BILL NUMBER: AB 1701 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 10, 2014
INTRODUCED BY Assembly Member Patterson
FEBRUARY 13, 2014
An act to amend Section 8603 of Sections
7630, 7662, 7666, 7807, 8603, 8604, 8606, 8613.5, 8700, 8801.3, 8804,
8807, 8808, 8814, and 8815 of, and to add Sections 7671, 7842, and
8800.5 to, the Family Code, relating to family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 1701, as amended, Patterson. Family law: adoption.
(1) Existing law authorizes, among others, the child's natural
parent to bring an action to declare the existence or nonexistence of
a presumed parent and child relationship. Existing law requires the
court to join to that action specified parties, including prospective
adoptive parents who have physical custody of a child, who have not
been joined as parties without the necessity of a motion for joinder.
This bill would instead authorize the child's natural mother
to bring that action. The bill would also require the court to join
to that action additional specified parties who have not been joined
as parties, including a licensed California adoption
agency to which the mother proposes to relinquish the child for
adoption.
Existing
(2) Existing law provides for the
adoption of unmarried minors. Existing law prohibits a married
person, not lawfully separated from the person's spouse, from
adopting a child without the consent of the spouse if the spouse is
capable of giving that consent.
This bill would additionally provide that the consent of the
spouse shall not establish any parental rights or responsibilities on
the part of the consenting spouse unless he or she has been
approved to adopt the child, has consented to adopt the
child in a writing signed before, and filed with, the court,
filed with the court and is named in the final
decree as an adoptive parent of the child.
(3) Existing law generally provides that a child having a presumed
father, as specified, shall not be adopted without the consent of
the child's birth parents, if living. However, if one birth parent
has been awarded custody by judicial order, or has custody by
agreement of both parents, and the other birth parent for a period of
one year willfully fails to communicate with, and to pay for, the
care, support, and education of the child when able to do so, then
the birth parent having sole custody may consent to the adoption,
after the birth parent who does not have custody has been served with
a specified citation. Under existing law, the failure of a birth
parent to pay for the care, support, and education of the child for
the period of one year or the failure of a birth parent to
communicate with the child for the period of one year is prima facie
evidence that the failure was willful and without lawful excuse.
This bill would authorize the court to issue a temporary custody
order, as specified, if the birth mother of a child for whom there is
not a presumed father leaves the child in certain circumstances,
including in the physical care of a licensed private adoption agency,
and fails to sign a placement agreement, consent, or relinquishment
for adoption. The bill would authorize the temporary custody order to
be voided upon the birth mother's request to have the child returned
to her care and custody.
(4) Existing law requires, if a mother relinquishes for or
consents to, or proposes to relinquish for or consent to, the
adoption of a child, or if a child otherwise becomes the subject of
an adoption proceeding, one of several specified persons to file a
petition to terminate the parental rights of the alleged father,
except as specified.
Existing law permits an interested person to file a petition for
an order or judgment declaring a child free from the custody and
control of either or both parents.
This bill would permit a single petition to be filed to terminate
the parental rights of the alleged father or fathers of 2 or more
biological siblings or to terminate the parental rights of 2 or more
alleged fathers of the same child. The bill would also permit a
single petition to be filed to free a child, or more than one child
if the children are biological siblings, from the custody and control
of both parents. The bill would provide that a court may grant one
of these joint petitions in whole or in part and retains the
discretion to bifurcate a case in which a joint petition was filed,
and requires a court to bifurcate a case in which a joint petition
was filed whenever it is necessary to protect the interests of a
party or a child who is the subject of the proceeding.
(5) Existing law authorizes the court to waive the personal
appearance of a prospective adoptive parent and permit him or her to
appear at an adoption proceeding through an attorney if there is
clear and convincing evidence that it is impossible or impracticable
for the prospective adoptive parent to appear at the adoption
proceeding.
This bill would authorize the court to permit a prospective
adoptive parent to appear by telephone, videoconference, or other
remote electronic means that the court deems reasonable, prudent, and
reliable.
(6) Existing law governs independent adoptions, which are defined
to mean adoptions in which neither the State Department of Social
Services nor an agency licensed by that department is a party to or
joins in the adoption petition, and sets forth the procedures for
completing an independent adoption.
This bill would authorize a parent who is not a resident of this
state and who is placing a child for independent adoption within this
state to place the child using this state's independent adoption
procedures or using the procedures prescribed by the state or
territory in which the parent resides. The bill would make other
conforming changes.
Existing law requires, as a part of the independent adoption
procedures, the department or the delegated county adoption agency to
investigate the proposed independent adoption and submit a report of
the facts disclosed by its inquiry with a recommendation regarding
the granting of the adoption petition.
This bill would provide that when the department or a delegated
county adoption agency is investigating a proposed adoption, it is
not required to reinvestigate matters addressed in a valid
preplacement evaluation or a valid private agency adoption home
study, if no new information has been discovered or events have
occurred subsequent to the approval of the evaluation or home study
that create a reasonable belief that further investigation is
necessary. The bill would also authorize the court to refer the
investigation to a licensed private agency for completion if the
investigation is not completed within 210 days of the initial filing
of the adoption petition.
