BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 2020 (Fletcher)
          As Amended June 3, 2010
          Hearing Date: June 15, 2010
          Fiscal: No
          Urgency: No
          KB:jd
                    

                                        SUBJECT
                                           
                                     Family Law

                                      DESCRIPTION 

          This bill, sponsored by the Academy of California Adoption  
          Lawyers, would make several changes to adoption processes and  
          adoptive placement considerations.  

                                      BACKGROUND  

          Every year, the Academy of California Adoption Lawyers (ACAL)  
          seeks to clarify or modify provisions in the Family Code which  
          they have identified as having either technical errors or as  
          being the basis for conflicting court rulings that could  
          potentially prolong the adoption process.  This bill is being  
          sponsored by ACAL for this specific purpose.

                                CHANGES TO EXISTING LAW
           
        1.Existing law  provides that a man is presumed to be a child's  
            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.  Existing law requires that these  
            presumptions be applied gender neutrally.  (Fam. Code Secs.  
            7611, 7650; Elisa B. V. Superior Court (2005) 37 Cal.4th 108.)

             Existing law  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  
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            father-child relationship.  Existing law 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.  (Fam. Code Secs.  
            7630-31.)  

             This bill  would provide 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 would not apply if the conclusive presumption of  
            paternity for a child of a marriage exists.

        2.Existing law  provides that if a mother consents to the adoption  
            of a child, or relinquishes a child or adoption, a petition to  
            terminate the parental rights of the father is required,  
            subject to specified exceptions, and an action to terminate  
            the parental rights of the father shall be set for a hearing.   
            (Fam. Code Sec. 7667.)
           
            This bill  would authorize the court in an action to terminate  
            parental rights to dispense with a hearing and issue an ex  
            parte order terminating parental rights if: (1) the identity  
            or whereabouts of the alleged father is unknown; (2) he has  
            been served with a written notice of his alleged paternity and  
            the potential adoption and has failed to respond; or (3) he  
            has signed a waiver of his right to notice or a denial of  
            paternity.

        3.Existing law  provides that if a child is being considered for  
            adoption, the State Department of Social Services or licensed  
            adoption agency is required to first consider adoptive  
            placement in the home of a relative, unless it is not in the  
            child's best interest, or if other specified conditions exist.  
             Existing law 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 and  
            Institutions Code.  (Fam. Code Sec. 8710.)

             This bill  would additionally exempt a child, who is the  
            subject of an agency adoption where the birth parent(s) have  
            named the prospective adoptive parent(s), from this  
            requirement.  

             This bill  would provide that, except as required by the Indian  
            Child Welfare Act, the refusal of a birth parent to place an  
                                                                      



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            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.  

             This bill  would provide 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.

        4.Existing law  provides, if a parent is seeking to relinquish a  
            child or execute an adoption placement agreement, the State  
            Department of Social Services, licensed adoption agency, or  
            adoption service provider is required to ask the child and the  
            child's parent or custodian whether the child is, or may be, a  
            member of an Indian tribe.  Existing law provides that these  
            entities are required to send a specified notice and a request  
            for confirmation of the child's Indian status to any parent or  
            custodian of the child, and to any Indian tribe of which the  
            child is, or may be, a member.  (Fam. Code Sec. 8620.)

             This bill  would additionally include an attorney for the  
            prospective adoptive parents among the entities that are  
            required to send this notice and request for confirmation of a  
            child's Indian status.

        5.Existing law  provides that in each case of stepparent adoption,  
            the probation officer, qualified court investigator, licensed  
            clinical social worker, licensed marriage family therapist, or  
            the county welfare department is required to conduct an  
            investigation.  (Fam. Code Sec. 9001.)

             This bill  would additionally include a licensed adoption  
            agency among the entities that are required to conduct the  
            investigation.

        6.Existing law  provides that a court may appoint a guardian of the  
            person or estate of a minor child if it appears necessary or  
            convenient, as specified.  Existing law provides that a  
            proceeding to have the child declared free from the custody  
            and control of one or both parents may be brought in the  
            guardianship proceeding if specified requirements are met,  
            including a requirement that the child have been in the  
            physical custody of the guardian for a period of not less than  
            two years.  (Prob. Code Sec. 1516.5.)

