BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2488 A
Assembly Member Leno B
As Amended April 19, 2006
Hearing Date: June 13, 2006 2
Family Code 4
BCP:rm 8
8
SUBJECT
Adoption: Sibling Contact
DESCRIPTION
This bill would lower the age of consent to disclosure of
contact information between adoptees and their siblings
from 21 to 18. For those children under 18, this bill
would allow them to consent to disclosure of their
information provided that their adoptive parent, legal
parent or guardian consents. Additionally, this bill would
authorize a court to appoint a confidential intermediary to
obtain the consent of an adoptee or their sibling who has
not already consented to disclosure.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
The bond between siblings is one of the strongest and
longest-lasting that an individual may have. A 1992 report
by the National Adoption Information Clearinghouse stated
that "[w]hile the [sibling] bonds may wax and wane, a
person's lifetime quest for personal identity is undeniably
interwoven with his or her siblings." Recognizing the
importance of these bonds, the Family Code allows adopted
children and their siblings to consent to disclosure of
their contact information to a biological sibling. This
disclosure is only allowed when both siblings have
consented to the disclosure of their contact information.
(more)
AB 2488 (Leno)
Page 2
Absent that consent, the Department of Social Services
(DSS) or an adoption agency may not release the contact
information of an adopted sibling for purposes of
establishing a sibling relationship.
AB 2488 would further promote sibling relationships by
facilitating the disclosure of sibling contact information
in the three enumerated ways.
CHANGES TO EXISTING LAW
1. Existing law provides that adoption records are
confidential and shall not be disclosed by the Department
of Social Services (DSS) or an adoption agency unless
otherwise authorized by law. [Fam. Code 9201; 22 CCR
35049.]
Existing law requires DSS or an adoption agency to
release the names and addresses of siblings to one
another if both are 21 years of age and have filed a
written request for contact and a waiver of their
disclosure rights. DSS or an adoption agency may not
solicit the execution of a waiver by siblings who have
not already done so. [Fam. Code 9205.]
This bill would lower the age of consent to waiver from
21 to 18. This bill would additionally allow an adoptee
or sibling of adoptee under the age of 18 to consent to
release of their contact information provided that their
adoptive or legal parent or guardian consents. The
dependency court may provide that consent for siblings
under their jurisdiction where when no legal parent or
guardian is available to provide consent.
This bill would allow a court to appoint a confidential
intermediary to attempt to obtain the consent of the
adoptee, sibling, or adoptive birth parent required to
make the disclosure, provided that contact would not be
detrimental to the adoptee or sibling with whom contact
is sought. If consent is sought from an individual under
age 18, the confidential intermediary must seek the
consent of the child's legal parent or the dependency
court, when no legal parent exists, prior to contacting
the child.
AB 2488 (Leno)
Page 3
This bill would require the confidential intermediary to
be either the department or adoption agency that
conducted the adoptee's adoption, unless that agency is
unable to serve as the intermediary due to economic
hardship, in which case the agency shall provide all
records to the court and the court shall appoint an
alternate confidential intermediary. This bill would
require that intermediary to make all reasonable efforts
to locate and obtain the consent of the adoptee, sibling,
or adoptive birth parent.
2. Existing law allows DSS to adopt regulations to
require a biological sibling, who remained in the custody
and control of his or her birth parents until age 18, to
obtain the consent of the shared birth parents prior to
the release of his or her contact information. That
requirement appears in Part (F) of DSS' Form AD-904A
(Waiver of Rights to Confidentiality for Siblings). [Fam.
Code 9205(d); 22 CCR 35063 (a)(4).]
This bill would delete that provision.
3. Existing law allowing release to siblings applies to
adoptees and their biological siblings.
This bill would define sibling to include half-siblings
and step-siblings.
COMMENT
1. Stated need for the bill
According to the author, "California law should be
amended to remove overly restrictive barriers and make it
easier for siblings to find each other after one or more
of them have been adopted through the foster care
system." Statistics provided by the author report that
over two-thirds of the California children in foster care
"had at least one sibling in out-of-home care. Of these
youth, an astounding 58% were separated from one or more
of their sisters or brothers."
While the Legislature has previously supported
post-adoptive sibling contact, the author states that
"current law makes it difficult, and in some cases
AB 2488 (Leno)
Page 4
impossible, for siblings to find each other when one or
more of them has been adopted." Accordingly, AB 2488
would facilitate sibling contact by lowering the age of
consent from 21 to 18, allow the release of contact
information for a sibling under age 18, with their legal
parent or guardian's consent, and allow an adoptee or
sibling for whom no waiver is on file to petition the
court to appoint a confidential intermediary to obtain
that waiver.