Existing law also requires the department or a delegated county
adoption agency to interview the petitioners and all persons from
whom consent is required and whose addresses are known. Existing law
requires the agency, at the interview, to give the placing parent an
opportunity to sign either a statement revoking consent, or a waiver
of the right to revoke consent. In order to facilitate the interview,
existing law requires the petitioner, at the time the petition is
filed, to file, among other things, a copy of the petition with the
department or with the delegated county adoption agency responsible
for the investigation of the adoption.
This bill would not require the department to provide the placing
parent an opportunity to sign a statement revoking consent or a
waiver of the right to revoke consent if the parent has already
signed a waiver of the right to revoke consent or if the time period
allowed to revoke consent has expired. The bill would require the
petitioner, within 5 days of filing the petition, to provide the
department or delegated county adoption agency, among other things, a
stamped file copy of the petition and a copy of any valid
preplacement evaluation or any valid private agency adoption home
study.
Existing law requires the court, in an independent adoption, if a
birth parent who did not place a child for adoption has refused to
give the required consent, or a birth parent revokes consent, or,
before the time when a revocable consent becomes permanent, a birth
parent requests the return of the child, to order the child restored
to the care and custody of the birth parent.
This bill would instead require the child to be restored to the
care and custody of his or her birth parent, unless the court orders
otherwise.
By imposing additional duties on delegated county adoption
agencies, this bill would impose a state-mandated local program.
(7) Existing law authorizes a parent who is a minor to relinquish
his or her child to the department, county adoption agency, or
licensed adoption agency and sign a consent for the adoption.
Existing law provides that the relinquishment and consent are not
subject to revocation by reason of minority.
This bill would also provide that the relinquishment and consent
are not subject to revocation because the parent or guardian of the
minor parent was not served with notice of the relinquishment or
consent, unless the minor parent previously provided written
authorization to serve his or her parent or guardian with those
notices.
(8) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7630 of the Family
Code is amended to read:
7630. (a) A child, the child's natural parent,
mother, a person presumed to be the child's parent under
subdivision (a), (b), or (c) of Section 7611, an adoption agency to
whom the child has been relinquished, or a prospective adoptive
parent of the child may bring an action as follows:
(1) At any time for the purpose of declaring the existence of the
parent and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the parent
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts. After the presumption
has been rebutted, parentage of the child by another person may be
determined in the same action, if that person has been made a party.
(b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the parent
and child relationship presumed under subdivision (d) or (f) of
Section 7611.
(c) Except as to cases coming within Chapter 1 (commencing with
Section 7540) of Part 2, an action to determine the existence of the
parent and child relationship may be brought by the child or
child, a personal representative of the child,
the Department of Child Support Services, the
a presumed parent or the personal representative or a parent
of that presumed parent if that parent has died or is a
minor, or, in cases in which the natural mother is the only
presumed parent or an adoption is pending, a man alleged or
alleging himself to be the father, father
or the personal representative or a parent of the alleged
father if the alleged father has died or is a minor.
(d) (1) If a proceeding has been filed under Chapter 2 (commencing
with Section 7820) of Part 4, an action under subdivision (a) or (b)
shall be consolidated with that proceeding. The parental rights of
the presumed parent shall be determined as set forth in Sections 7820
to 7829, inclusive.
(2) If a proceeding pursuant to Section 7662 has been filed under
Chapter 5 (commencing with Section 7660), an action under subdivision
(c) shall be consolidated with that proceeding. The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664.
(3) The consolidated action under paragraph (1) or (2) shall be
heard in the court in which the proceeding under Section 7662 or
Chapter 2 (commencing with Section 7820) of Part 4 is filed, unless
the court finds, by clear and convincing evidence, that transferring
the action to the other court poses a substantial hardship to the
petitioner. Mere inconvenience does not constitute a sufficient basis
for a finding of substantial hardship. If the court determines there
is a substantial hardship, the consolidated action shall be heard in
the court in which the parentage action is filed.
(e) (1) If any prospective adoptive parent who has physical
custody of the child, or any licensed California
adoption agency that has legal custody of the child,
child or to which the mother proposes to relinquish
the child for adoption, or any person whom the mother has designated
as the prospective adoptive parent in a written statement executed
before a hospital social worker, an adoption service provider, an
adoption agency representative, or a notary public, has not
been joined as a party to an action to determine the existence of a
parent and child relationship under subdivision (a), (b), or (c), or
an action for custody by the alleged natural father, the court shall
join the prospective adoptive parent or licensed California adoption
agency as a party upon application or on its own motion, without the
necessity of a motion for joinder. A joined party shall not be
required to pay a fee in connection with this action.
