BILL NUMBER: AB 2433 CHAPTERED 09/30/00 CHAPTER 937 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2000 APPROVED BY GOVERNOR SEPTEMBER 29, 2000 PASSED THE ASSEMBLY AUGUST 31, 2000 PASSED THE SENATE AUGUST 30, 2000 AMENDED IN SENATE AUGUST 10, 2000 AMENDED IN SENATE JULY 6, 2000 AMENDED IN SENATE JUNE 5, 2000 AMENDED IN ASSEMBLY MARCH 30, 2000 INTRODUCED BY Assembly Member Wright FEBRUARY 24, 2000 An act to amend Sections 7660, 7662, 8801.3, 8802, 8814.5, and 9102 of the Family Code, relating to adoption of children. LEGISLATIVE COUNSEL'S DIGEST AB 2433, R. Wright. Adoption of children. (1) Existing law requires, if a mother relinquishes or consents to, or proposes to relinquish and consent to, the adoption of a child who does not have a presumed father, or who otherwise becomes the subject of an adoption proceeding, and the alleged father has not in writing denied paternity, waived his right to notice, or voluntarily consented to adoption, the agency or person to whom the child has been or is to be relinquished, or the mother or the person having legal custody of the child, to file a petition to terminate the father's parental rights, except as specified. This bill would additionally provide that the prospective adoptive parent may file a petition to terminate the father's parental rights, as specified. (2) Existing law provides the signing of an adoption placement agreement shall satisfy requirements including, if a parent is not located in this state, the adoption placement agreement shall be signed before an adoption service provider or a notary or other person authorized to perform notarial acts in the state where the birth parent is located. This bill would revise that provision to state that 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 a notary or other person authorized to perform notarial acts in the state or country where the birth parent is located. The bill would expressly specify that these provisions do not apply to intercountry adoptions. (3) Existing law provides a list of persons who may petition the court to adopt a child, which list includes, among others, a grandparent, aunt, uncle, first cousin, or sibling. This bill would expand that list to include any relative of the child, as specified. (4) Under existing law, a birth parent or parents may revoke a consent to adoption within 90 days after signing. This bill would specify procedures whereby the birth parent or parents may void the revocation and reinstate the consent. By increasing the duties of local employees, this bill would create a state-mandated local program. (5) Existing law provides that an action to vacate, set aside, or nullify an order of adoption based on fraud shall be commenced within 5 years after entry of the order. This bill would shorten that period to 3 years. (6) The bill would make related, technical changes. (7) 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, including the creation of a State Mandates Claims Fund to pay the costs of mandates that do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. 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. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 7660 of the Family Code is amended to read: 7660. If a mother relinquishes for or consents to, or proposes to relinquish for or consent to, the adoption of a child who has a presumed father under Section 7611, the father shall be given notice of the adoption proceeding and have the rights provided under Part 2 (commencing with Section 8600) of Division 13, unless the father's relationship to the child has been previously terminated or determined by a court not to exist or the father has voluntarily relinquished for or consented to the adoption of the child. SEC. 2. Section 7662 of the Family Code is amended to read: 7662. If a mother relinquishes for or consents to, or proposes to relinquish for or consent to, the adoption of a child who does not have a presumed father under Section 7611, or if a child otherwise becomes the subject of an adoption proceeding and the alleged father, if any, has not, in writing, denied paternity, waived his right to notice, or voluntarily relinquished for or consented to the adoption, 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 father, unless either of the following occurs: (a) The father's relationship to the child has been previously terminated or determined not to exist by a court. (b) The father has been served as prescribed in Section 7666 with a written notice alleging that he is or could be the natural 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. SEC. 3. Section 8801.3 of the Family Code is amended to read: 8801.3. A child shall not be considered to have been placed for 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 91st 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. 4. Section 8802 of the Family Code is amended to read: 8802. (a) (1) Any of the following persons who desire to adopt a child may, for that purpose, file a petition in the county in which the petitioner resides: (A) An adult who is related to the child or the child's half sibling by blood or affinity, including all relatives whose status is preceded by the words "step," "great," "great-great," or "grand," or the spouse of any of these persons, even if the marriage was terminated by death or dissolution. (B) A person named in the will of a deceased parent as an intended adoptive parent where the child has no other parent. (C) A person with whom a child has been placed for adoption. (D) A legal guardian who has been the child's legal guardian for more than one year. However, if the parent nominated the guardian for a purpose other than adoption for a specified time period, or if the guardianship was established pursuant to Section 360 of the Welfare and Institutions Code, the guardianship shall have been in existence for not less than three years. (2) If the child has been placed for adoption, a copy of the adoptive placement agreement shall be attached to the petition. The court clerk shall immediately notify the department at Sacramento in writing of the pendency of the