BILL ANALYSIS
SB 218
Page 1
Date of Hearing: June 7, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 218 (Scott) - As Amended: June 2, 2005
SENATE VOTE : 40-0
SUBJECT: Post-Termination of Parental Rights: Removal from
Caretaker
KEY ISSUES:
1)AFTER PARENTAL RIGHTS HAVE BEEN TERMINATED, SHOULD a CARETAKER
WHO HAS BEEN DESIGNATED AS THE PROSPECTIVE ADOPTIVE PARENT OF
A CHILD BE PERMITTED TO HAVE A HEARING BEFORE THE CHILD CAN BE
REMOVED FROM HIS OR HER HOME?
2)SHOULD THE DEPARTMENT OF SOCIAL SERVICES OR THE LICENSED
ADOPTION AGENCY BE PERMITTED TO REMOVE THE CHILD BEFORE NOTICE
AND A HEARING IN A CASE OF RISK OF HARM TO THE CHILD?
SYNOPSIS
The bill, sponsored by the National Association for Counsel of
Children - Los Angeles, would provide 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. This bill would
provide 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
the prospective adoptive parent, or who qualifies as a
prospective adoptive parent, only after notice is provided and,
if a noticed person requests, a hearing is held. At the
hearing, the child may be removed from that caretaker's home if
the court finds that removal is in the best interest of the
child. The bill would provide that the notice and 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 (DSS) or the licensed adoption agency may remove
the child immediately and then proceed with the notice and, if
requested, hearing.
The author argues that this bill is intended to limit the
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removal of a dependent child from his or her caretaker's home in
specified situations, in order to "protect the stability and
vested interests of vulnerable children." Supporters of the
bill, including children's organizations, the Family Law Section
of the State Bar and the Academy of California Adoption Lawyers,
argue that it will ensure that children are not removed from
prospective adoptive parents unless the move is truly in the
child's best interest.
The California State Association of Counties, County Welfare
Directors Association of California and Service Employees
International Union oppose the bill unless it is limited to
provide notice and an opportunity for a hearing only to those
parents who have already been formally designated as prospective
adoptive parents. The California Association of Adoption
Agencies opposes the bill outright, arguing that "the final
decision as to the best family for a particular child must
remain with the licensed public adoption agencies and their
professional social work staff."
SUMMARY : Absence the risk of harm to a child, requires notice
and, if requested, a hearing before the child can be removed
from the home of a prospective adoptive parent. Specifically,
this bill :
1)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 current caretaker (a) with
whom the dependent child has lived for at least six months;
(b) who has expressed a commitment to adopt the child; and (c)
who has taken at least one step to facilitate the adoption
process. Steps to facilitate adoption include, but are not
limited to: (a) applying for or cooperating with an adoption
homestudy; (b) being designated as the adoptive parent; (d)
requesting de facto parent status; (e) signing an adoptive
placement agreement; and (f) attending required classes.
2)Establishes for the period between termination of parental
rights and the granting of a petition for adoption, notice
and, if requested, a hearing, before removal of a dependent
child from the home of a caretaker who either is designated as
prospective adoptive parent or qualifies as a prospective
adoptive parent.
3)Provides that the child, child's attorney, or the designated
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or qualified 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 would determine whether it would be 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, or longer if the
court for good cause extends the filing period, the child may
be removed.
4)Provides that no notice would be required prior to removal of
the child if there is a risk of physical or emotional harm to
the child if the child continues to reside with the caretaker.
In this situation, notice and, if requested, a hearing would
occur after removal of the child.
5)Provides that a court designation as a prospective adoptive
parent does not make the caretaker a party to the dependency
proceeding nor does it confer standing on the caretaker to
object to any other action of the department or the licensed
adoption agency, unless the caretaker has been declared a de
facto parent.
6)Requires the Judicial Council to prepare forms to facilitate
the filings of petitions described above.
EXISTING LAW :
1)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 State Department
of Social Services or a licensed adoption agency for adoptive
placement. (Welfare and Institutions Code Section 366.26.
