BILL ANALYSIS                                                                                                                                                                                                    



                                                                AB 2020
                                                                Page  1
        CONCURRENCE IN SENATE AMENDMENTS
        AB 2020 (Fletcher)
        As Amended August 3, 2010
        Majority vote 
         
         ----------------------------------------------------------------- 
        |ASSEMBLY:  |72-0 |(April 15,      |SENATE: |33-0 |(August 11,    |
        |           |     |2010)           |        |     |2010)          |
         ----------------------------------------------------------------- 
          
         Original Committee Reference:    JUD.  

         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)Provides that, if the birth parent refuses to consider placement  
          of a child being considered for adoption with a relative or  
          sibling, the foster parent shall be considered, along with all  
          other prospective adoptive parents, as provided.  Requires the  
          court, upon request to move a child from a prospective adoptive  
          home for purposes of placement of the child with siblings or other  
          relatives, to consider the child's best interests.

        4)Includes an attorney for the prospective adoptive parents among  
          the entities that may send the required notice and 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.







                                                                AB 2020
                                                                Page  2

        5)Includes a private, licensed adoption agency among the entities  
          that, in a stepparent adoption, can conduct the required  
          investigation.  Requires that if a private, licensed adoption  
          agency conducts the investigation, it must assign the  
          investigation to a licensed social worker or marriage and family  
          therapist, as provided.  Requires that any grievance regarding the  
          investigation be directed to the appropriate licensing authority.

        6)Provides 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.

         The Senate amendments  limit exemptions to the requirement that, when  
        considering placement of a child for adoption, placement with  
        relatives and siblings must be first considered; specify the  
        appropriate grievance procedure against private, licensed adoption  
        agencies involved in stepparent adoption investigations; and make  
        minor changes in 4) and 6) above.
         
        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

        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  







                                                                AB 2020
                                                                Page  3
          there are relative placement requirements under the Welfare &  
          Institutions Code.  

        5)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.   
          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. 

        6)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. 

        7)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.   
          Provides that a guardianship case is to be consolidated with an  
          adoption case if the same child is the subject of each action.   
          Provides that the consolidated case should be heard in the court  
          where the adoption is pending.

         AS PASSED BY THE ASSEMBLY  , this bill was substantially similar to  
        the version approved by the Senate, except as provided above.
         
        FISCAL EFFECT  :  None

         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.  

        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  







                                                                AB 2020
                                                                Page  4
        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 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 Family Code 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  







                                                                AB 2020
                                                                Page  5
        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.    

        The bill also makes several other minor changes to adoption law.


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

                                                                  FN: 0005538