(2) If a person brings an action to determine parentage and
custody of a child who he or she has reason to believe is in the
physical or legal custody of an adoption agency, or of one or more
persons other than the child's parent who are prospective adoptive
parents, he or she shall serve his or her entire pleading on, and
give notice of all proceedings to, the adoption agency or the
prospective adoptive parents, or both.
(f) A party to an assisted reproduction agreement may bring an
action at any time to establish a parent and child relationship
consistent with the intent expressed in that assisted reproduction
agreement.
(g) (1) In an action to determine the existence of the parent and
child relationship brought pursuant to subdivision (b), if the child'
s other parent has died and there are no existing court orders or
pending court actions involving custody or guardianship of the child,
then the persons having physical custody of the child shall be
served with notice of the proceeding at least 15 days prior to the
hearing, either by mail or in any manner authorized by the court. If
any person identified as having physical custody of the child cannot
be located, the court shall prescribe the manner of giving notice.
(2) If known to the person bringing the parentage action,
relatives within the second degree of the child shall be given notice
of the proceeding at least 15 days prior to the hearing, either by
mail or in any manner authorized by the court. If a person identified
as a relative of the second degree of the child cannot be located,
or his or her whereabouts are unknown or cannot be ascertained, the
court shall prescribe the manner of giving notice, or shall dispense
with giving notice to that person.
(3) Proof of notice pursuant to this subdivision shall be filed
with the court before the proceeding to determine the existence of
the parent and child relationship is heard.
SEC. 2. Section 7662 of the Family Code
is amended to read:
7662. (a) If a mother relinquishes for or consents to, or
proposes to relinquish for or consent to, the adoption of a child, or
if a child otherwise becomes the subject of an adoption proceeding,
the agency or person to whom the child has been or is to be
relinquished, or the mother or the person having physical or legal
custody of the child, or the prospective adoptive parent, shall file
a petition to terminate the parental rights of the alleged father,
unless one of the following occurs:
(1) The alleged father's relationship to the child has been
previously terminated or determined not to exist by a court.
(2) The alleged father has been served as prescribed in Section
7666 with a written notice alleging that he is or could be the
biological father of the child to be adopted or placed for adoption
and has failed to bring an action for the purpose of declaring the
existence of the father and child relationship pursuant to
subdivision (c) of Section 7630 within 30 days of service of the
notice or the birth of the child, whichever is later.
(3) The alleged father has executed a written form developed by
the department to waive notice, to deny his paternity, relinquish the
child for adoption, or consent to the adoption of the child.
(b) The alleged father may validly execute a waiver or denial of
paternity before or after the birth of the child, and once signed, no
notice of, relinquishment for, or consent to adoption of the child
shall be required from the alleged father for the adoption to
proceed.
(c) All Except as provided in
this subdivision and subdivision (d), all
proceedings affecting a child child, including
proceedings under Divisions 8 (commencing with Section 3000)
to 11 (commencing with Section 6500), inclusive, and Parts
Part 1 (commencing with Section 7500) to
Part 3 (commencing with Section 7600), inclusive, of this
division, other than an action brought pursuant to this
section, shall be stayed pending final determination of proceedings
to terminate the parental rights of the alleged father pursuant to
this section. and Part 1 (commencing with Section
1400), Part 2 (commencing with Section 1500), and Part 4 (commencing
with Section 2100) of Division 4 of the Probate Code, and any motion
or petition for custody or visitation filed in a proceeding under
this part, shall be stayed. The petition to terminate parental rights
under this section is the only matter that may be heard during the
stay until the court issues a final ruling on the petition.
(d) Nothing in this This section
may does not limit the jurisdiction of
the court pursuant to Part 3 (commencing with Section 6240) and Part
4 (commencing with Section 6300) of Division 10 with respect to
domestic violence orders. orders, or pursuant
to Article 6 (commencing with Section 300) of Chapter 2 of Part 1 of
Division 2 of the Welfare and Institutions Code with respect to
dependency proceedings.
SEC. 3. Section 7666 of the Family Code
is amended to read:
7666. (a) Except as provided in subdivision (b), notice of the
proceeding shall be given to every person identified as the
biological father or a possible biological 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 of the
proceeding, except that publication or posting of the notice of the
proceeding is not required. required, and
service on the parent or guardian of a biological father or possible
biological father who is a minor is not required unless the minor has
previously provided written authorization to serve his or
her parent or guardian. Proof of giving the notice shall be
filed with the court before the petition is heard.
(b) Notice to a man identified as or alleged to be the biological
father shall not be required, and the court shall issue an order
dispensing with notice to him, under any of the following
circumstances:
(1) The relationship to the child has been previously terminated
or determined not to exist by a court.
(2) The alleged 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.
(3) The whereabouts or identity of the alleged father are unknown
or cannot be ascertained.
(4) 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 pursuant to subdivision (c) of Section 7630 within 30
days of service of the notice or the birth of the child, whichever
is later.
