BILL ANALYSIS
AB 1638
Page 1
Date of Hearing: April 12, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1638 (Nava) - As Amended: April 7, 2005
SUBJECT : ADOPTION OF DEPENDENT CHILDREN
KEY ISSUE : IN ORDER TO HELP EXPEDITE THE ADOPTION OF CHILDREN
IN FOSTER CARE WHO HAVE HAD THE RIGHTS OF THEIR NATURAL PARENTS
TERMINATED, SHOULD AN ADOPTION PETITION FILED BY A CHILD'S
LONG-TERM FOSTER PARENT AND NOT OPPOSED BY EITHER THE CHILD OR
THE COUNTY CHILD WELFARE DEPARTMENT BE GRANTED WITHIN 90 DAYS,
SUBJECT TO LIMITED EXCEPTIONS?
SYNOPSIS
This bill, sponsored by the Children's Advocacy Institute, seeks
to speed up the adoption of children in foster care who have had
the rights of their natural parents terminated. Under this
bill, if a foster parent who has had custody of a child for more
than a year, seeks to adopt that child and neither the child nor
the county child welfare department objects, the court must
grant the petition within 90 days of either the exhaustion of
the terminated parents' appellate rights or the statement of
adoption intent, whichever is later. The only exception is when
the department can show cause why the petition approval cannot
be granted within the required time frame. This bill would help
minimize the amount of time that such children are effectively
orphaned by the judicial system and help shorten the time before
they are adopted. This bill is support by the Family Law
Section of the State Bar. While not opposing the bill, the
County Welfare Directors Association of California requests that
the time period for the adoption to be finalized be extended
beyond the 90 days provided in the bill.
SUMMARY : Provides for quicker adoption for children in foster
care. Specifically, this bill requires that, if a foster
parent, who has custody of a child and has acted on a day-to-day
basis in the role of parent for that child for more than one
year, states an intent to adopt the child to the licensed
adoption agency, and such adoption is not opposed by the child
or the county child welfare department, the petition shall be
approved within 90 days of the exhaustion of the appellate
rights of the parents or within 90 days of the statement of
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adoption intent, whichever is later, unless the department can
show cause why the petition approval cannot be granted within
the required time frame.
EXISTING LAW :
1)Requires the court, upon filing of a petition for adoption of
a child who is a dependent of the juvenile court, to set an
adoption hearing. The court must proceed with the adoption
after the appellate rights of the natural parents have been
exhausted. (Welfare & Institutions Code Section 366.26(e).)
2)Requires that the Department of Social Services or a licensed
adoption agency to whom a child, whose parental rights have
been terminated, has been referred to be responsible for the
care and the custody of that child at all times until the
petition for adoption is granted. (Welfare & Institutions
Code Section 366.26(j).)
3)Allows the court to limit the assessment or home study that
must be done for a prospective adoptive parent if that
individual has been the child's foster parent for at least six
months. The limited assessment includes, among other things,
a criminal records check and a determination that the
prospective parent has sufficient financial stability to
support the child and has not abused or neglected the child.
(Family Code Section 8730.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This bill seeks to speed up the adoption of children
in foster care who have had the rights of their natural parents
terminated. According to the author:
Many foster families are caring for foster kids that they
seek to adopt. They are providing the day to day care for
these children and would like to become these children's
family. Despite previous legislative action easing the
administrative requirements to these adoptions, many are
being significantly delayed. For example, there is a case
in San Diego County where the foster parent has been
awaiting adoption finalization for four years since the
termination of the child's parental rights. There is
little excuse for allowing an adoption that is agreed on by
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all parties to languish for that long.
As further support, the author cites a study conducted by Los
Angeles County in 2002 that showed the average processing time
for adoptions was 45 months, just short of four years.
This bill seeks to remedy these problems by requiring that if a
foster parent seeks to adopt a child that he or she has had
custody of for over a year, and such adoption is not opposed by
the child or the child welfare department, the petition must be
approved within 90 days of the exhaustion of the appellate
rights of the parents whose rights have been terminated or
within 90 days of the statement of adoption intent, whichever is
later. If for some reason the child welfare department cannot
complete all the necessary reviews within 90 days, it can obtain
an extension by showing the court why the petition approval
cannot be granted within the required time frame.
The Children's Advocacy Institute, sponsor of the legislation,
argues in support of the bill:
Unfortunately, despite previous legislation easing the
administrative requirements for these adoptions, many
are significantly delayed.
Delays create uncertainty for the adoptive family and
the child and postpone permanence for the child.
During the wait, the foster parents and foster youth
are left in limbo. The resultant frustration can
negatively impact the child's emotional wellbeing and
can cause the adoption to be abandoned.
The Family Law Section of the State Bar also supports the bill,
contending that it will expedite adoption for foster children,
which is the best interests of children.
Amendments Requested by the Welfare Directors . The County
Welfare Directors Association of California (CWDA) does not
oppose the bill, but seeks amendments to increase the time
period allowed for the adoption to proceed. While acknowledging
that there is an expedited home study process for prospective
adoptive parents who are also foster parents to the child, CWDA
argues that "approval is not always completed by the time a
foster child is freed for adoption" and that the 90 day time
frame set forth in the bill is "an unrealistic time frame for
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the finalization of most adoptions."
CWDA, instead, seeks amendments to extend the time frame to 120
days after the home study has been completed and the child has
been placed with the foster parents in accordance with a signed
adoption placement agreement. Adding an additional month to the
time frame currently in the bill may be reasonable, depending on
how long the process actually takes. However, under CWDA's
requested amendments, the clock would not even begin until the
home study has been completed, something that is in the hands of
either the county child welfare department or the licensed
adoption agency.
In addition, CWDA would like the extended time frame to apply
only to foster parents who, in addition to acting as the child's
parents for more than a year, 1) presently express a firm
commitment to adopt; 2) have taken more than one step to move
the adoption process forward; and 3) are listed as the
appropriate persons to be considered as adoptive parents for the
child in the preliminary assessment prepared by the county child
welfare agency. If these proposed amendments help ensure that
the foster parent does indeed want the adoption to go forward,
they may be reasonable. However, if they allow for further
delays of the adoption based on factors solely within the
control of the child welfare agency or the licensed adoption
agency, they could permit unnecessary delays in the adoption of
children who are otherwise legal orphans.
The author also contends that the expedited home study permitted
for long-term foster parents significantly reduces the time
necessary to complete the adoption and, even if the adoption
cannot be completed within the 90 days, the county can get an
extension by showing why the petition cannot be granted in the
time period allowed.
Related Legislation : AB 519 (Leno) allows for reinstatement of
parental rights for a child who would otherwise be orphaned
after termination of parental rights if the court determines
that the child is no longer likely to be adopted and that
reinstatement of parental rights is in the child's best
interest. AB 519 passed this Committee on consent.
SB 218 (Scott) would allow a caretaker who has been designated
as a prospective adoptive parent and has lived with the child
for at least six months to have custody of a child whose natural
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parents have had their parental rights terminated.
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Advocacy Institute
Family Law Section of the State Bar of California
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334