2. Use of a confidential intermediary to obtain the
consent from a non-consenting sibling
Existing law requires both siblings to execute a waiver
consenting to disclosure of their contact information
prior to its release. AB 2488 would allow a sibling to
request court appointment of a confidential intermediary
who would seek a waiver from a sibling who has not
already consented to disclosure. That intermediary would
have access to the adoptee's records in order to locate
the sibling and obtain their consent. The end result of
this process would be either the execution of waiver by
the sibling, or their decision not to consent.
A. Burden on the department and private adoption
agencies
AB 2488 would require the confidential intermediary to
locate the adoptee, sibling or adoptive or birth
parent, whose consent is requested. Due to the
emotional nature of adoption situations, some of those
parents may not wish to be contacted by the
intermediary. (See Comment 3). The author's proposed
amendments attempt to address initial concerns about
the potential burden on the appointed confidential
intermediary.
In cases were the adoption agency is unable to serve
as the intermediary due to economic hardship, the
proposed amendments would require the court to appoint
an alternate intermediary. The court would have
discretion over what individual or entity to appoint
as that intermediary.
In recognition that the search for an individual,
AB 2488 (Leno)
Page 5
especially in international adoptions, could consume a
large amount of department or agency resources, the
author's proposed amendments would clarify that an
intermediary is to "use all reasonable efforts to
locate and attempt to obtain the consent" of that
individual. This accommodation ensures that the
intermediary is not absolutely required to locate that
individual in circumstances when reasonable efforts
fail. The sponsor's proposed amendment intends only
to define the efforts to be made in locating the
individual, and is not intended to modify the efforts
required to obtain the consent of that individual.
Especially in cases where the legal parent does not
want to be disturbed, once the individual is located,
the intermediary should cease any "attempt" to obtain
their consent after the denial of that consent. The
proposed ambiguous language arguably requires "all
reasonable efforts" to be made to obtain the consent
of the individual; such efforts could unduly invade
the privacy of an individual who does not wish to
consent.
SHOULD NOT THE BILL BE AMENDED TO PREVENT THE UNDUE
INVASION OF PRIVACY BY SPECIFYING THAT ONCE AN
INDIVIDUAL REFUSES TO GIVE THEIR CONSENT, THE
INTERMEDIARY MUST CEASE ALL ATTEMPTS TO OBTAIN THAT
CONSENT?
The Academy of California Adoption Lawyers (ACAL)
voices concern over the potential court appointment of
an unwilling private adoption agency as the
confidential intermediary. That agency, whose
appointment does not constitute an economic hardship,
would be required to use reasonable efforts to locate
the individual. As an example of potential agency
burden, ACAL states that "one agency . . . has placed
over 3500 children, each of whom could have one or
more siblings to locate . . ." Of those 3,500
children, ACAL states that 1,250 were adopted
internationally, thus further frustrating efforts to
locate parents or siblings. Accordingly, ACAL
requests amendments to:
1) Require the court to appoint an alternate
confidential intermediary if the adoption agency
AB 2488 (Leno)
Page 6
is unwilling to serve as that intermediary.
2) Limit the appointment of a confidential
intermediary to children who were not adopted
internationally.
Alternatively, DSS does not appear to be concerned
about any added workload as a result of this bill.
The Assembly Appropriations Committee states that "the
state [currently] receives only 2 or 3 inquiries a
month from adoptees looking for biological siblings.
This legislation should not increase that number
considerably. Therefore any costs associated with an
increased workload should be absorbable."
B. Confidentiality
Any confidential intermediary who is appointed by the
court would have access to all records of the adopted
sibling for purposes of locating the adoptee or
sibling. Those records would necessarily contain
personal, confidential information which the adopted
child likely would not want to become public.
The potential confidential intermediaries are the
adoption agency that conducted the adoption, DSS, or
an alternate intermediary selected by the court. Any
appointed agency would be familiar with the adoptee's
case and already possess much of that confidential
information. Additionally, DSS, as the department
responsible for licensing adoption agencies, would be
the logical state entity to locate siblings lost
through the adoption process. While nothing in this
bill expressly states that the confidential
intermediary is required to maintain the
confidentiality of information found in the adoptee's
file, internal department or agency regulations,
existing law, and the court order would prevent the
public disclosure of that information. While any
alternative intermediary appointed by the court may
not be subject to such internal regulations, existing
law and the court order should limit their disclosure
of any confidential information.
Another related issue is the ability for a sibling to
AB 2488 (Leno)
Page 7
grant the confidential intermediary access to their
adopted sibling's records. Presumably, these records
would ordinarily be controlled by the adoptee
themselves, subject to disclosure only when absolutely
necessary for medical or other emergency. [Fam. Code
9203.] As discussed above, the appointed
intermediary would not be authorized to disclose any
of the contained information, without the adoptee's
authorization.
