BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 2020
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          AB 2020 (Fletcher)
          As Amended April 5, 2010
          Majority vote 

           JUDICIARY           10-0                                        
          |Ayes:|Feuer, Tran, Brownley,    |     |                          |
          |     |Evans, Hagman, Jones,     |     |                          |
          |     |Knight, Lieu, Monning,    |     |                          |
          |     |Nava                      |     |                          |
          |     |                          |     |                          |
           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  
            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 if any of the following apply: 

             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; or,

             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  


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            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  

           EXISTING LAW  : 

          1)Defines a man as a presumed father if, among other things:  a)  
            he has signed a declaration of paternity; b) he was married to  
            the child's mother and the child was born within 300 days of  
            the marriage; c) he attempted to marry the child's mother; or,  
            d) 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.)

          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  
            existence of a father-child relationship for a child who does  
            not have a presumed father or whose presumed father is  

          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.  

          4)Requires 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.  

           FISCAL EFFECT  :  None

           COMMENTS  :  This is the Academy of California Adoption Lawyers'  


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          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.  

          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.   
          While the statutory scheme generally refers to presumed fathers,  
          the presumptions apply equally to presumed mothers.  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  
          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.  

          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.

          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  


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          rights.  Alternatively, if a father is known, but his  
          whereabouts are unknown, the court may dispense with notice.   
          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  

          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.  

          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  


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          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.

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

                                                                FN: 0003812