BILL ANALYSIS Ó
AB 1757
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CONCURRENCE IN SENATE AMENDMENTS
AB 1757 (Fletcher)
As Amended August 15, 2012
Majority vote
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|ASSEMBLY: |75-0 |(May 31, 2012) |SENATE: |37-0 |(August 21, |
| | | | | |2012) |
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Original Committee Reference: JUD.
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since been superseded by the Welfare & Institutions Code.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:
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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,
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.
The Senate amendments delete a provision requiring the court to
make an independent determination as to whether a guardianship
is reasonable or necessary to serve the best interests of the
minor.
EXISTING LAW :
1)Provides a process for terminating the parental rights of
dependent children.
2)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
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of process.
3)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
if the birth parent is represented by independent legal
counsel, as provided.
4)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.
5)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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This is the Academy of California Adoption Lawyers'
annual adoption bill. In support of the bill, the author
writes:
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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 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.
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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: 0004956