SEC. 4. Section 7671 is added to the
Family Code , immediately following Section 7670
, to read:
7671. A single petition may be filed pursuant to Section 7662 to
terminate the parental rights of the alleged father or fathers of two
or more biological siblings or to terminate the parental rights of
two or more alleged fathers of the same child. A petition filed in
accordance with this section may be granted in whole or in part in
accordance with the procedures set forth in this chapter. The court
shall retain discretion to bifurcate any case in which the petition
was filed in accordance with this section, and shall do so whenever
it is necessary to protect the interests of a party or a child who is
the subject of the proceeding.
SEC. 5. Section 7807 of the Family Code
is amended to read:
7807. (a) Sections 3020, 3022, 3040 to 3043, inclusive, and 3409
do not apply in a proceeding under this part.
(b) All Except as provided in this
subdivision and subdivision (c), all proceedings affecting a
child child, including proceedings
under Divisions 8 (commencing with Section 3000) to 11 (commencing
with Section 6500), inclusive, and Parts Part
1 (commencing with Section 7500) to Part 3
(commencing with Section 7600), inclusive, of this division
shall be stayed pending final determination of proceedings to declare
the minor free from parental custody and control under this part.
division, and Part 1 (commencing with Section 1400),
Part 2 (commencing with Section 1500), and Part 4 (commencing with
Section 2100) of Division 4 of the Probate Code, and any motion or
petition for custody or visitation filed in a proceeding under this
part, shall be stayed. Th e petition to free the minor
from parental custody and control under this section is the only
matter that may be heard during the stay until the court
issues a final ruling on the petition.
(c) Nothing in this This section
may does not limit the jurisdiction of
the court pursuant to Part 3 (commencing with Section 6240) and Part
4 (commencing with Section 6300) of Division 10 with respect to
domestic violence orders. violence orders, or
pursuant to Article 6 (commencing with Section 300) of
Chapter 2 of Part 1 of Division 2 of the Welfare and Institutions
Code with respect to dependency proceedings.
SEC. 6. Section 7842 is added to the
Family Code , immediately following Section 7841
, to read:
7842. A single petition may be filed under this part to free a
child, or more than one child if the children are biological
siblings, from the custody and control of both parents. A petition
filed in accordance with this section may be granted in whole or in
part in accordance with the procedures set forth in this chapter. The
court shall retain discretion to bifurcate any case in which the
petition was filed in accordance with this section, and shall do so
whenever it is necessary to protect the interests of a party or a
child who is the subject of the proceeding.
SECTION 1. SEC. 7. Section 8603 of
the Family Code is amended to read:
8603. (a) A married person, not lawfully separated from the
person's spouse, shall not adopt a child without the consent of the
spouse, provided that the spouse is capable of giving that consent.
(b) The consent of the spouse shall not establish any parental
rights or responsibilities on the part of the consenting spouse
unless he or she has been approved to adopt the child,
has consented to adopt the child in a writing
signed before, and filed with, the court, filed with
the court and is named in the final decree as an adoptive
parent.
SEC. 8. Section 8604 of the Family Code
is amended to read:
8604. (a) Except as provided in subdivision (b), a child having a
presumed father under Section 7611 may shall
not be adopted without the consent of the child's birth
parents, if living. The consent of a presumed father is not required
for the child's adoption unless he became a presumed father as
described in Chapter 1 (commencing with Section 7540) or Chapter 3
(commencing with Section 7570) of Part 2 of Division 12, or
subdivision (a), (b), or (c) of Section 7611 before the mother's
relinquishment or consent becomes irrevocable or before the mother's
parental rights have been terminated.
(b) If one birth parent has been awarded custody by judicial
order, or has custody by agreement of both parents, and the other
birth parent for a period of one year willfully fails to communicate
with with, and to pay for
for, the care, support, and education of the
child when able to do so, then the birth parent having sole custody
may consent to the adoption, but only after the birth parent not
having custody has been served with a copy of a citation in the
manner provided by law for the service of a summons in a civil action
that requires the birth parent not having custody to appear at the
time and place set for the appearance in court under Section 8718,
8823, 8913, or 9007.
(c) Failure of a birth parent to pay for the care, support, and
education of the child for the period of one year or failure of a
birth parent to communicate with the child for the period of one year
is prima facie evidence that the failure was willful and without
lawful excuse. If the birth parent or parents have made only token
efforts to support or communicate with the child, the court may
disregard those token efforts.
(d) (1) If the birth mother of a child for whom there is not a
presumed father leaves the child in the physical care of a licensed
private adoption agency, in the physical care of a prospective
adoptive parent who has an approved preplacement evaluation or
private agency adoption home study, or in the hospital after
designating a licensed private adoption agency or an approved
prospective adoptive parent in a signed document, completed with a
hospital social worker, adoption service provider, licensed private
adoption agency worker, notary, or attorney, but fails to sign a
placement agreement, consent, or relinquishment for adoption, the
approved prospective adoptive parent or the licensed private adoption
agency may apply for, and the court may issue, a temporary custody
order placing the child in the care and custody of the applicant.
(2) A temporary custody order issued pursuant to this subdivision
shall include all of the following:
(A) A requirement that the applicant keep the court informed of
the child's residence at all times.