Accordingly, the sponsor should consider adding
provisions to further ensure that any information
contained in a confidential adoption record would be
used only for authorized purposes and not be subject
to disclosure by the intermediary.
SHOULD NOT THE BILL BE AMENDED TO STATE THAT ANY
INFORMATION FOUND IN A CONFIDENTIAL ADOPTION RECORD IS
TO BE USED FOR AUTHORIZED PURPOSES ONLY AND NOT
SUBJECT TO UNAUTHORIZED DISCLOSURE BY THE
INTERMEDIARY?
C. Court discretion in appointment of intermediary
Under this procedure, either the adoptee or sibling
seeking contact may seek court appointment of a
confidential intermediary. AB 2488 would allow the
court to deny this request if the appointment would be
detrimental to the adoptee or sibling with whom
contact is sought. Unfortunately, this standard is
without meaning. In these situations, an individual
would seek appointment of a confidential intermediary
because they do not know the location of their
sibling. Like that individual, the court would also
lack information about the sibling, especially
concerning whether any contact would be harmful.
Absent extraordinary circumstances where the court
actually has evidence about the potential detriment to
the sibling with whom contact is sought, a court would
lack information upon which to deny the petition.
Alternatively, AB 2488 would require a court to
appoint "the department or adoption agency that
conducted the adoptee's adoption" as the confidential
intermediary, unless that appointment would result in
AB 2488 (Leno)
Page 8
economic hardship to the agency. In cases of economic
hardship to the adoption agency, the court shall
appoint an alternate confidential intermediary. That
alternate intermediary would be an individual or
entity selected at the court's discretion.
Accordingly, the court would have discretion to
appoint an appropriate individual or entity as the
intermediary.
D. Existing language preventing department or agency
solicitation of waiver
For those siblings who have not executed a waiver, the
Family Code prevents the department or an adoption
agency from soliciting the execution of that waiver.
[Fam. Code 9205 (e).]
Upon request, AB 2488 would allow court appointment of
either the department or adoption agency as a
confidential intermediary. DSS or the adoption
agency, if appointed, would be required to use
reasonable efforts to locate the sibling to request
execution of the waiver. Allowing these entities to
seek the waiver would not be problematic for the
reasons described below.
First, both entities would be acting in their capacity
as the court intermediary and not as the department or
agency that conducted the adoption. Second, the
department or agency would only be soliciting the
execution of a waiver upon court approval as the
confidential intermediary. Both entities would still
be prohibited from soliciting the consent of a sibling
without court involvement.
While the department or adoption agency would be
familiar with the adoption process, a sibling faced
with a request to consent may not understand that they
have the option not to consent to disclosure of their
contact information. These individuals likely would
have extensive interactions with the department or
agency and may fail to recognize that this is an
optional request and not a demand of the court or the
law. This issue should be addressed by requiring the
department or agency to notify the sibling that their
AB 2488 (Leno)
Page 9
consent is optional and does not affect the status of
the adoption.
SHOULD THE DEPARTMENT OR AGENCY, AT THE TIME OF THEIR
REQUEST FOR CONSENT, ALSO NOTIFY THE SIBLING THAT
THEIR CONSENT IS OPTIONAL, IS NOT REQUIRED BY LAW, AND
DOES NOT AFFECT THE STATUS OF THE ADOPTION?
3. Procedures for consent of children under age 18
Under existing law, a sibling must wait until age 21 to
consent to the disclosure of their contact information to
a sibling. AB 2488 would allow all siblings, regardless
of age, to consent to the release of their personal
information. Siblings under the age of 18 must seek the
consent of their legal parents or guardians prior to the
release of their personal information. This ensures that
the parents agree that it is appropriate for the
sibling's personal information to be released to their
sibling. While sibling relationships should be promoted,
this ensures that parents are able to protect their child
as necessary. Siblings subject to the jurisdiction of the
dependency court who have no legal parent or guardian
able to provide consent may seek consent from that court
for disclosure of their contact information.
For siblings under the age of 18 who have not consented,
a confidential intermediary seeking their consent must
first contact and obtain the consent of the legal parents
before even contacting the child. Due to the emotional
nature of adoption proceedings, some of these parents may
not wish to be disturbed by the intermediary.
Presumably, the legal parent need only refuse to consent
once, leaving them free from disturbance after that time.
As stated above, the intermediary may not contact their
adopted child without that consent.
