BILL ANALYSIS
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THIRD READING
Bill No: SB 218
Author: Scott (D)
Amended: 4/21/05
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 4/12/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Figueroa, Kuehl
NO VOTE RECORDED: Escutia
SENATE APPROPRIATIONS COMMITTEE : 9-0, 5/16/05
AYES: Migden, Aanestad, Alquist, Ashburn, Bowen, Dutton,
Florez, Murray, Poochigian
NO VOTE RECORDED: Battin, Escutia, Ortiz, Speier
SUBJECT : Post-termination of parental rights: removal
from caretaker
SOURCE : Los Angeles Affiliate of the National
Association of Counsel
for Children
DIGEST : This bill provides that after termination of
parental rights and before a petition for adoption is
granted by the court, a child may be removed from the home
of a caretaker who has been designated as a prospective
adoptive parent only after notice is provided and, if a
noticed person objects, a noticed hearing is held. The
child may be removed from that caretaker's home if the
court finds that removal is in the best interest of the
child. This bill provides that the above notice and
CONTINUED
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noticed hearing procedure does not apply if there is a risk
of physical or emotional harm to the child. In that event,
the Department of Social Services or the licensed adoption
agency may remove the child immediately and then proceed
with the noticed hearing procedure. This bill provides
that a court may designate a dependent child's caretaker as
a prospective adoptive parent if specified conditions are
met and the caretaker has taken steps towards the goal of
adopting the child.
ANALYSIS : Existing law provides that if the court
declares a child free from the custody and control of both
parents or one parent if the other parent does not have
custody and control, the court shall at the same time order
the child referred to the Department of Social Services
(DSS) or a licensed adoption agency for adoptive placement.
Existing law makes DSS or a licensed adoption agency
responsible for the custody and supervision of the child
and thus entitles them to the exclusive care and control of
the child at all times until a petition for adoption is
granted.
This bill, for the period between termination of parental
rights and the granting of a petition for adoption,
establishes a procedure for the removal of a dependent
child from the home of a caretaker who is a designated
prospective adoptive parent. It requires DSS or local
agency to provide notice prior to removal of the child.
This bill provides that the child, child's attorney, or the
designated prospective adoptive parent may petition the
court for a hearing, or the court on its own motion may set
a hearing, on the proposed removal of the child. At the
hearing, the court will determine whether it is in the best
interest of the child to remove that child from the
caretaker's home. If no objection is filed or hearing set
within five court days or seven calendar days after notice
of the proposed removal, whichever is longer, the child may
be removed. The court may, for good cause, extend the
filing period.
This bill, however, provides that no notice will be
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required prior to removal of the child from the home of a
caretaker, if there is a risk of physical or emotional harm
to the child if the child continues to reside with the
caretaker. A hearing will then be held five court days or
seven calendar days pursuant to the procedure established
by the bill.
Existing law does not provide for a caretaker of a
dependent child to petition the court at any dependency
proceeding after termination of parental rights for a
designation as a prospective adoptive parent. Existing law
does not confer on a dependent child's caretaker standing
to petition the court for a hearing if the caretaker
objects to the removal of a dependent child from the
caretaker's home.
This bill permits the court, at the hearing to terminate
parental rights to a dependent child or at anytime
thereafter, to designate as a prospective adoptive parent a
caretaker with whom the dependent child has lived for at
least six months, who has expressed a commitment to adopt
the child, and who has taken at least one step to
facilitate the adoption process.
This bill provides several examples of "steps" that a
caretaker may take to satisfy the third requirement for
designation as a prospective adoptive parent.
This bill confers on a caretaker who is a designated
prospective adoptive parent standing to petition the court
for a hearing on whether it is in the best interest of a
child to remove that child from the caretaker's home after
termination of parental rights and before a petition for
adoption is granted.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07 2007-08 Fund
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DSS Probably not substantial
costsGeneral/
Federal
Child welfare agencies Probably under $150
annually General/
Federal/
Local
Courts Probably not substantial
costsGeneral
SUPPORT : (Verified 5/17/05)
Los Angeles Affiliate of the National Association of
Counsel for Children (source)
Academy of California Adoption Lawyers
Children's Law Center of Los Angeles
Family Law Section of the State Bar of California
National Center for Youth Law
State Public Affairs Committee of the Junior Leagues of
California
OPPOSITION : (Verified 5/17/05)
California Association of Adoption Agencies
California State Association of Counties
California Welfare Directors Association
Service Employees International Union
ARGUMENTS IN SUPPORT : The author and the sponsor of the
bill, the Los Angeles Affiliate of the National Association
for Counsel of Children, believe that existing law does not
protect the stability of children post-termination of
parental rights, because the court's oversight function
essentially evaporates between the order to place the child
for adoption and the order granting the petition for
adoption. Current law gives the DSS and the licensed
adoption agency unfettered authority during this time
period to remove a child from a caretaker's home, they
state, without the safeguard of the court reviewing the
decision. This is contrary to "the collaborative
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decision-making process that occurs earlier in dependency
proceedings," they assert, where the best interest of the
child is protected at all times.
The sponsor contends that children who have lived for long
periods of time with their caretakers could be
psychologically harmed by being moved to a different home
pending a petition for adoption. Their proposed solution
is to require that when the DSS or the licensed adoption
agency recommends that a child be removed from a caretaker
who wishes to adopt the child, only to be adopted by a
different person, that recommendation should be reviewed by
the dependency court.
ARGUMENTS IN OPPOSITION : The California State
Association of Counties (CSAC) writes:
"Unfortunately, recent amendments taken in the Senate
Judiciary Committee raise substantial fiscal concerns
for counties. As amended in committee, the bill now
allows a caretaker who met the criteria as of the date
that notice was given of a planned placement change for
the child to both ask for a hearing and petition to be
named the prospective adoptive parent at the same time.
The noticing provisions also were amended to require
the adoption agency to give notice of a planned move
not only to a caretaker who has already been designated
a prospective adoptive parent, but also a caretaker who
might meet the criteria as of the date of notice.
"In effect, this provision will require automatic
notice to all caretakers when a placement change is
planned, just in case the caretaker meets the criteria
set forth in the bill. Failure to provide notice to a
caretaker who met the criteria - but had not yet asked
be named a prospective adoptive parent - could result
in the reversal of placement decisions made by an
adoption agency and/or findings made by a court.
"Counties are concerned about the new costs associated
with this noticing requirement, including costs for the
notice process itself and costs due to potential delays
in the adoptions process. County adoptions workers work
hard to follow all state and federal laws and rules of
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the court, but their already high caseloads make new
requirements such as this very difficult to implement.
The broad nature of this new rule would make delays
much more likely, exacerbating the already long
adoption process and delaying permanency for children
in our foster care system.
"In order to address our fiscal concerns, CSAC is
asking for the same amendments that were submitted by
the County Welfare Directors Association (CWDA): that
the bill be amended to require notice only to
caretakers who have already been named a prospective
adoptive parent as of the notice date for the planned
placement move, and to provide for hearing requests
only by caretakers who already have been named
prospective adoptive parents.
"Even with these amendments, the bill still would
provide far greater caretaker involvement in adoptive
placement decisions than under current statute or
practice. Further, it is not unreasonable to expect
that a caretaker who wants to become the permanent
adoptive parent for a child should have already applied
for this designation at an appropriate time in the
process."
RJG:mel 5/18/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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