BILL ANALYSIS
AB 2020
Page 1
ASSEMBLY THIRD READING
AB 2020 (Fletcher)
As Amended April 5, 2010
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Hagman, Jones, | | |
| |Knight, Lieu, Monning, | | |
| |Nava | | |
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| | | | |
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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
AB 2020
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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
relatives.
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
deceased.
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
proceeding.
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)
319-2334
FN: 0003812