proceeding and of any subsequent action taken. (b) The petition shall contain an allegation that the petitioners will file promptly with the department or delegated county adoption agency information required by the department in the investigation of the proposed adoption. The omission of the allegation from a petition does not affect the jurisdiction of the court to proceed or the validity of an adoption order or other order based on the petition. (c) The caption of the adoption petition shall contain the names of the petitioners, but not the child's name. The petition shall state the child's sex and date of birth and the name the child had before adoption. (d) If the child is the subject of a guardianship petition, the adoption petition shall so state and shall include the caption and docket number or have attached a copy of the letters of the guardianship or temporary guardianship. The petitioners shall notify the court of any petition for guardianship or temporary guardianship filed after the adoption petition. The guardianship proceeding shall be consolidated with the adoption proceeding. (e) The order of adoption shall contain the child's adopted name, but not the name the child had before adoption. (f) This section shall become operative on January 1, 1995. SEC. 5. Section 8814.5 of the Family Code is amended to read: 8814.5. (a) After a consent to the adoption is signed by the birth parent or parents pursuant to Section 8801.3 or 8814, the birth parent or parents signing the consent shall have 90 days to take one of the following actions: (1) Sign and deliver to the department or delegated county adoption agency a written statement revoking the consent and requesting the child to be returned to the birth parent or parents. After revoking consent, in cases where the birth parent or parents have not regained custody, or the birth parent or parents have failed to make efforts to exercise their rights under subdivision (b) of Section 8815, a written statement reinstating the original consent may be signed and delivered to the department or delegated county adoption agency, in which case the revocation of consent shall be void and the remainder of the original 90 days shall be reinstated. However, in cases in which the birth parent or parents have regained custody, upon the delivery of such a statement to the department or delegated county adoption agency, the revocation of consent shall be void and a new 90-day period shall commence. The birth mother shall be informed of the operational timelines associated with this section at the time of signing of the statement reinstating the original consent. (2) Sign a waiver of the right to revoke consent on a form prescribed by the department in the presence of a representative of the department or delegated county adoption agency. If neither a representative of the department nor a representative of a delegated county adoption agency is reasonably available, the waiver of the right to revoke consent may be signed in the presence of a judicial officer of a court of record if the birth parent is represented by independent legal counsel. "Reasonably available" means that a representative from either the department or the delegated county adoption agency is available to accept the signing of the waiver within 10 days and is within 100 miles of the location of the birth mother. An adoption service provider may assist the birth parent or parents in any activity where the primary purpose of that activity is to facilitate the signing of the waiver with the department, a delegated county agency, or a judicial officer. The adoption service provider or another person designated by the birth parent or parents may also be present at any interview conducted pursuant to this section to provide support to the birth parent or parents. The waiver of the right to revoke consent may not be signed until an interview has been completed by the department or delegated county adoption agency unless the waiver of the right to revoke consent is signed in the presence of a judicial officer of a court of record as specified in this section, in which case the interview and the witnessing of the signing of the waiver shall be conducted by the judicial officer. Within 10 working days of a request made after the department, the delegated county adoption agency, or the court has received a copy of the petition for the adoption and the names and addresses of the persons to be interviewed, the department, the delegated county adoption agency, or the court shall interview, at the department or agency office or the court, any birth parent requesting to be interviewed. However, the interview, and the witnessing of the signing of a waiver of the right to revoke consent of a birth parent residing outside of California or located outside of California for an extended period of time unrelated to the adoption may be conducted in the state where the birth parent is located, by any of the following: (A) A representative of a public adoption agency in that state. (B) A judicial officer in that state where the birth parent is represented by independent legal counsel. (C) An adoption service provider. (3) Allow the consent to become a permanent consent on the 91st day after signing. (b) The consent may not be revoked after a waiver of the right to revoke consent has been signed or after 90 days, beginning on the date the consent was signed or as provided in paragraph (1) of subdivision (a), whichever occurs first. (c) This section shall become operative on January 1, 1995. SEC. 6. Section 9102 of the Family Code is amended to read: 9102. (a) An action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground, except fraud, shall be commenced within one year after entry of the order. (b) An action or proceeding of any kind to vacate, set aside, or nullify an order of adoption, based on fraud, shall be commenced within three years after entry of the order. SEC. 7. Notwithstanding Section 17610 of the Government Code, 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. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund.