BILL ANALYSIS Ó
AB 1757
Page 1
ASSEMBLY THIRD READING
AB 1757 (Fletcher)
As Amended April 11, 2012
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 17-0
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|Ayes:|Feuer, Wagner, Atkins, |Ayes:|Fuentes, Harkey, |
| |Dickinson, Gorell, Huber, | |Blumenfield, Bradford, |
| |Jones, Monning, | |Charles Calderon, Campos, |
| |Wieckowski, Alejo | |Davis, Donnelly, Gatto, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Makes changes to adoption and guardianship processes.
Specifically, this bill :
1)Allows, in a stepparent adoption, 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since been superseded by the Welfare and Institutions Code.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
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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 or 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,
f) The child was freed for adoption.
6)Requires, in a probate guardianship proceeding, 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
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case of a step-parent adoption, allows the board of supervisors
to determine who should attempt to identify the father, as
specified.
2)Provides a process for terminating the parental rights of
dependent children.
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.
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: a) a representative of the Department of Social
Services (DSS) or the delegated county adoption agency; b) a
judicial officer if the birth parent is represented by
independent legal counsel; or, c) an adoption service provider if
the birth parent is represented by independent legal counsel, as
provided.
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 or public agency that is
investigating the adoption is located.
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
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of that investigation.
FISCAL EFFECT : According to the Assembly Appropriations Committee:
1)As this legislation is primarily clarifying, there are no new
costs for the courts.
2)Costs for the county child welfare departments should be minor
and absorbable within existing resources.
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.
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, a 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 a Probate Code section which
requires that if a 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
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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.
Another provision of the bill allows birth parents using an agency
for the adoption to 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0003508