BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 687| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 687 Page 2 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. CONTINUED AB 687 Page 3 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) CONTINUED AB 687 Page 4 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 CONTINUED AB 687 Page 5 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 CONTINUED AB 687 Page 6 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 CONTINUED AB 687 Page 7 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. CONTINUED AB 687 Page 8 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." CONTINUED AB 687 Page 9 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 **** END **** CONTINUED