BILL ANALYSIS Ó
AB 1757
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1757 (Fletcher) - As Amended: April 11, 2012
PROPOSED CONSENT
SUBJECT : ADOPTION
KEY ISSUE : SHOULD VARIOUS CHANGES BE MADE TO STREAMLINE THE
PROCESS FOR BIRTH AND ADOPTIVE FAMILIES, INCLUIDNG ALLOWING, BUT
NOT REQUIRING, A PROBATE COURT CONSIDERING A GUARDIANSHIP
PETITION TO REFER APPROPRIATE CASES TO THE CHILD WELFARE AGENCY
FOR INVESTIGATION FOR POSSIBLE CHILD ABUSE OR NEGLECT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This is the Academy of California Adoption Lawyers' (ACAL's)
annual adoption bill. According to the author the bill is a
"consensus-driven measure that has been circulated among
stakeholders in the adoption community as they identify statutes
that require clarification or consolidation." The goal of the
bill is to "make it easier for California's children to be
placed in permanent, stable homes with loving parents." The key
provision of this bill clarifies the law regarding children who
both are the subject of a guardianship petition and may qualify
as a dependent after a recent appellate court case which
mandated that all guardianship cases where children may be at
risk of abuse or neglect must be referred to the child welfare
agency for investigation. This bill acknowledges the burdens on
already overstressed child welfare agencies, while still
protecting children from harm, by allowing the probate court, if
it deems appropriate, to refer any case of possible child abuse
or neglect to the child welfare agency for investigation. While
the child welfare investigation is pending, the bill allows the
probate court to take any reasonable steps to protect the
child's safety. The bill also expands birth parents' ability to
waive their right to revoke consent to an adoption from just
independent adoptions under current law to agency adoptions as
well. The bill makes several other more technical and
clarifying changes to adoption laws. There is no opposition to
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this bill.
SUMMARY : Makes changes to adoption and guardianship processes.
Specifically, this bill :
1)In a stepparent adoption, allows a licensed clinical social
worker or marriage and family therapist who is performing the
investigation for the stepparent adoption to also help
identify the child's natural father.
2)Deletes Family Code provisions providing for a process to
terminate parental rights for dependent children, which have
since been superseded by the Welfare & Institutions Code.
3)Clarifies the timelines for setting initial hearings and
contested trials in cases involving termination of parental
rights of presumed fathers and mothers by requiring that a
proceeding to declare a child free from parental custody and
control be set for hearing not more than 45 days after filing
of the petition. Allows a court to issue an order based on
the pleading if no interested person contests the petition.
If an interested person contests the petition, requires the
court to set the matter for trial. Requires the party or
attorney serving the citation issuing from the petition to do
so in a timely manner to maximize response time of the party
being served.
4)Allows birth parents utilizing an agency for an adoption to
waive their right to revoke relinquishment of their child for
adoption, just as birth parents going through an independent
adoption may now do.
5)Provides that the appropriate venue for an adoption petition
to be filed on behalf of a nondependent minor is the court in
the county where one of the following exists:
a) The petitioner resides;
b) The child was born or resides;
c) An office of the agency that placed the child is
located;
d) An office of the department of public agency that is
investigating the adoption is located;
e) The birth parents resided at the time they agreed to
the adoption or when the petition was filed; or
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f) The child was freed for adoption.
6)In a probate guardianship proceeding, requires the court
investigator, unless waived by the court, to investigate every
proposed guardianship and report recommendations to the court.
Requires the report to be made available to all parties at
least three days before the guardianship hearing.
7)Allows the court to refer any case of possible child abuse or
neglect to the child welfare agency. Allows the court,
pending completion of the child welfare investigation, to take
any reasonable steps to protect the child's safety. Stays the
guardianship case if dependency proceedings are initiated.
Requires any recommendation regarding commencing a
guardianship proceeding made by the child welfare social
worker to be provided to the person requesting the dependency
investigation.
EXISTING LAW :
1)Requires, in a proceeding to terminate parental rights as part
of an adoption proceeding, that efforts be made to identify
the natural father and report that information to the court.
In the case of a step-parent adoption, allows the board of
supervisors to determine who should attempt to identify the
father, as specified. (Family Code Section 7663. Unless
stated otherwise, all further statutory references are to the
Family Code.)
2)Provides a process for terminating the parental rights of
dependent children. (Welfare & Institutions Code Section
366.26.)
3)Provides that a proceeding to declare a child free from
parental custody and control be set for hearing not more than
45 days after filing of the petition and completion of service
of process. (Section 7870.)
