BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1040


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          Date of Hearing:  June 14, 2016


                        ASSEMBLY COMMITTEE ON HUMAN SERVICES


                                Susan Bonilla, Chair


          SB  
          1040 (Hill) - As Amended June 8, 2016


          SENATE VOTE:  39-0


          SUBJECT:  Adoptions:  rehoming


          SUMMARY:  Requires the Department of Social Services to  
          establish a working group to examine the unique challenges  
          facing adoptive families, and makes it unlawful for anyone to  
          solicit custody of a child without pursuing a legal adoption or  
          guardianship, as specified. 


          Specifically, this bill:  


          1)Makes Legislative findings and declarations acknowledging that  
            certain adoptive families face unique challenges and stating  
            Legislative intent to ensure that adoptive families receive  
            necessary supports to maintain the family unit, and when  
            necessary, find new, permanent homes for youth.


          2)Requires the Department of Social Services (DSS) to create a  
            working group, in consultation with specified stakeholders and  
            to convene by June 1, 2017, to review the unique challenges  








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            facing families with adopted children and children with  
            special needs and to identify resources within the community  
            that will assist families with these challenges, and to make  
            recommendations to the Legislature by June 1, 2018, as  
            specified, regarding services for these families.


          3)Requires the working group, when developing its  
            recommendations, to consider all of the following:


             a)   The specific challenges facing families with children  
               with special needs, children adopted through the foster  
               care system, and internationally adopted children;


             b)   The distinct resources that are available to families  
               with specific circumstances, as specified;


             c)   Training and education necessary to equip mental health  
               professionals with the requisite tools to provide these  
               families with appropriate services;


             d)   Means for recruiting families capable of adopting  
               children coming out of disrupted adoptions; and


             e)   The feasibility of creating a clearinghouse of  
               individuals with expertise in addressing the needs of, and  
               finding placements for, children at risk of unlawful  
               custody transfer, as specified.


          4)Defines "rehome" to mean an action taken to provide a new,  
            permanent home for a minor with a person or persons other than  
            the minor's parents, with the following exceptions:









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              a)    A minor who is placed with a relative, as specified;  
                or


              b)    Temporary placement of a minor by a parent,  
                individual, or entity for a designated short-term period  
                with intent to return the minor, as specified. 


          5)Makes unlawful the act of soliciting, by electronic or any  
            other means, to rehome a child under the age of 14 and to  
            subsequently rehome that minor without pursuing a legal  
            adoption or guardianship within 90 days of taking the child  
            into physical custody.


          EXISTING LAW:   


          1)Allows for a parent to relinquish a child to DSS, 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.  (FAM  
            8700 et seq.)


          2)Allows for agency and independent adoptions of children.  (FAM  
            8700 et seq. and 8880 et seq.)


          3)Establishes a procedure to declare a child free from parental  
            custody and control.  (FAM 7840 et seq.)


          4)States that any person or organization without proper  
            authorization who advertises in any periodical or newspaper,  
            by radio, or other public medium, that they will place  








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            children for adoption, or accept, supply, provide or obtain  
            children for option, is guilty of a misdemeanor.  (FAM 8609)


          5)States that any person, other than a birth parent or any  
            organization, association, or corporation with proper  
            authorization, who places any child for adoption is guilty of  
            a misdemeanor. (FAM 8609)


          6)States that every parent of any child under the age of 14, and  
            every person to whom any such child has been confided for  
            nurture, or education, which deserts such child in any place  
            with intent to abandon the child is guilty of a misdemeanor.   
            (PEN 271)


          7)Requires prospective adoptive parents to meet certain  
            requirements prior to receiving custody of a minor. (FAM 8700  
            et seq.)


          FISCAL EFFECT: According to the Senate Appropriations Committee  
          on May 9, 2016, this bill may result in the following costs:


              1)   DSS working group  :  One-time costs potentially in excess  
               of $150,000 (General Fund) to establish the working group,  
               collaborate with working group members to develop  
               recommendations, and submit the report to the Legislature.


              2)   Judicial Council  :  Minor costs (General Fund) to  
               participate in the working group.


