BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 687|
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                                 THIRD READING


          Bill No:  AB 687
          Author:   Fletcher (R), et al.
          Amended:  8/30/11 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  5-0, 7/5/11
          AYES:  Evans, Harman, Blakeslee, Corbett, Leno
           
          SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8
           
          ASSEMBLY FLOOR  :  70-0, 5/12/11 - See last page for vote


           SUBJECT  :    Adoption

           SOURCE  :     Academy of California Adoption Lawyers


           DIGEST  :    This bill makes several changes to the adoption 
          process, including:  (1) provides that when the inquiry is 
          being made into the natural father of a child who is being 
          proposed to be adopted that it also include the names and 
          whereabouts of every man presumed to be the father and the 
          efforts made to give notice of the proposed adoption; (2) 
          provides that notice of the adoption proceeding to the man 
          identified as the natural father is not required when the 
          man's relationship to the child has been previously 
          terminated or when the man has executed a written form to 
          waive notice, deny paternity, relinquish the child for 
          adoption, or consented to the adoption; (3) provides that a 
          licensed private adoption agency is authorized to process 
          non-dependent children adoptions through the Interstate 
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          Compact on the Placement of Children, in specified 
          circumstances; (4) provides that the court may issue an 
          adoption order nunc pro tunc in specified circumstances; 
          (5) provides that a petition challenging an adoption on the 
          basis of fraud must be commenced within three years of the 
          order, or 90 days of discovering the fraud; (6) provides 
          multiple venue options for an adult adoption; and (7) 
          provides that a new adoption birth certificate be issued in 
          a timely manner.

           Senate Floor Amendments  of 8/30/11 delete the requirement 
          that the State Registrar issue a new birth certificate upon 
          an order of adoption or readoption within 120 days.

           ANALYSIS  :    Existing law provides that in an effort to 
          identify the natural father of a child being placed for 
          adoption, the court shall inquire of the mother and any 
          appropriate person from any of the following:  (1) the 
          State Department of Social Services (DSS); (2) a licensed 
          county adoption agency; (3) the licensed adoption agency to 
          which the child is to be relinquished; and (4) in the case 
          of a stepparent adoption, at the option of the board of 
          supervisors, a licensed county adoption agency, the county 
          department designated by the board of supervisors to 
          administer the public social services program, or the 
          county probation department.  (Family Code ÝFAM] Section 
          7663(a))

          Existing law provides that inquiry into the identity of the 
          natural father shall include:  (1) whether the mother was 
          married at the time of conception of the child or any time 
          after; (2) whether the mother was living with a man at the 
          time of conception or birth of the child; (3) whether the 
          mother has received support payments or promises of support 
          in connection with her pregnancy; and (4) whether any man 
          has formally or informally acknowledged or declared his 
          possible paternity of the child.  (FAM Section 7663(b))

          This bill also requires the inquiry into the identity of 
          the natural father of the child to include the names and 
          whereabouts of every man presumed or alleged to be the 
          father of the child, and the efforts made to give notice of 
          the proposed adoption to each man identified. 


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          Existing law provides that the department or the licensed 
          adoption agency must provide a report of its finding 
          regarding the inquiry into the identity of the child's 
          natural father to the court.  (FAM Section 7663(c))

          This bill provides that the agency that completes the 
          inquiry must file a written report with its finding to the 
          court.  

          Existing law provides that after the natural father has 
          been identified, or if more than one man is identified as a 
          possible father, each must be given notice of the 
          proceedings, unless he has been served with written notice 
          alleging that he is or could be the father of the child to 
          be adopted and has failed to bring an action to declare the 
          existence of the father and child relationship within 30 
          days after service of the notice, or the birth of the 
          child, whichever is later.  If the alleged father fails to 
          appear, or fails to claim parental rights, his parental 
          rights will be terminated.  (FAM Section 7664(a))

          This bill consolidates provisions regarding when notice to 
          the alleged or presumed father is not required into FAM 
          Section 7666. 

          Existing law provides that nothing in this part shall 
          change the rights of a presumed father under FAM Section 
          7611.  (FAM Section 7664(c))

          This bill deletes the statement that "nothing in this part 
          shall change the rights of a presumed father under Family 
          Code Section 7611" since this conflicts with other sections 
          of the FAM, namely Section 7612(c) which provides that a 
          presumption under 7611 is rebutted by a judgment of 
          paternity. 

