BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
AB 2674 A
Assembly Member Leno B
As Amended June 3, 2004
Hearing Date: June 15, 2004 2
Family Code 6
GMO:cjt 7
4
SUBJECT
Adoption: Relinquishment
DESCRIPTION
This bill would provide that an adoption relinquishment
that has been sent and filed with the Department of Social
Services by certified mail, return receipt requested or by
overnight courier with proof of delivery no later than the
end of the business day following its execution shall be
deemed filed and final five business days after receipt by
the department.
BACKGROUND
Current law provides for the relinquishment of a child by
his or her parent or parents to the Department of Social
Services or a licensed adoption agency for the purpose of
adoption. The relinquishment must be signed and properly
acknowledged but only after the relinquishing parent has
received from the authorized agency counseling and
advisement services. This rule is equally applicable to
relinquishing parents that reside in-state and outside of
the state.
The executed relinquishment has no effect until a certified
copy is filed with the Department of Social Services. Once
filed, the relinquishment is considered final, and may be
rescinded only by mutual consent of the department or
licensed adoption agency to which the child was
(more)
AB 2674 (Leno)
Page 2
relinquished and the birth parent or parents relinquishing
the child. The relinquishment is generally incorporated
into the petition for adoption of the child, which is filed
after the child is placed with the adoptive family.
However, if the relinquishment identifies the adoptive home
into which the child is to be placed, and the child is not
placed in that home, the department is obligated to give
notice to the relinquishing parent within 72 hours of that
decision not to place the child in that adoptive home. The
relinquishing parent, under existing law, has 30 days from
the date on which this notice was mailed, to rescind the
relinquishment. If the relinquishing parent does not
request rescission by the end of the 30-day period, the
department or licensed adoption agency is required to
select new adoptive parents for the child. If the
relinquishing parent and the department or licensed
adoption agency identify a different adoptive home during
the 30-day period, the initial relinquishment is rescinded
and a new one executed.
This bill would address that point in the adoption process
where the relinquishment has been properly executed and
then sent to the department for filing, which triggers the
final effect of the relinquishment and the rest of the
provisions relating to rescission of the relinquishment.
CHANGES TO EXISTING LAW
Existing law provides the process by which a birth parent
or parents may relinquish a child to the Department of
Social Services or to a licensed adoption agency for the
purpose of adoption of the child.
Existing law provides that a relinquishment has no effect
until a certified copy is filed with the department, and
once filed, it is final and may not be rescinded except by
mutual agreement by the department or the licensed adoption
agency and the birth parent.
This bill would require a licensed adoption agency to send
a certified copy of the relinquishment to the department,
by certified mail return receipt requested or by overnight
courier with proof of delivery, no later than the end of
the business day following the execution of the
AB 2674 (Leno)
Page 3
relinquishment.
This bill would provide that a relinquishment sent to the
department as described would be considered filed and final
five business days after it is received by the department.
COMMENT
1. Need for the bill
The author states that in practice, the Department of
Social Services (DSS) has interpreted the language of
the statute (the relinquishment is final when filed) to
mean that "the relinquishment is received, then a staff
member at DSS reviews the relinquishment to be sure it
has been executed properly and then acknowledges
receipt. It is with this acknowledgement that DSS
considers the birth parent's decision to terminate their
rights is final and binding." Until recently,
supporters and the sponsor of AB 2674 state, the
department has been able to process relinquishments
received (typically by fax) within two to three days,
thus allowing the birth and adoptive parents to move
forward with the adoption in reliance on the "permanent"
decision about the custody of the baby.
There have been "massive lay-offs" at DSS, the author
states, and the office responsible for reviewing and
acknowledging relinquishments has shrunk dramatically in
size. Presently, supporters say, there is only one
staff person and one secretary assigned to respond to
all relinquishment packets for the entire state.
The result of the reduction in staff size is the delay
now encountered by the proposed adoptive parents and the
birth parents who have relinquished their children for
adoption. According to the author's office the
department is now taking anywhere from four to six weeks
for a relinquishment to be considered filed and final -
a very long time in the context of a young child who is
being placed in an adoptive home, and in the context of
both sets of parents (birth and adoptive) who are in
limbo about the status of this child.