          COMMENTS:  










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          Adoption proceedings:  Adoption is a legal process by which  
          parental rights are given permanently to adoptive parents and a  
          child is taken into the home of a family as a permanent family  
          member.  Many children are adopted out of the foster care  
          system, though some are placed for adoption by their biological  
          parents who choose to relinquish their parental rights and  
          forfeit custody of their child.  Currently there are over 62,000  
          children and youth in California's child welfare system, and  
          while a number of these children eventually reunify with their  
          birth families, a significant portion of them remain in foster  
          care for long periods of time.  While in foster care, children  
          may live temporarily with relatives, in foster family homes, or  
          in other settings.  If a child is unable to be reunited with his  
          or her birth family, a county social worker may try and find a  
          safe and loving adoptive family for the child.  Adoptions are  
          divided into several categories:


           Agency adoption  :  In an agency adoption, a public or private  
          adoption agency that is licensed through DSS places a child for  
          adoption.  The birth parent's parental rights are terminated by  
          the courts or by relinquishment of the parents, thus the  
          adoption agency becomes legally responsible for the care and  
          well-being of the child until an adoptive family is found.  The  
          agency is responsible for reviewing and approving prospective  
          adoptive parents and ensuring that prospective families are  
          capable of handling the unique needs and challenges of the  
          child.


           Independent adoption  :  In an independent adoption, birth parents  
          choose prospective adoptive parents and place the child directly  
          with them.  Birth parents are required to receive an advisement  
          of rights, responsibilities, and options from an Adoption  
          Service Provider, and must sign an Independent Adoption  
          Placement Agreement.  This agreement becomes an irrevocable  
          consent to adoption within 30 days, unless otherwise revoked  
          within the 30 day period.









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           Intercountry adoption  :  Intercountry adoptions consist of  
          prospective parents adopting foreign-born children for whom the  
          federal law makes a special immigration entry visa available.   
          Intercountry adoptions are often facilitated by licensed private  
          adoption agencies that specialize in assisting families adopt  
          foreign-born children that have been classified as orphans by  
          the United States Citizenship and Immigration Services.


          In some cases, adoptions are unsuccessful.  According to the  
          federal Office of the Administration for Children & Families,  
          between 10% and 25% of adoptions are disrupted.  The term  
          "disruption" is used to define an instance when a child has been  
          placed with an adoptive family but the adoption is not yet  
          legal, while "dissolution" refers to the termination of the  
          legal relationship between the adoptive parents and the adopted  
          child, either voluntarily or involuntarily.  These instances  
          often result in the child returning to the child welfare system  
          or being placed with another adoptive family. 


          Government Accountability Office report on unregulated custody  
          transfer:  In September 2015, the United States Government  
          Accountability Office (GAO) published a report entitled "Child  
          Welfare:  Steps Have Been Taken to Address Unregulated Custody  
          Transfers of Adopted Children," which examined recent media  
          reports of a practice known as "rehoming." Rehoming consists of  
          the unregulated custody transfer of adopted children by their  
          adoptive parents to new homes that are often found on the  
          internet or other unregulated networks.  These unregulated  
          transfers are conducted without the safeguards and oversight of  
          the courts or the child welfare system and prospective homes are  
          not subject to the same scrutiny that prospective parents are  
          subject to when going through  legal adoption processes,  
          including home studies, criminal background checks, and  
          pre-adoption training.  Unlike adoptions that result in  
          disruption or dissolution, unregulated transfers occur when  
          parents intend to permanently transfer custody of their child to  








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          a new family without following the specific steps taken during  
          the disruption or dissolution process.  Because unregulated  
          custody transfers are conducted outside the purview of the law,  
          it is unknown how many of these transfers occur. 


           Special needs of adopted children :  The GAO report found that  
          adoptive families face unique challenges when adopting children,  
          particularly those children adopted internationally or from  
          foster care and who likely need special care as a result of  
          prolonged institutionalization and/or frequent trauma.  Children  
          in foster care may be more likely to have special behavioral and  
          mental health needs than children that are not involved in the  
          child welfare system; a national survey conducted in 2009 found  
          that 42% of children ages 18 months to 17 years who were placed  
          in a foster family home were at risk for an emotional or  
          behavioral problem and potentially in need of mental health  
          services.