(B) A requirement that the child shall not be removed from the
state or concealed within the state.
(C) The expiration date of the order, which shall not be more than
six months after the order is issued.
(3) A temporary custody order issued pursuant to this subdivision
may be voided upon the birth mother's request to have the child
returned to her care and custody.
SEC. 9. Section 8606 of the Family Code
is amended to read:
8606. Notwithstanding Sections 8604 and 8605, the consent of a
birth parent is not necessary in the following cases:
(a) Where When the birth parent has
been judicially deprived of the custody and control of the child (1)
by a court order declaring the child to be free from the custody and
control of either or both birth parents pursuant to Part 4
(commencing with Section 7800) of Division 12 of this code, or
Section 366.25 or 366.26 of the Welfare and Institutions Code, or (2)
by a similar order of a court of another jurisdiction, pursuant to a
law of that jurisdiction authorizing the order.
(b) Where When the birth parent has,
in a judicial proceeding in another jurisdiction, voluntarily
surrendered the right to the custody and control of the child
pursuant to a law of that jurisdiction providing for the surrender.
(c) Where When the birth parent has
deserted the child without provision for identification of the child.
(d) Where When the birth
parent has relinquished the child for adoption as provided in Section
8700.
(e) Where When the birth parent has
relinquished or placed the child for adoption to
a licensed or authorized child-placing agency in another
jurisdiction pursuant to the law of that jurisdiction.
(f) When the birth parent has placed the child for adoption
pursuant to Section 8800.5.
SEC. 10. Section 8613.5 of the Family
Code is amended to read:
8613.5. (a) (1) If it is impossible or impracticable for either
prospective adoptive parent to make an appearance in person, and the
circumstances are established by clear and convincing documentary
evidence, the court may, in its discretion, waive
do either of the following:
(A) Waive the personal appearance
of the prospective adoptive parent. The appearance may be made for
the prospective adoptive parent by counsel, commissioned and
empowered in writing for that purpose. The power of attorney may be
incorporated in the adoption petition.
(B) Authorize the prospective adoptive parent to appear by
telephone, videoconference, or other remote electronic means that the
court deems reasonable, prudent, and reliable.
(2) For purposes of this section, if the circumstances that make
an appearance in person by a prospective adoptive parent impossible
or impracticable are temporary in nature or of a short duration, the
court shall not waive the personal appearance of that prospective
adoptive parent.
(b) If the prospective adoptive parent is permitted to appear by
counsel, the agreement may be executed and acknowledged by the
counsel, or may be executed by the absent party before a notary
public, or any other person authorized to take acknowledgments
including the persons authorized by Sections 1183 and 1183.5 of the
Civil Code.
(c) If the prospective adoptive parent is permitted to appear by
counsel, or otherwise, the court may, in its discretion, cause an
examination of the prospective adoptive parent, other interested
person, or witness to be made upon deposition, as it deems necessary.
The deposition shall be taken upon commission, as prescribed by the
Code of Civil Procedure, and the expense thereof shall be borne by
the petitioner.
(d) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition shall be filed in the office of the clerk of
the court.
(e) The provisions of this section permitting an appearance by
counsel or electronically pursuant to subparagraph (B) of
paragraph (1) of subdivision (a) are equally applicable to the
spouse of a prospective adoptive parent who resides with the
prospective adoptive parent outside this state.
(f) If, pursuant to this section, neither prospective adoptive
parent need appear before the court, the child proposed to be adopted
need not appear. If the law otherwise requires that the child
execute any document during the course of the hearing, the child may
do so through counsel.
(g) If none of the parties appears, the court may not make an
order of adoption until after a report has been filed with the court
pursuant to Section 8715, 8807, 8914, or 9001.
SEC. 11. Section 8700 of the Family
Code is amended to read:
8700. (a) Either birth parent may relinquish a child to the
department, county adoption agency, or licensed adoption agency for
adoption by a written statement signed before two subscribing
witnesses and acknowledged before an authorized official of the
department, county adoption agency, or licensed adoption agency. The
relinquishment, when reciting that the person making it is entitled
to the sole custody of the child and acknowledged before the officer,
is prima facie evidence of the right of the person making it to the
sole custody of the child and the person's sole right to relinquish.
(b) A relinquishing parent who is a minor has the right to
relinquish his or her child for adoption to the department, county
adoption agency, or licensed adoption agency, and the relinquishment
is not subject to revocation by reason of the minority.
minority, or because the parent or guardian of the
relinquishing minor parent was not served with notice that the
relinquishing minor parent relinquished his or her child for
adoption, unless the relinquishing minor parent has previously
provided written authorization to serve his or her parent or guardian
with that notice.