All references are to the Welfare and Institutions Code unless
otherwise indicated.)
2)Makes the Department of Social Services 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. (Section 366.26(j).)
3)Allows a person to be declared a de facto parent for juvenile
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court proceedings if, among other things, (a) the child is
"psychologically bonded" to the adult; and (b) the adult has
assumed the role of a parent on a day-to-day basis for a
substantial period of time. De facto parent status is
granted, in part, to permit "an adult to protect his or her
potential custody interests in a dependent child where a
future proceeding may result in an order permanently
foreclosing any future contact between the child and the
adult." ( See, e.g. , In re Brittany K. (2005) 127 Cal.App.4th
1497.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This bill, sponsored by the National Association for
Counsel of Children - Los Angeles, would provide 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 hearing is held. The court may then remove
the child from that caretaker's home if the court finds that
removal is in the best interest of the child. The bill would
provide that a court may designate a dependent child's caretaker
as a prospective adoptive parent if specified conditions are
met. The bill would provide that the above notice and 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 (DSS) or the licensed adoption agency may remove
the child immediately and then proceed with the notice and
hearing procedure.
Welfare and Institutions Code Section 366.26 authorizes the
court to terminate the parental rights of the parent or parents
of a child who has been adjudged a dependent of the court and to
determine the proper permanent placement for the child. Upon
making a finding that adoption is the appropriate placement goal
for the child, the court may order that efforts be made to
locate an appropriate adoptive family for the child within a
period not to exceed 180 days. A petition for adoption may not
be granted, however, until the appellate rights of the natural
parents have been exhausted. During this time period, between
the termination of parental rights hearing and the granting of a
petition for adoption, DSS or the licensed adoption agency is
responsible for the custody and supervision of the child and is
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entitled to the exclusive care and control of the child at all
times.
According to the author, the "exclusive care and control of the
child" provision under Section 366.26(j) has been interpreted by
appellate courts to give the DSS or the local agency "nearly
complete, unchecked authority to decide who adopts the child."
As a result, the 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. The author argues that 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 without the safeguard of the court reviewing the decision.
This is contrary to "the collaborative decision-making process
that occurs earlier in dependency proceedings," where the best
interest of the child is protected at all times. This bill is
intended to limit the removal of a dependent child from his or
her caretaker's home after parental rights are terminated, if
the caretaker is a designated or qualifies as a prospective
adoptive parent, as defined, in order to "protect the stability
and best interests of vulnerable children."
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
subject to review by the dependency court.
There may be a number of reasons why the department or the
agency may wish to remove the child from the caretaker's home
and place him or her in another home, such as the home of a
relative wishing to adopt the child, or the home of another set
of prospective adoptive parents who appear to be more suitable
for the adoption. This bill would not affect the current
provision that gives the department or agency "exclusive care
and control" authority over the child at this juncture.
However, this bill recognizes that there could be reasons why a
child should not be removed from a caretaker's home, and those
reasons could amount to removal not being in the best interest
of the child. Therefore, rather than have the child removed and
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placed elsewhere first, pending a review of the department's
decision which could only be challenged using an abuse of
discretion standard, this bill would establish a notice and
hearing procedure prior to removal.
This bill would require the department or agency to notify the
court, the designated or qualified prospective adoptive parent,
the child's attorney and the child (if the child is 10 years or
older) when the department or agency proposes to remove the
child from the caretaker's home. Notice must be given as soon
as possible after a decision to change the child's placement is
made, in the same manner that all notices are given in
dependency proceedings.
The bill would then permit a child, child's attorney, or
caretaker who is a designated prospective parent, to file a
petition with the court objecting to the proposed removal of the
child from the caretaker's home, or the court may on its own
motion set a hearing. A caretaker who qualifies as a
prospective adoptive parent may also file a petition to be
declared as a prospective adoptive parent, at the same time that
he or she challenges the proposed removal. The petition(s) must
be filed within five court days or seven calendar days,
whichever is longer, of the date of notification of the proposed
removal. The noticed hearing must be held as soon as possible
and not later than five court days after the petition is filed,
unless the court for good cause is unable to set the hearing
within those five days.