          Studies indicate that abuse and maltreatment can cause physical  
          changes in the development of a child's brain, thereby  
          increasing a child's vulnerability to depression, post-traumatic  
          stress disorder, and other behavioral issues.   
          Institutionalization, for example, can lead to deprivation of  
          affection and neglect for children placed in these facilities  
          and can result in poor attention span, hyperactivity, difficulty  
          in regulating emotion, increased levels of anxiety, and the  
          potential for attachment disorders.  Severe behavioral or mental  
          health issues can result in the violent behavior by the adopted  
          child.  According to the GAO report, in 2014, 23% of dissolved  
          adoption cases nationwide were the result of the adopted child  
          posing a threat to the safety of other children in the home.


          According to the GAO report, families may choose to pursue an  
          unregulated custody transfer because they are not sufficiently  
          prepared for the unique challenges faced by the adopted child  
          caused by inadequate information about the child's health, an  








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          insufficient home study to ensure a good match, and/or minimal  
          pre-adoption training for parents.  Despite the fact that  
          adopted children may continue to face emotional and behavioral  
          problems post-adoption, services to help adoptive families can  
          be difficult to secure as children with severe behavioral needs  
          may require more intensive services.


          Need for this bill:  According to the author, "'Rehoming' is an  
          issue that has garnered public attention as headlines have  
          highlighted dramatic failures in international adoptions.   
          California laws already clearly prohibit parents from abandoning  
          their children, but there also needs to be clarity in the penal  
          code that soliciting and taking children unlawfully is a crime.   
          [This bill] allows prosecutors to go after these unscrupulous  
          criminals, many of which are human traffickers.  Additionally,  
          [this bill] will help frame the conversation and inform the  
          Legislature on the unique needs of internationally adopted  
          children, many of which are from war-torn countries with  
          terrible emotional scarring.  The working group led by  
          Department of Social Services will help provide feedback on how  
          better to help these children and families that adopt them."


          Staff comments:  While this bill addresses the unlawful custody  
          transfer of minors who are under 14 years of age, the bill does  
          not address the unlawful custody transfer of older minors.   
          Should this bill move forward, the author may wish to consider  
          expanding the scope of the bill to include minors who are 14  
          years of age and older.


          Also, the bill currently makes it unlawful to transfer custody  
          of a minor, unless a lawful guardianship proceeding or adoption  
          proceeding is initiated within 90 days of taking physical  
          custody of a child.  This process may conflict with current  
          adoption proceedings in which prospective adoptive parents must  
          first undergo a screening and approval process before receiving  
          a child into their home.  This bill may circumvent that existing  








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          process by allowing an adopted minor to be placed in a home  
          prior to the completion of the screening process.  Should this  
          bill move forward, the author may wish to ensure that the  
          provisions of this bill do not conflict with current law  
          regarding adoptions in California.


          Recommended amendments:  Because the term "rehome" is an  
          unofficial name for the unlawful transfer of custody of adopted  
          children and not a term or practice recognized in statute, and  
          in order to ensure that prospective adoptive families receive  
          necessary information about the adoption process and to provide  
          technical clarification of certain language in the bill,  
          committee staff recommends the following amendments


             1)   Committee staff recommends the following amendments  
               starting on page 3 of the bill:


              18


            9221.   (a)The Legislature acknowledges that adoptive families  



              19


          often face special challenges.  This is particularly true in the  
          case 
              20


          of international adoptions, adoptions of   special needs   children  
           with special needs  , 
              21









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          and adoptions of dependent children who   often   have experienced 
              22


          abuse, neglect, and  often  multiple placements.  The Legislature  
          finds and 
              23


          declares that it is the public policy of the State of California  
          to 
              24


          assist adoptive families and adopted children, and intends this 
              25


          section to ensure that these families receive the support needed  
          to 
              26


          maintain the family unit, and when necessary, find new,  
          permanent 
              27


          homes for youth.
              28


            (b)(1)In order to address and prevent the circumstances in 
              29


          which an adoptive parent   , individual, or entity having custody  
          of  








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               30


            an adopted minor   seeks to   rehome    engage in the unlawful custody  
          transfer of    the minor  a child  , the State Department 
              31


          of Social Services shall, in consultation with child advocacy 
              32


          organizations, attorneys specializing in adoption and  
          guardianships, 
              33


          the Judicial Council, foster caregiver organizations,  county  
          welfare officials, minor dependency counsel,  and individuals 
              34


          with expertise in the area of positive youth development,  
          establish 
              35


          a working group to review the challenges facing families with 
              36


          adopted   and special needs   children, to identify resources within  

              37


          the community that will assist families with these challenges,  
          and 
              38








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          to make recommendations to the Legislature as to the services  
          that 
              39


          may be helpful to these families.