(c) If a relinquishing parent resides outside
this state and the child is being cared for and is or will
be placed for adoption by the department, county adoption agency, or
a licensed adoption agency, the relinquishing the
other parent has relinquished the child for adoption, the
parent residing out of state may relinquish the child
to the department, county adoption agency, or licensed
adoption agency by a written statement signed by
the relinquishing parent before a notary on a form
prescribed by the department, and previously signed by an authorized
official of the department, county adoption agency, or licensed
adoption agency that signifies the willingness of the department,
county adoption agency, or licensed adoption agency to accept the
relinquishment.
(d) If a relinquishing parent and child reside
outside this state and the child will be cared for and will
be placed for adoption by and the other parent has not
relinquished the child for adoption to the department, county
adoption agency, or licensed adoption agency, the
relinquishing parent residing out of state may
relinquish the child to the department, county adoption agency, or
licensed adoption agency by a written statement signed by the
relinquishing parent, after that parent has satisfied
the following requirements:
requirements have been satisfied:
(1) Prior to signing the relinquishment, the relinquishing parent
shall have received, from a representative of an agency licensed or
otherwise approved to provide adoption services under the laws of the
relinquishing parent's state of residence, the same counseling and
advisement services as if the relinquishing parent resided in this
state.
(2) The relinquishment shall be signed before a representative of
an agency licensed or otherwise approved to provide adoption services
under the laws of the relinquishing parent's state of residence
whenever possible or before a licensed social worker on a form
prescribed by the department, and previously signed by an authorized
official of the department, county adoption agency, or licensed
adoption agency, that signifies the willingness of the department,
county adoption agency, or licensed adoption agency to accept the
relinquishment.
(e) (1) The relinquishment authorized by this section has no
effect until a certified copy is sent to, and filed with, the
department. The county adoption agency or licensed adoption agency
shall send that copy by certified mail, return receipt requested, or
by overnight courier or messenger, with proof
of delivery, to the department no earlier
than the end of the business day following the signing thereof. The
agency shall inform the birth parent that during this time period he
or she may request that the relinquishment be withdrawn and that, if
he or she makes the request, the relinquishment shall be withdrawn.
The relinquishment shall be final 10 business days after receipt of
the filing by the department, unless any of the following applies:
(A) The department sends written acknowledgment of receipt of the
relinquishment prior to the expiration of that 10-day period, at
which time the relinquishment shall be final.
(B) A longer period of time is necessary due to a pending court
action or some other cause beyond control of the department.
(C) The birth parent signs a waiver of right to revoke
relinquishment pursuant to Section 8700.5, in which case the
relinquishment shall become final as provided in that section.
(2) After the relinquishment is final, it may be rescinded only by
the mutual consent of the department, county adoption agency, or
licensed adoption agency to which the child was relinquished and the
birth parent or parents relinquishing the child.
(f) The relinquishing parent may name in the relinquishment the
person or persons with whom he or she intends that placement of the
child for adoption be made by the department, county adoption agency,
or licensed adoption agency.
(g) Notwithstanding subdivision (e), if the relinquishment names
the person or persons with whom placement by the department, county
adoption agency, or licensed adoption agency is intended and the
child is not placed in the home of the named person or persons or the
child is removed from the home prior to the granting of the
adoption, the department, county adoption agency, or licensed
adoption agency shall mail a notice by certified mail, return receipt
requested, to the birth parent signing the relinquishment within 72
hours of the decision not to place the child for adoption or the
decision to remove the child from the home.
(h) The relinquishing parent has 30 days from the date on which
the notice described in subdivision (g) was mailed to rescind the
relinquishment.
(1) If the relinquishing parent requests rescission during the
30-day period, the department, county adoption agency, or licensed
adoption agency shall rescind the relinquishment.
(2) If the relinquishing parent does not request rescission during
the 30-day period, the department, county adoption agency, or
licensed adoption agency shall select adoptive parents for the child.
(3) If the relinquishing parent and the department, county
adoption agency, or licensed adoption agency wish to identify a
different person or persons during the 30-day period with whom the
child is intended to be placed, the initial relinquishment shall be
rescinded and a new relinquishment identifying the person or persons
completed.
(i) If the parent has relinquished a child, who has been found to
come within Section 300 of the Welfare and Institutions Code or is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code, to the
department, county adoption agency, or a licensed adoption agency for
the purpose of adoption, the department, county adoption agency, or
licensed adoption agency accepting the relinquishment shall provide
written notice of the relinquishment within five court days to all of
the following:
(1) The juvenile court having jurisdiction of the child.
(2) The child's attorney, if any.
(3) The relinquishing parent's attorney, if any.
(j) The filing of the relinquishment with the department
terminates all parental rights and responsibilities with regard to
the child, except as provided in subdivisions (g) and (h).
(k) The department shall adopt regulations to administer the
provisions of this section.
SEC. 12. Section 8800.5 is added to the
Family Code , to read:
8800.5. (a) A parent who is a resident of this state who is
placing a child for independent adoption within this state shall
follow the procedures set forth in this chapter.
(b) A parent who is not a resident of this state who is placing a
child for independent adoption within this state may follow the
procedures set forth in this chapter or the procedures prescribed by
the state or territory in which the parent resides.