             Existing law  provides that a guardianship case is to be  
                                                                      



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            consolidated with an adoption case if the same child is the  
            subject of each action.  Existing law provides that the  
            consolidated case should be heard in the court where the  
            adoption is pending.   (Prob. Code Sec. 1510.)

             This bill  would provide that a proceeding to have a child who  
            is the subject of a guardianship declared free from the  
            custody or control of one or both parents may be brought  
            within the existing guardianship proceeding, in an adoption  
            action, or in a separate action filed for that purpose.

                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author and sponsor, this bill seeks to address  
          technical issues that may cause families pursuing adoptions to  
          spend scarce resources on legal fees due to inconsistencies in  
          state court and statutory laws.  
            
          2.  Bill would streamline the processes for determining  
            parent-child relationships

           A man married to the birth mother is presumed to be the natural  
          father of a child if the child is born during the marriage, or  
          within 300 days after the marriage is terminated.  (Fam. Code  
          Sec. 7611.)  Current law also recognizes presumed fathers where  
          the couple is unmarried, but have attempted to do so prior to  
          the child's birth.  A man may also consent to be named as the  
          child's father on the birth certificate or openly hold out the  
          child as his natural child.  (Id.)  A presumed birth father has  
          the same rights and responsibilities as a birth mother and an  
          adoption cannot proceed without the presumed father's consent,  
          unless his parental rights have been terminated or he has  
          voluntarily relinquished the child for adoption.  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 a man who is identified by the birth mother  
          as the potential birth father of a child.  Alleged fathers must  
          be notified of the adoption petition, but a court may end their  
          parental rights if they fail to bring an action to establish  
          paternity within 30 days of being served with notice of an  
          adoption proceeding.  (Fam. Code Sec. 7662.)  Alleged fathers  
          may also consent to an adoption, waive notice of the proceeding,  
                                                                      



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          sign a denial of paternity, or voluntarily relinquish a child  
          for adoption.  (Id.)

          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  
          Adoption of Kelsey S., 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.  (Adoption  
          of Kelsey S. (1992) 1 Cal.4th 816.)

          This bill would eliminate the procedural distinctions for  
          alleged and presumed parents, thereby creating one consistent  
          procedural framework for establishing and terminating the rights  
          of presumed and alleged parents.  This change is consistent with  
          recent case law which has expanded rights of alleged parents.

              3.   Hearing would not be mandated in specified circumstances
           
          As previously stated, notice of a proposed or pending adoption  
          must be provided to any man that is alleged to be or could be  
          the father of the child to be adopted or relinquished for  
          adoption.  Notice must be given in accordance with the  
          provisions of the Code of Civil Procedure for the service of  
          process in a civil action, and must be given at least ten days  
          before the hearing.  (Fam. Code Sec. 7666.)  

          Existing law further requires the court to set a hearing on  
          every petition to terminate parental rights of alleged fathers.   
           However, there are instances when such a hearing is, in  
          practice, of little value because it involves an unknown father  
          or a father who cannot be located.  In these instances, there is  
          no way to serve notice of a hearing to terminate parental rights  
          on the fathers.  If a father is known, but his whereabouts are  
          unknown, the court may dispense with notice for the hearing.   
          (Fam. Code Sec. 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.  (Fam.  
                                                                      



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          Code Sec. 7660.5.)  Further, no notice of the 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 within 30 days.  (Fam. Code Sec. 7664.)

          In all of above-described situations, the alleged father will  
          not receive notice of the termination of parental rights  
          hearing, since, for the various reasons discussed, no further  
          notice is required.  Because the father or alleged father will  
          not receive notice of the hearing to terminate parental rights,  
          he cannot possibly appear at the hearing.  However, under  
          current law, the court must still set the termination of  
          parental rights for hearing.  Accordingly, this bill would allow  
          the court to dispense with a hearing and issue an ex parte order  
          terminating parental rights only in these specified  
          circumstances where the alleged father will not have, and is not  
          required to have, notice of the proceeding. 

          While it appears that neither the father nor the court receives  
          any benefit from holding these hearings, this committee may wish  
          to inquire of the author whether alleged fathers are provided  
          with sufficient information in the initial notice of the  
          proposed adoption as to the consequences for failing to bring a  
          timely action to establish paternity. 