             2)   Committee staff recommends the following amendments  
               starting on  page 4 of the bill:


               1


            (2)In developing the recommendations, the working group shall 


               2


          consider all of the following:
             (A) Education and resources that would benefit prospective  
              adoptive families prior to an adoption and whether certain  
              services and education should be required before an adoption  
              can be completed.
                3


              (A)  (B)  The specific challenges facing the following families: 
               4


          families   with special needs children    of children with special  
          needs  , families with children adopted 
               5








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          through the foster care system, and families with  
          internationally 
               6


          adopted children.
               7


              (B)  (C)  The distinct resources that are available to the  
          different 
               8


          types of families specified in subparagraph (A), and whether any  

               9


          of the resources available to one type of family would also be 
              10


          beneficial to another type.
              11


              (C)  (D)  The training and education that is necessary to equip  
          mental 
              12


          health professionals with the tools necessary to provide the  
          families 
              13










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          specified in subparagraph (A) with services tailored to their  
          unique 
              14


          needs.
              15


              (D)  (E)  How to effectively recruit more prospective adoptive 
              16


          families that are able to provide new, permanent, and loving  
          homes 
              17


          to children coming out of disrupted adoptions.
              18


              (E)  (F)  The feasibility of creating a clearinghouse of persons  
          and 
              19


          entities that are knowledgeable in addressing the needs of, and 
              20


          finding subsequent placements for, children at risk of   being   
              21


            rehomed,    having their custody unlawfully transferred,  including  
          adoption agencies, social workers, attorneys, 
              22









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          mental health professionals, and prospective adoptive parents.
              23


            (c)(1)The working group shall meet no later than   June  April 1,  
          2017. 
              24


          The recommendations developed pursuant to this section shall be 
              25


          submitted in a report to the appropriate policy committees of  
          the 
              26


          Legislature on or before   June  April  1, 2018.
              27


            (2)A report to be submitted pursuant to this subdivision shall  

              28


          be submitted in compliance with Section 9795 of the Government 
              29


          Code.
              30


            (3)The requirement for submitting a report pursuant to this 
              31









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          subdivision is inoperative on June 1, 2022, pursuant to Section 
              32


          10231.5 of the Government Code.
              33


            SEC. 2.   Section 272.5 is added to the Penal Code, to read:
              34


            272.5.   (a)It is unlawful for a person to solicit by any  
          means, 
              35


          including, but not limited to, electronic communication via the 
              36


          Internet, to   rehome   a minor  unlawfully transfer custody of a  
          child  under 14 years of age and to 
              37


          subsequently   rehome     the minor    unlawfully transfer custody of a  
          child  without initiating a lawful 
              38


          guardianship proceeding or adoption proceeding within 90 days 
              39


          of taking physical custody of the minor consistent with the 
              40









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          requirements of Division 4 (commencing with Section 1400) of the  




             1)   Committee staff recommends the following amendments  
               starting on page 5 of the bill:  


                1


          Probate Code or Division 13 (commencing with Section 8500) of 


               2


          the Family Code. A violation of this section is punishable by 
               3


          imprisonment pursuant to subdivision (h) of Section 1170, in a 
               4


          county jail not exceeding one year, by a fine not exceeding one 
               5


            thousand dollars ($1,000), or by both that fine and  
          imprisonment.
                 6


             (b)For purposes of this section, rehome means an action 
                7









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           taken to provide a new, permanent home for a minor with a person  

                 8


           or persons other than the minors parents, except as provided in 
                 9


             subdivision (c).
          
          DOUBLE REFERRAL  .  This bill has been double-referred.  Should  
          this bill pass out of this committee, it will be referred to the  
          Assembly Judiciary Committee.



          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file.




          Opposition


          None on file.












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          Analysis Prepared by:Kelsy Castillo / HUM. S. / (916)  
          319-2089