          Existing law provides that notice shall be given to every 
          person identified as the natural father or possible natural 
          father at least 10 days before the date stated in the 
          notice of the proceeding.  Existing law provides that if a 
          person identified as the natural father or possible natural 
          father cannot be located or his whereabouts are unknown, 
          the court may issue an order dispensing with notice of that 
          person.  (FAM Section 7666)

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          This bill consolidates the provisions regarding when notice 
          to a man identified or alleged as the natural father shall 
          not be required including the following already contained 
          in existing law:

          1. The whereabouts or identity of the alleged father are 
             unknown or cannot be ascertained; or

          2. The alleged father has been served with written notice 
             of his alleged paternity and the proposed adoption, and 
             he has failed to bring an action within 30 days of 
             service of the notice or the birth of the child, 
             whichever is later.

          This bill adds the following provisions for when notice to 
          a man identified or 
          alleged as the natural father is not required:

          1. The man's relationship to the child has been previously 
             terminated or determined not to exist by a court; or

          2. The alleged or presumed father has executed a written 
             form to waive notice, deny his paternity, relinquish the 
             child for adoption, or consent to the adoption of the 
             child.

          Existing law provides that an action to terminate the 
          parental rights of a father of a child shall be set for 
          hearing not more than 45 days after filing of the petition 
          and completion of service.  Existing law provides that 
          notice of the proceeding must be given to every person 
          identified as the natural father in accordance with the 
          Code of Civil Procedure for the service of process in a 
          civil action in this state at least 10 days before the date 
          stated in the notice of the proceeding.  Proof of giving 
          the notice must be filed with the court before the petition 
          is heard.  (FAM Sections 7666 and 7667)

          This bill provides that an action to terminate the parental 
          rights of a father shall be set for hearing not more than 
          45 days after filing the petition, rather than the date of 
          service of process, however service of process must still 
          take place at least ten days before the hearing, with proof 

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          being filed with the court.  

          Existing law, Interstate Compact on the Placement of 
          Children (ICPC), provides that the DSS, is "the appropriate 
          public authority" responsible for the administration of 
          ICPC.  (FAM Section 7900 et seq.)

          This bill provides that when a full-service licensed 
          private adoption agency has provided adoption-related 
          services to a birth parent, non-dependent child, or 
          prospective adoptive parent, that agency is authorized to 
          process the paperwork for a non-dependent child pursuant to 
          the ICPC. 

          Existing law provides that the court may enter a judgment 
          for dissolution of marriage nunc pro tunc, even though the 
          judgment may have been previously entered, if the judgment 
          was not entered as soon as it could have by mistake, 
          negligence, or inadvertence.  (FAM Section 2346)

          This bill provides that a court may issue an order of 
          adoption nunc pro tunc where it will serve public policy 
          and the best interests of the adoptee for specified 
          purposes.  This bill provides that an adoptee's eligibility 
          for any publicly-funded benefit program would not be 
          altered by the nunc pro tunc entry of an order of adoption.

          This bill specifies that the pro tunc date shall not 
          precede the date upon which the parental rights of the 
          birth parent(s) were initially terminated, whether 
          voluntarily or involuntarily.

          Existing law provides that in a stepparent adoption, the 
          consent of either or both birth parents shall be signed in 
          the presence of a notary public, court clerk, probation 
          officer, qualified court investigator, or county welfare 
          department staff member of any county.  The above stated 
          individuals must immediately file the consent with the 
          clerk of the court where the adoption petition is filed.  
          Existing law provides that the clerk must immediately 
          notify the probation officer, or, the county welfare 
          department.  Existing law provides that in an agency 
          adoption either birth parent may relinquish a child to the 
          department or a licensed adoption agency for adoption by a 

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          written statement signed before two subscribing witnesses 
          and acknowledged before an authorized official of the 
          department or agency.  Existing law provides that in 
          independent adoptions an adoption service provider shall 
          also witness the signature of the adoption placement 
          agreement.  (FAM Sections 9003, 8700(a) and 8801.7(a))

          This bill adds an authorized representative of a licensed 
          adoption agency to the list of individuals who may witness 
          the consent in a stepparent adoption.  This bill also 
          provides that the consent may be filed simultaneously with 
          the adoption request. 

          Existing law provides that a proceeding to vacate or set 
          aside an adoption on any ground, except fraud, shall be 
          commenced within one year after the entry of the adoption 
          order.  Existing law provides that an action to vacate or 
          set aside an adoption, based on fraud, must be commenced 
          within three years after the adoption.  (FAM Section 9102)

          This bill provides that the action to vacate an adoption 
          based on fraud must be commenced within three years after 
          the adoption or within 90 days of discovery of the fraud, 
          whichever is earlier.  This bill also requires the court to 
          first determine whether the facts presented are legally 
          sufficient to set aside the order of adoption.  If the 
          facts are not legally sufficient, the petition must be 
          denied.  If the facts are legally sufficient, the court's 
          final ruling must take into consideration the best 
          interests of the child, in conjunction with all other 
          factors required by law.