AB 2674 (Leno)
Page 4
This bill hopes to cure this problem by setting a time
limit of five business days for the relinquishment to be
considered filed and final after it is received by the
department.
2. Is five business days a realistic time frame,
considering departmental budget constraints? Would this
deprive department of needed time to review the
propriety of the relinquishment?
Current law does not set a time limit for the department
to process the filing of relinquishments, but this bill
would impose a limit of five business days after receipt
of the relinquishment, after which the filing would be
considered filed and final.
In order to ensure that the department has received the
relinquishment packet, this bill would require the
licensed adoption agency to send the relinquishment
packet within one business day of its execution, in a
manner that provides a proof of receipt, such as
registered mail, certified mail return receipt
requested, overnight mail with proof of delivery, or by
messenger.
By the proponents' own admission, the department used to
be able to process the relinquishments it received in
two to three days' time, but now cannot do so because of
staff cutbacks. The Department of Social Services is
expected to oppose this bill because the proposed
solution would not cure the problem.
If the department is not able to acknowledge and "file"
the certified copy of the relinquishment, the adoptive
parents would be able, under this bill, to proceed with
the filing of the adoption petition.
There are two views with regard to the effect of the
delayed filing of the relinquishment by the department.
One view is that the adoption proceeding is unreasonably
delayed, resulting in both adoptive parents and birth
parents being left in a state of uncertainty while
waiting for the department to act. Another is that the
long waiting period could result in the relinquishing
parent or parents changing their minds about the
AB 2674 (Leno)
Page 5
relinquishment to the adoptive parents and, since the
relinquishment is not final until filed, may want to
consider different adoptive parents or options, such as
a legal guardianship by a relative instead.
This tension is similar to the one the Committee dealt
with when it considered a bill to shorten the time
within which consent to adoption may be revoked, from 90
days to 30 days. At the time that bill (SB 104, Scott,
Chapter 688, Statutes of 2001) was heard, the proposal
was to reduce the revocation time period to 72 hours,
but was amended to reduce it instead from 90 days to 30
days.
While the proponents of this bill may wish to shorten
the time period for the relinquishment to become final
to five business days, it may be unrealistic to expect
that the department would be able to handle the workload
of complying with the five-day statute. The fact that
the relinquishment would be deemed "final" without
review by the department, thus depending solely on the
presumed competence and integrity of the licensed
adoption agency to provide the necessary protection
accorded birth parents, could expose the department to
untold liability. At the least, this process of deeming
the filing of a relinquishment final should parallel the
time requirement for considering a consent to adoption
to be irrevocable, thus permanent and final: 30 days.
In fact, the Department of Social Services, while not
yet ready with an official position, has informally
informed the author that it believes that the current
statute represents sound public policy and recognizes an
important oversight function of the department to ensure
the integrity of the relinquishment stage of the
adoption process. The department is "firmly against any
timeframe in statute whatsoever?" The department had
indicated it may consider a statute that allows
electronic filing, acknowledgment, and confirmation of a
properly executed relinquishment.
SHOULD THE RELINQUISHMENT BE DEEMED FILED AND FINAL 30
DAYS AFTER IT IS RECEIVED BY THE DEPARTMENT?
This option would give the department ample opportunity
to perform its review and provide the stamp of approval
AB 2674 (Leno)
Page 6
or express concern about the prospective adoptive
parents or about the validity of a relinquishment. It
would give both parties (birth and adoptive parents),
the licensed adoption agency and the department some
finality in the process without creating an unrealistic
deadline. All interested parties may not get the
shortened time period they want, but the setting of a
deadline provides a solid rule that everybody, including
the department, can abide by.
Support: San Francisco Jewish Family and Children's
Services; Academy of California Adoption Lawyers;
American Family Rights Association; California
Alliance of Child and Family Services; Families
Supporting Adoption; Family Law Section of the
State Bar of California; California Association of
Adoption Agencies
Opposition: None Known
HISTORY
Source: Jewish Family Services
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Asm Jud. (Ayes 10, Noes 0)
Asm. Floor (Ayes 80, Noes 0) (Consent)
**************