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 (more) AB 2020 (Fletcher) Page 2 of ? 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 AB 2020 (Fletcher) Page 3 of ? 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 AB 2020 (Fletcher) Page 4 of ? 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, AB 2020 (Fletcher) Page 5 of ? 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. AB 2020 (Fletcher) Page 6 of ? 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. AB 2020 (Fletcher) Page 7 of ? 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 AB 2020 (Fletcher) Page 8 of ? 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 AB 2020 (Fletcher) Page 9 of ? 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) **************