For those children who are under the jurisdiction of the
dependency court, and have no legal parent or guardian
available to provide consent, a confidential intermediary
must first seek consent of the court. Requiring this
consent ensures that the legal parent, guardian or court
is both aware of the sibling contact, and able to protect
the adopted child as necessary. For example, an adoptive
parent may not have told their five year old adopted
AB 2488 (Leno)
Page 10
child that they were adopted. Any request for consent
would first go to the adoptive parent, who could deny
their consent, and prevent the confidential intermediary
from contacting the adoptee. This proposed procedure
protects the child from the disclosure of their adopted
status before the parent believes they are ready for that
information.
4. Removal of biological parental consent requirement for
biological siblings who remain under custody and control
of birth parents until age 18
Current law allows DSS to enact regulations to require
the consent of an adoptee's birth parents when their
biological sibling remained in the custody and control of
those parents until age 18. That requirement appears in
Part (F) of the Waiver of Rights to Confidentiality for
Siblings Form (AD 904A). That requirement covers the
situation where one of the biological siblings is removed
from their parent's custody and placed with an adoptive
family. Essentially, current law allows birth parents to
block contact between their children and permanently
sever the sibling bond.
AB 2488 would remove this requirement, allowing siblings
age 18 and over to contact each other without consent of
the adoptee's birth parents. As discussed above, those
parents would be required to consent for any sibling,
under age 18, currently in their custody to contact their
adopted sibling.
While this change does substantively alter the control of
the birth parent over contact between their children, the
County Welfare Directors Association, supporter, states
that this and other changes made by AB 2488 would "assist
adopted youth and adults [to] find and contact siblings .
. . by removing barriers from current law that make it
difficult for adopted siblings to find one another."
This inability to locate a birth parent under current law
could keep biological siblings from contacting each
other, although that would partially be addressed by the
proposed appointment of a confidential intermediary in
those cases.
5. Definition of sibling
AB 2488 (Leno)
Page 11
Current law regarding the release of names and addresses
between adopted children and their siblings only applies
to biological siblings. AB 2488 would expand that
definition of sibling to include half and step-siblings.
Allowing these non-traditional siblings to maintain
contact with each other recognizes the different family
structures present today. As with biological siblings,
half and step-siblings would share a strong bond with one
another, which may help these siblings to deal with their
complicated family structures.
6. Author's amendments
The author proposes the following amendments to address
concerns about the potential burden on a confidential
intermediary, and to make technical, clarifying changes
regarding the role of the dependency court.
1) On page 3, line 33, after the period, insert:
If the court finds that the adoption agency that
conducted the adoptee's adoption is unable, due to
economic hardship, to serve as the intermediary then
the agency shall provide all records to the court and
the court shall appoint an alternate confidential
intermediary.
2) On page 3, line 36, after "shall" insert "make all
reasonable efforts to"
3) On page 3, line 27, after "the" insert
"dependency"
4) On page 4, line 5, after "the" insert "dependency"
Support: Children's Law Center of Los Angeles; County
Welfare Directors Association of California (CWDA);
National Center on Youth Law (NCYL); California
Association of Adoption Agencies (CAAA); California
Alliance of Child and Family Services; Inter-Agency
Council on Child Abuse and Neglect (ICAN); American
Federation of State, County, and Municipal Employees
AB 2488 (Leno)
Page 12
(AFSCME); Children's Defense Fund - California;
California Coalition for Youth (CCY); Los Angeles
Affiliate of the National Association of Counsel for
Children; Junior Leagues of California State Public
Affairs Committee (SPAC); City and County of San
Francisco; National Association of Social Workers,
California Chapter (NASW-CA); one individual
Opposition: None Known
HISTORY
Source: Children's Law Center of Los Angeles
Related Pending Legislation: SB 1758 (Figueroa), would
impose regulation and bonding
requirements on adoption
facilitators. (This bill is
currently in the Assembly.)
SB 1712 (Migden), would promote the
adoption of hard-to-place teens ages
11 to 18. (This bill is currently in
the Assembly.)
Prior Legislation: AB 2196 (Washington), Chapter 1072,
Statutes of 1997, requires a social worker to
include a discussion of sibling visitation and
contact in a child's case plan.
AB 1987 (Steinberg), Chapter 909, Statutes of
2000, requires social workers to establish and
maintain sibling relationships when children
are not placed together in foster care.
AB 705 (Steinberg), Chapter 747, Statutes of
2001, requires social workers to place siblings
together in foster care whenever practicable,
AB 2488 (Leno)
Page 13
including ongoing efforts to place siblings
together.
Prior Vote: Asm. Jud. (Ayes 9, Noes 0)
Asm. Floor (Ayes 76, Noes 0)
**************