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