SEC. 13. Section 8801.3 of the Family
Code is amended to read:
8801.3. A Except when a child has been
placed for adoption following the procedures prescribed by another
state or territory, as authorized by subdivision (b) of Section
8800.5, a child shall not be considered to have been placed for
independent adoption unless each of the following is
true:
(a) Each birth parent placing the child for adoption has been
advised of his or her rights, and if desired, has been counseled
pursuant to Section 8801.5.
(b) The adoption service provider, each prospective adoptive
parent, and each birth parent placing the child have signed an
adoption placement agreement on a form prescribed by the department.
The signing of the agreement shall satisfy all of the following
requirements:
(1) Each birth parent shall have been advised of his or her rights
pursuant to Section 8801.5 at least 10 days before signing the
agreement, unless the adoption service provider finds exigent
circumstances that shall be set forth in the adoption placement
agreement.
(2) The agreement may not be signed by either the birth parents or
the prospective adoptive parents until the time of discharge of the
birth mother from the hospital. However, if the birth mother remains
hospitalized for a period longer than the hospitalization of the
child, the agreement may be signed by all parties at the time of or
after the child's discharge from the hospital but prior to the birth
mother's discharge from the hospital if her competency to sign is
verified by her attending physician and surgeon before she signs the
agreement.
(3) The birth parents and prospective adoptive parents shall sign
the agreement in the presence of an adoption service provider.
(4) The adoption service provider who witnesses the signatures
shall keep the original of the adoption placement agreement and
immediately forward it and supporting documentation as required by
the department to the department or delegated county adoption agency.
(5) The child is not deemed to be placed for adoption with the
prospective adoptive parents until the adoption placement agreement
has been signed and witnessed.
(6) If the birth parent is not located in this state or country,
the adoption placement agreement shall be signed before an adoption
service provider or, for purposes of identification of the birth
parent only, before a notary or other person authorized to perform
notarial acts in the state or country in which the birth parent is
located. This paragraph is not applicable to intercountry adoptions,
as defined in Section 8527, which shall be governed by Chapter 4
(commencing with Section 8900).
(c) The adoption placement agreement form shall include all of the
following:
(1) A statement that the birth parent received the advisement of
rights and the date upon which it was received.
(2) A statement that the birth parent understands that the
placement is for the purpose of adoption and that if the birth parent
takes no further action, on the 31st day after signing the adoption
placement agreement, the agreement shall become a permanent and
irrevocable consent to the adoption.
(3) A statement that the birth parent signs the agreement having
personal knowledge of certain facts regarding the prospective
adoptive parents as provided in Section 8801.
(4) A statement that the adoptive parents have been informed of
the basic health and social history of the birth parents.
(5) A consent to the adoption that may be revoked as provided by
Section 8814.5.
(d) The adoption placement agreement shall also meet the
requirements of the Interstate Compact on the Placement of Children
in Section 7901.
(e) This section shall become operative on January 1, 1995.
SEC. 14. Section 8804 of the Family
Code is amended to read:
8804. (a) Whenever the petitioners move to withdraw the petition
for the adoption or to dismiss the proceeding, the clerk of the court
in which the proceeding is pending shall immediately notify the
department at Sacramento of the action. The department or the
delegated county adoption agency shall file a full report with the
court recommending a suitable plan for the child in every case where
the petitioners move to withdraw the petition for the adoption or
where the department or delegated county adoption agency recommends
that the petition for adoption be denied and shall appear before the
court for the purpose of representing the child.
(b) Notwithstanding the withdrawal or dismissal of the petition,
the court may retain jurisdiction over the child for the purposes of
making any order for the child's custody that the court deems to be
in the child's best interest.
(c) If a birth parent who did not place a child for adoption as
specified in Section 8801.3 has refused to give the required consent,
or a birth parent revokes consent as specified in Section 8814.5,
the court shall order the child shall be
restored to the care and custody of the birth parent or parents
subject to the provisions of Section
3041. 3041, unless the court orders
otherwise.
SEC. 15. Section 8807 of the Family
Code is amended to read:
8807. (a) Except as provided in subdivisions (b) and (c), within
180 days after receiving 50 percent of the fee, the department or
delegated county adoption agency shall investigate the proposed
independent adoption and, after the remaining balance of the fee is
paid, submit to the court a full report of the facts disclosed by its
inquiry with a recommendation regarding the granting of the
petition. If the petitioners have a valid preplacement
evaluation or a valid private agency adoption home study, as
described in paragraph (2) of subdivision (a) of Section 8810, and no
new information has been discovered or events have occurred
subsequent to the approval of the evaluation or home study that
create a reasonable belief that further investigation is
necessary, the department or delegated county adoption agency may
elect not to reinvestigate any matters covered in the evaluation or
home study.
(b) If the investigation establishes that there is a serious
question concerning the suitability of the petitioners, the care
provided to the child, or the availability of the consent to
adoption, the report shall be filed immediately.