This standing to petition the court directly to object to a
proposed removal would be a major victory for caretakers who
have committed to adopting a child and who have felt their world
turned upside down when the child they have taken care of for an
extended period is suddenly removed from their care. In an
effort to limit workload and permitted challenges, this bill
confers this standing to object to removal of a child in a very
limited class of caretakers.
At the hearing, the court must determine if removal of the child
from the caretaker's home is in the child's best interest. This
is the standard used in most determinations that do not involve
risk of harm to the child. This language places the burden on
the department or agency to justify their decision to remove the
child from the caretaker's home. This, according to the
proponents of the bill, builds in some accountability on the
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part of the department or agency for the decisions that they
make, and that families who have bonded around a child will now
have an opportunity to challenge what they may view as an
arbitrary and capricious decision.
In order to ensure the safety of children, this bill would
expressly provide that no prior notice would be required when
the department or licensed adoption agency determines that the
child must be removed from the caretaker's home immediately
because of risk of physical or emotional harm to the child.
This provision addresses situations where, for example, the
caretaker's other children are being removed from that home due
to allegations of sexual abuse.
Amendments Requested by the California State Association of
Counties, County Welfare Directors Association of California
(CWDA) and Service Employees International Union (SEIU) . The
California State Association of Counties, CWDA and SEIU oppose
the bill unless amendments taken in the Senate Judiciary
Committee that require notice, and an opportunity for a hearing
to caregivers who qualify as prospective adoptive parents are
removed. They argue that this provision raises both substantial
fiscal concerns for the counties and workload issues for local
child welfare agencies. They request that, contrary to the
action of the Senate Judiciary Committee, the bill be limited to
provide notice and an opportunity for a hearing to only those
parents who have already been designated as prospective adoptive
parents.
The author, however, counters, that requirement to notify
caregivers who qualify, but are not yet designated as
prospective adoptive parents, of the intent to remove a child is
not unduly burdensome. CWDA admits that children are rarely
removed from caregivers who wish to adopt them after parental
rights are terminated, so there are not many caregivers who are
affected, and fewer still who qualify as prospective adoptive
parents.
ARGUMENTS IN SUPPORT : Supporters of the bill, including
children's organizations, the Family Law Section of the State
Bar and the Academy of California Adoption Lawyers argue that it
will provide greater stability for children awaiting adoption by
preventing them from being moved needlessly. Moreover, the bill
will ensure that children are not removed from prospective
adoptive parents unless the move is truly in the children's best
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interest. Supporters argue that "the determination concerning a
child's placement in the best possible adoptive home may be the
single most important determination made for and about the
child. That determination should be made with adequate judicial
oversight and governed by the child's best interest."
ARGUMENTS IN OPPOSITION : The California Association of Adoption
Agencies opposes the bill outright, arguing that "the final
decision as to the best family for a particular child must
remain with the licensed public adoption agencies and their
professional social work staff."
Pending 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.
AB 1638 (Nava) seeks to speed up the adoption process for
children in foster care who have had the rights of their natural
parents terminated and who have lived with a foster parent who
wishes to adopt the child for more than a year. AB 1638 passed
this Committee, but was held in the Assembly Appropriations
Committee.
Prior Legislation : In 2003, SB 166 (Scott), which contained
similar provisions to this bill, was withdrawn from the Senate
Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers
Children's Law Center of Los Angeles
Family Law Section of the State Bar
Junior League of California
National Association of Counsel for Children - Los Angeles
Affiliate (sponsor)
National Center for Youth Law
Opposition
California Association of Adoption Agencies
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California State Association of Counties (unless amended)
County Welfare Directors Association of California (unless
amended)
Service Employees International Union (unless amended)
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334