BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 848 (Patterson)
As Introduced
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Adoption
DESCRIPTION
This bill, sponsored by the Academy of California Adoption
Lawyers, would make several changes to adoption processes and
adoptive placement considerations. Specifically, this bill
would clarify when a birth parent's waiver of the right to
revoke consent to an adoption is void or able to be rescinded.
This bill would also clarify that an abbreviated home study
assessment may only be used for the following individuals:
a certified foster parent with whom the child has lived with
for more than six months;
an approved relative caregiver or nonrelated extended family
member with whom the child has had an ongoing and significant
relationship;
a court appointed guardian, as specified; or
a prospective adoptive parent who has completed an
agency-supervised adoption within the past two years.
BACKGROUND
Every year, the Academy of California Adoption Lawyers (ACAL)
seeks to clarify or modify provisions in the Family and related
codes 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. Accordingly,
this bill, sponsored by ACAL, would make various clarifying
changes related to adoption, including clarifying when a birth
parent's waiver of the right to revoke consent to an adoption is
void or able to be rescinded, and clarifying the law surrounding
(more)
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eligibility for an abbreviated home study assessment.
CHANGES TO EXISTING LAW
1.Existing law specifies how a birth parent may relinquish a
child for adoption, and allows a parent to revoke the
relinquishment within 10 days of the relinquishment for agency
adoptions and within 30 days for independent adoptions. (Fam.
Code Secs. 8700, 8801.3, 8814, 8814.5.)
Existing law allows birth parents, either going through an
independent adoption or utilizing an agency adoption, to waive
their right to revoke relinquishment of their child for
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; or 2) if the birth
parents are represented by independent legal counsel, a
judicial officer, adoption service provider, or agency
representative. (Fam. Code Secs. 8700.5, 8814.5.)
This bill would clarify that a birth parent's waiver of the
right to revoke the relinquishment for adoption is void if the
relinquishment is determined to be invalid, the relinquishment
is revoked during any holding period specified in writing, or
the relinquishment is rescinded, as specified. This bill
would provide that these provisions do not limit the birth
parent's right to rescind the relinquishment.
2.Existing law provides that a waiver signed in front of a
judicial officer or the department is final and irrevocable at
the time the waiver is signed. Waivers signed in the presence
of an authorized representative of a private licensed adoption
agency shall become final and irrevocable at the close of the
next business day. (Fam. Code Sec. 8700.5(c).)
This bill would clarify that, in an agency adoption, if a
birth parent waives the right to revoke the relinquishment for
adoption, the relinquishment becomes final and irrevocable at
the close of the next business day after: (1) date it was
signed, (2) or the expiration of any holding period specified
in writing.
3.Existing law requires the department or delegated county
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adoption agency to ascertain whether a proposed adoptive home
is suitable for the child. Existing law further requires that
the department or agency submit to the court a full report of
the facts found in studying a prospective adoptive home. (Fam.
Code Secs. 8806, 8807.)
Existing law authorizes the department, county adoption
agency, or licensed adoption agency to order an abbreviated
home study for prospective adoptive parents who are already
foster parents or relative caregivers to the child, as
specified. (Fam. Code Sec. 8730.)
This bill would clarify that unless ordered otherwise by a
court, DSS or the licensed adoption agency overseeing the
adoption may do an abbreviated home study for the following
individuals:
a licensed foster parent with whom the child has lived
for at least six months;
an approved relative caregiver or non-related extended
family member with whom the child has had an ongoing and
significant relationship;
a court-appointed relative guardian who has had physical
custody of the child for at least one year and has been
investigated and approved under the guardianship process;
or
a prospective adoptive parent who has completed an
agency-supervised adoption within the last two years.
COMMENT
1.Stated need for the bill
According to the author:
Last year, legislation was passed regarding a number of
changes to clarify the law to assist those who wish to build
their families through adoption. The California Department of
Social Services requested further clarification on one item
that was not amended in time to make it into the final version
of the bill, and a second item for which some of the final
wording was inadvertently omitted from the final draft of the
bill.
2.Abbreviated home studies
Home studies are used prior to an adoptive placement to acquire
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information about prospective adoptive parents, including their
identity, eligibility, background, and family and medical
history. These studies can take many months, and cost nearly
$5,000 to complete. Abbreviated home studies, which demand much
less time and money than full studies, are currently available
for prospective adoptive parents who have been a foster parent
to the child for at least six months, or for relative caregivers
who have an ongoing and significant relationship with the child.