4)Provides that a birth parent may waive the right to revoke
consent to an independent adoption by signing the waiver in
the presence of: 1) a representative of the Department of
Social Services (DSS) or the delegated county adoption agency;
2) a judicial officer if the birth parent is represented by
independent legal counsel; or 3) an adoption service provider
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if the birth parent is represented by independent legal
counsel, as provided. (Section 8814.5.)
5)Provides that a resident of California may file an adoption
petition in the county where any of the following exists,
while a nonresident may file the petition anywhere, except a),
below:
a) The petitioner resides;
b) The child was born or resides;
c) An office of the agency that placed the child is
located; or
d) An office of the department of public agency that is
investigating the adoption is located. (Section 9211.)
6)Provides that a court investigator may conduct an
investigation as part of a guardianship proceeding and report
to the court, unless waived by the court. Requires the court
to read and consider such report before ruling on the
guardianship petition. If the investigation alleges that the
child's parent is unfit, requires the case to be referred to
the child welfare agency for investigation and stays
guardianship proceedings until completion of that
investigation. (Probate Code Section 1513.)
COMMENTS : This is the Academy of California Adoption Lawyers'
annual adoption bill. In support of the bill, the author
writes:
ÝThe bill] is a consensus-driven measure that has been
circulated among stakeholders in the adoption community as
they identify statutes that require clarification or
consolidation. Laws that govern adoption processes are
spread throughout the Family Code, Welfare & Institutions
Code, and Probate Code. As these code sections are
gradually amended, they may often conflict with other
sections, resulting in contradictory provisions. Such
convoluted laws are often misinterpreted and misapplied in
judicial procedures, presenting unnecessary and costly
hurdles to parents that would like to adopt. This bill
reconciles the various inconsistencies in statute to
clarify adoption law and streamline adoption processes. By
doing so, we make it easier for California's children to be
placed in permanent, stable homes with loving parents
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This bill clarifies the law when a child who is the subject of a
guardianship petition may also qualify as a dependent child . A
guardianship is a legal relationship established under the
Probate Code that does not terminate parental rights. The key
provision of this bill clarifies the law regarding children who
are both the subject of a guardianship petition and may qualify
as a dependent after a recent appellate case.
In Christian G. (2011) 195 Cal. App. 4th 581, the trial court
appointed a boy's uncle as his guardian after an investigation
revealed that the boy's father was unable to care for him
adequately. The court of appeals reversed the appointment,
finding that the probate court should instead have referred the
case to the child welfare agency for a dependency investigation
under Probate Code Section 1513. That section requires that if
the probate investigation, performed in conjunction with the
guardianship petition, finds that any party alleges that the
child's parent is unfit, the case must be referred to the child
welfare agency for investigation and the guardianship case must
be stayed pending that investigation.
As a result of Christian G., the bill's sponsor states that
already overburdened child welfare agencies have been deluged
with cases for investigation, particularly for less egregious
cases that warrant some intervention, but not necessarily full
involvement by the dependency court. This bill seeks to ensure
that probate court judges have the discretion they need to
protect children from harm, but enough flexibility to also be
able to take appropriate action in cases when warranted, by
allowing the probate court, if it deems appropriate, to refer
any case of possible child abuse or neglect to the child welfare
agency. While the child welfare investigation is pending, the
court can take any reasonable steps to protect the child's
safety. The guardianship case is then appropriately stayed if
dependency proceedings are initiated.
This bill allows birth parents using an agency adoption to waive
their right to revoke consent for the adoption, just like birth
parents doing an independent adoption can do today . Birth
parents who relinquish their child for adoption are given a
short period of time to revoke their consent for adoption -- 30
days for parents using independent adoption and about 10 days
for parents going through an agency. Today, birth parents using
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independent adoption are able to waive their right to revoke
consent for the adoption, if they so choose, thus finalizing
termination of their rights earlier and providing quicker
closure to both birth parents and adoptive parents.
This bill allows birth parents using an agency for the adoption
to also waive their right to revoke consent for the adoption and
reach closure quicker. The proposed law provides the same
protections currently afforded to birth parents undergoing an
independent adoption including limiting who may accept the
waiver, specifying the warnings that must be provided to the
birth parents as part of the waiver process and in some cases,
requiring that independent counsel advise the birth parents as
to their rights.
This bill also makes other less substantial changes to adoption
law, including clarifying timeframes for setting initial
hearings and contested trials involving termination of parental
rights of presumed parents, clarifying venue provisions for
adoptions, and clarifying home study standards for independent
adoptions to allow adoptive families to use valid, unexpired
home studies for the adoption.
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334