          Existing law provides that the petition for an adult 
          adoption may be filed in the county in which either person 
          resides.  (FAM Section 9321)

          This bill also allows a person who is a resident of this 
          state to petition for an adult adoption to be filed in any 
          of the following:

          1. The county where the prospective adoptive parent 
             resides;

          2. The county where the proposed adoptee was born or 

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             resides at the time the petition is filed; or

          3. The county where the office of the public or private 
             agency that placed the proposed adoptee for foster care 
             or adoption as a minor is located. 

          This bill also allows a petitioner who is not a resident of 
          this state to file a petition for an adult adoption with 
          the court in any of the above mentioned counties or the 
          county where the non-petitioning party resides. 

          Existing law provides that the DSS must check the Child 
          Abuse Central Index prior to granting a license to, or 
          otherwise approving, any individual to care for children.  
          Existing law also requires a county social worker to cause 
          a check of the Child Abuse Index to be conducted on all 
          persons over 18 years of age living in a home whenever a 
          child may be placed in the home of a relative or 
          prospective guardian or other person who is not a licensed 
          or certified foster parent.  (Health and Safety Code 
          Section 1522.1)

          This bill provides that a foster care license or 
          certification is not required if a nondependent child is 
          placed in the care of prospective adoptive parents who have 
          an approved adoption home study.  This bill provides that 
          this placement must not exceed 30 days and if placement 
          does not occur within the 30 days, the licensed private 
          adoption agency must place the child in a home that is 
          licensed or certified for foster care, or the prospective 
          adoptive parent or parents must be appointed by the court 
          as the legal guardian or guardians of the child.  This bill 
          also provides that the licensed private adoption agency 
          must conduct in-home supervisory visits no less than once 
          every 30 days.

           Background
           
          Every year the Academy of California Adoption Lawyers 
          (ACAL) seeks to clarify or modify provisions in the FAM 
          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.

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           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

           SUPPORT  :   (Verified  9/1/11)

          Academy of California Adoption Lawyers (source)
          Aspiranet HQ
          Family Law Section of the California State Bar

           ARGUMENTS IN SUPPORT  :    The author writes:

            "This is the annual ACAL bill whose purpose is to address 
            primarily technical legal issues associated with 
            different forms of adoption.  Some of the issues are 
            technical and seek to alleviate conflict within the 
            Family Code sections or clarification of sections.  
            Others address more substantive issues that due to either 
            a court decision or to a change in practice or 
            administration by the regulatory entities such as the 
            county adoption offices or the ÝCalifornia Department of 
            Social Services].  Finally some are strictly 
            administrative changes to expedite adoptions.  

            "Unfortunately there are instances where adoptive 
            families run into one of these situations and the costs 
            of litigating adds significantly to the adoption process. 
             This bill is Ýthe] latest in a series of annual efforts 
            to clean up the adoption sections of the Family Code.  
            For the past 10 years, ACAL has sponsored this annual 
            legislation all of which have been signed into law."  

          The sponsor of this bill, ACAL, writes, "building families 
          through adoption is a very important process for many 
          families in our state today.  Given the challenging 
          economic times, reducing the need to either litigate or 
          expend legal fees to sort through conflicting or ambiguous 
          sections of the Family Code, adds to the expense of 
          adoption that most families cannot afford.  Creating an 
          opportunity for a child to be placed and accepted in a 
          family home is the best option.  ÝThis bill] ensures that 
          there are fewer technicalities that may serve as a barrier 
          in California law."


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           ASSEMBLY FLOOR  :  70-0, 5/12/11
          AYES:  Achadjian, Allen, Ammiano, Atkins, Beall, Bill 
            Berryhill, Block, Blumenfield, Bonilla, Bradford, 
            Brownley, Buchanan, Butler, Charles Calderon, Campos, 
            Carter, Chesbro, Cook, Davis, Dickinson, Donnelly, Eng, 
            Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, 
            Galgiani, Gatto, Gordon, Grove, Hagman, Halderman, Hall, 
            Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries, 
            Jones, Knight, Lara, Logue, Ma, Mansoor, Mendoza, Miller, 
            Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, 
            Perea, V. Manuel Pérez, Silva, Skinner, Smyth, Solorio, 
            Swanson, Valadao, Wagner, Wieckowski, Williams, Yamada, 
            John A. Pérez
          NO VOTE RECORDED:  Alejo, Cedillo, Conway, Garrick, Gorell, 
            Roger Hernández, Bonnie Lowenthal, Mitchell, Portantino, 
            Torres


          RJG:kc  9/1/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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