(c) (1) In its discretion, the court may
allow additional time for the filing of the report, after at least
five days' notice to the petitioner or petitioners and an opportunity
for the petitioner or petitioners to be heard with respect to the
request for additional time.
(2) If the investigation and report is not completed within 210
days after the adoption petition was initially filed, the petitioner
or petitioners may request the court to issue, and a court may issue,
an order requiring the department or delegated county adoption
agency to complete the investigation within 30 days, and providing
that failure to do so shall be cause for the court to refer the
investigation to a licensed private agency for completion. If the
investigation is referred to a licensed private agency, the
department or delegated county adoption agency shall turn over all
fees for the case to the private agency. Before ruling on the
request, the court shall consider the reason or reasons for the
delay, including, but not limited to, a failure by the petitioner or
petitioners to promptly cooperate with the requests of the department
or delegated county adoption agency.
(d) If a petitioner is a resident of a state other than
California, an updated and current homestudy report, conducted and
approved by a licensed adoption agency or other authorized resource
in the state in which the petitioner resides, shall be reviewed and
endorsed by the department or delegated county adoption agency, if
the standards and criteria established for a homestudy report in the
other state are substantially commensurate with the homestudy
standards and criteria established in California adoption
regulations.
(e) This section shall become operative on October 1, 2008.
SEC. 16. Section 8808 of the Family
Code is amended to read:
8808. (a) The department or delegated county adoption agency
shall interview the petitioners within 45 working days, excluding
legal holidays, after the filing of the adoption petition.
(b) The department or delegated county adoption agency shall
interview all persons from whom consent is required and whose
addresses are known as soon as 50 percent of the fee has been paid to
the department or delegated county adoption agency. The interview
with the placing parent or parents shall include, but not be limited
to, discussion of any concerns or problems that the parent has with
the placement and, if the placing parent was not interviewed as
provided in Section 8801.7, the content required in that interview.
At the interview, the agency shall give the parent an opportunity to
sign either a statement revoking the consent, or a waiver of the
right to revoke consent, as provided in Section 8814.5.
8814.5, unless the parent has already signed a waiver
or the time period allowed to revoke consent has expired.
(c) In order to facilitate the interview described in this
section, at the same time the petition is filed with the
court, the petitioners shall file with the district office of the
department or with the delegated county adoption agency responsible
for the investigation of the adoption, a copy within
five business days of filing the petition, the petitioners
shall provide the department or delegated county adoption agency a
stamped file copy of the petition together with 50 percent of
the fee, a copy of any valid preplacement evaluation or any
valid private agency adoption home study, as described in paragraph
(2) of subdivision (a) of Section 8810, and the names,
addresses, and telephone numbers of all parties to be interviewed, if
known.
(d) This section
shall become operative on October 1, 2008 .
SEC. 17. Section 8814 of the Family
Code is amended to read:
8814. (a) Except as provided in Section 7662, the consent of the
birth parent or parents who did not place the child for adoption, as
described in Section 8801.3, to the adoption shall be signed in the
presence of an agent of the department or of a delegated county
adoption agency on a form prescribed by the department. The consent
shall be filed with the clerk of the appropriate superior court.
(b) The consent described in subdivision (a), when reciting that
the person giving it is entitled to the sole custody of the child and
when acknowledged before that agent, is prima facie evidence of the
right of the person making it to the sole custody of the child and
that person's sole right to consent.
(c) If the birth parent described in subdivision (a) is located
outside this state for an extended period of time unrelated to the
adoption at the time of signing the consent, the consent may be
signed before a notary or other person authorized to perform notarial
acts, and in that case the consent of the department or of the
delegated county adoption agency is also necessary.
(d) A birth parent who is a minor has the right to sign a consent
for the adoption of the birth parent's child and the consent is not
subject to revocation by reason of minority.
minority, or because the parent or guardian of the relinquishing
minor parent was not served with notice that the relinquishing minor
parent consented to the adoption, unless the relinquishing
minor parent has previously provided written authorization to serve
his or her parent or guardian with that notice.
(e) This section shall become operative on January 1, 1995.
SEC. 18. Section 8815 of the Family
Code is amended to read:
8815. (a) Once the revocable consent to adoption has become
permanent as provided in Section 8814.5, the consent to the adoption
by the prospective adoptive parents may not be withdrawn.
(b) Before the time when the revocable consent becomes permanent
as provided in Section 8814.5, the birth parent or parents may
request return of the child. In such a that
case the child shall immediately be returned to the
requesting birth parent or parents so requesting.
parents, unless a court orders otherwise.
(c) If the person or persons with whom the child has been placed
have concerns that the birth parent or parents requesting return of
the child are unfit or present a danger of harm to the child, that
person's or those persons' only option is to report their
concerns to the investigating adoption agency and
person or those persons may report their concerns to the
appropriate child welfare agency. These concerns shall not be a basis
for failure to immediately return the child.
child, unless a court orders otherwise.
(d) This section shall become operative on January 1, 1995.
SEC. 19. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.