Because these abbreviated studies are less comprehensive, they
are also less protective but can result in permanent adoptive
placements sooner.
This bill seeks to remove any ambiguities in the current law and
clarify which prospective adoptive parents qualify for an
abbreviated home study assessment. Accordingly, this bill would
clarify that abbreviated home studies may be used only in the
following circumstances: (1) for a licensed foster parent with
whom the child has lived for at least six months; (2) for an
approved relative caregiver or non-related extended family
member with whom the child has had an ongoing and significant
relationship; (3) for a court-appointed relative guardian who
has had physical custody of the child for at least one year and
has been investigated and approved under the guardianship
process; or (4) for prospective adoptive parent who has
completed an agency-supervised adoption within the last two
years.
While the first three circumstances clarify existing law, which
authorizes an abbreviated study for licensed foster parents with
whom the child has lived or relative family members, as
specified, the fourth circumstance is arguably an expansion of
existing law. Staff notes, however, that prospective adoptive
parents who have completed an agency-supervised adoption within
the past two years have been recently evaluated as to their
fitness to adopt a child and parent. The Academy of California
Adoption Lawyers (ACAL) in support of this bill writes:
[These] revisions clarify and limit this abbreviated process
to just those individuals who have already undergone
significant background investigations and who have a
pre-existing relationship with the child. Thus, the proposed
changes will balance the need for faster routes to permanency
for the most vulnerable children, with the need for quality
investigations into the prospective adoptive parents.
The author writes that these clarifications are necessary
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because several prospective adoptive parents have used the
existing law to attempt to avoid completing the full home study
required prior to adoption. When the Department of Social
Services objected, the prospective adoptive parents petitioned
the court for declaratory relief.
This bill would maintain existing law which provides that, other
than by court order, only the Department of Social Services or a
licensed adoption agency has the discretion to decide whether to
use an abbreviated home study. These entities are best situated
to balance a child's need for a timely placement in a permanent
home, with the safety of that placement. Accordingly, by
further clarifying what circumstances warrant an abbreviated
study, this bill will help ensure that an abbreviated home study
will only be used when appropriate.
3.Clarifies waiver of right to revoke consent to adoption
Under existing law, birth parents who relinquish their child for
adoption are able to revoke their consent for that adoption
(within 30 days for parents using independent adoption and 10
days for using an agency). A birth parent who decides that he
or she wants finality sooner may waive the right to revoke the
adoption. A birth parent also has the right to rescind the
relinquishment of his or her child if agreed to by the adoption
agency and the birth parent(s), or if the child is not placed
with the prospective adoptive parents named in the contract
signed by the birth parent(s).
This bill would further clarify that, in an agency adoption,
waiver of the right to revoke consent to adoption is void if the
relinquishment is found to be invalid, the relinquishment is
revoked, or the relinquishment is rescinded. These provisions
do not, in any way, change the underlying revocation rights, the
ability to waive those rights, or the rescission rights of a
birth parent. These provisions would instead protect a birth
parent's rights, even in the event that he or she has signed a
waiver of the right to revoke consent to adoption, by deeming
that waiver void if another aspect of the adoption has gone
awry.
This bill would also clarify that when a birth parent waives the
right to revoke relinquishment for a private agency adoption,
that relinquishment becomes final and irrevocable at the close
of the next business day after: (1) date it was signed; or (2)
the expiration of any holding period specified in writing.
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Support : Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Academy of California Adoption Lawyers
Related Pending Legislation : None Known
Prior Legislation :
AB 1757 (Fletcher, Chapter 638, Statutes of 2012) among other
things, clarified the probate court's role when a child in a
guardianship proceeding may fall within the jurisdiction of the
dependency court, authorized birth parents to waive their right
to revoke consent in agency adoptions, and consolidated venue
provisions for adoption petitions into one code section.
AB 687 (Fletcher, Chapter 462, Statutes of 2011) streamlined the
process for determining parent-child relationships, and made
other technical and substantive changes to adoption laws.
AB 2020 (Fletcher, Chapter 588, Statutes of 2010) among other
things, streamlined the process for determining parent-child
relationships and made other substantive and technical changes
to adoption laws.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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