsor  
          believes these changes should help ensure that agencies can  
          comply with the law and will help minimize the instances birth  
          parents lie to adoption agencies to prevent an outcome they do  
          not want.

           Proposed Amendment  :  Given that this provision is limited to  
          agency adoptions, the additional exemption in the bill for  
          independent adoptions is unnecessary.  As a result, the author  
          has graciously agreed to remove the reference to independent  
          adoptions:

          On page 9, line 15, delete "or Section 8801"
                  
           REGISTERED SUPPORT / OPPOSITION  :   

           Support  

          Academy of California Adoption Lawyers (sponsor)








                                                                  AB 2020
                                                                  Page  6

          Family Law Section of the State Bar

           Opposition 
           
          None on file
           

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