              4.   Bill would correct a conflict regarding voluntary  
               adoption placements
           
          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 situation, 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.  (Fam. Code Sec. 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.  (Fam. Code Sec. 8710.)  This  
          is in direct conflict with the provision that requires the  
          agency to honor an adoptive parent's directive in the  
          relinquishment.

                                                                      



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          In order to correct this inconsistency, this bill would  
          specifically exempt a relinquishment to specific birth parents  
          from the requirement to first consider relative placement.  The  
          bill would also provide that, except as required by the Indian  
          Child Welfare Act (ICWA), 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.  This bill would further clarify that these provision  
          only apply to voluntary adoption placements, and not dependency  
          adoptions.

           5.Bill would authorize attorneys for prospective adoptive  
            parents to send ICWA notice
           
          Under existing law, if a parent is seeking to relinquish a child  
          or execute an adoption placement agreement, the State Department  
          of Social Services, licensed adoption agency, or adoption  
          service provider is required to ask the child and the child's  
          parent or custodian whether the child is, or may be, a member of  
          an Indian tribe.  These entities are also required to send a  
          specified notice and a request for confirmation of the child's  
          Indian status to any parent or custodian of the child, and to  
          any Indian tribe of which the child is, or may be, a member.  

          According to the sponsor, in many cases, adoptive parents are  
          represented by attorneys who are willing and able to send these  
          notices.  This bill would accordingly authorize attorneys for  
          the prospective adoptive parents to send the required ICWA  
          notices. 

           6.Bill would authorize licensed adoption agencies to conduct  
            step-parent adoption investigations
           
          Current law requires specified individuals, including probation  
          officers, court investigators, licensed clinical social worker  
          and licensed marriage therapists to conduct an investigation in  
          each case of stepparent adoption.  The court may not make an  
          order of adoption until after a report and recommendation on the  
          stepparent adoption has been filed and considered by the court.   
          (Fam. Code Sec. 9001.)  The investigation is intended to assure  
          the court that the adoption is in the best interest of the  
          child.

          According to the sponsor, many courts require fingerprint  
          clearances for the petitioning step-parent, which social workers  
          and marriage therapists are unable to obtain because they lack  
                                                                      



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          the authority to contract with the Department of Justice for  
          these clearances.  However, licensed adoption agencies do have  
          this authority.  This bill would accordingly authorize licensed  
          adoption agencies to conduct step-parent adoption  
          investigations, which would provide for resources for  
          step-parents in counties where fingerprint clearances are  
          required.

              7.   Bill would make a clarification regarding guardianship  
               and adoption proceedings
           
          Under current law, the court may terminate parental rights where  
          a child has been in a guardianship for two years, the guardian  
          wishes to adopt the child, and the court finds that the adoption  
          is in the child's best interests.  (Prob. Code Sec. 1516.5.)   
          Current law also requires that the petition to terminate  
          parental rights must be filed in the guardianship proceeding  
          which is held in probate court.  However, Probate Code Section  
          1510(h) provides that a guardianship case is to be consolidated  
          with an adoption case if the same child is the subject of each  
          action, and the consolidated case should be heard in the court  
          where the adoption is pending.   

          According to the sponsor, the discrepancy in the statutes has  
          resulted in disparate procedures depending on the court's  
          interpretation on which provision is controlling.  This bill  
          would provide that the petition to terminate parental rights for  
          a child under guardianship may be brought within the existing  
          guardianship proceeding, in an adoption action, or in a separate  
          action filed for that specific purpose.  This would permit the  
          petition to be filed in the court most appropriate for the  
          particular case.


           Support  :  Family Law Section of the State Bar

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Academy of California Adoption Lawyers

           Related Pending Legislation  :  None Known

           Prior Legislation  :  SB 1726 (Scott, Chapter 534, Statutes of  
          2008) made several substantive and technical changes to adoption  
                                                                      



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          law, including providing that consolidated guardianship and  
          adoption cases shall be heard and decided by the court in which  
          the adoption is pending.  

          AB 538 (Cardozo, Chapter 353, Statutes of 2001), among other  
          things, authorized licensed clinical social workers and licensed  
          marriage therapists to conduct step-parent adoption  
          investigations.

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Floor (Ayes 72, Noes 0)

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