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