BILL ANALYSIS
SB 218
Page 1
SENATE THIRD READING
SB 218 (Scott)
As Amended September 2, 2005
Majority vote
SENATE VOTE :40-0
JUDICIARY 9-0 APPROPRIATIONS 16-0
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|Ayes:|Jones, Harman, Goldberg, |Ayes:|Chu, Sharon Runner, Bass, |
| |Haynes, Laird, Leslie, | |Berg, Calderon, Emmerson, |
| |Levine, Lieber, Montanez | |Mullin, Haynes, Karnette, |
| | | |Klehs, Leno, Nakanishi, |
| | | |Nation, Saldana, Walters, |
| | | |Yee |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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; c)
requesting de facto parent status; d) signing an adoptive
placement agreement; and, e) 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
or qualified prospective adoptive parent may petition the
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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 (JC) to prepare forms to
facilitate the filings of petitions described above.
7)Double-joint the bill with AB 519, AB 1412, and AB 1338 to
avoid chaptering out issues.
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 (DSS) or a licensed adoption agency for
adoptive placement.
2)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.
3)Allows a person to be declared a de facto parent for juvenile
court proceedings if, among other things: a) the child is
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"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 : According to the Assembly Appropriations
analysis:
1)Minor absorbable costs to JC to create petition forms.
2)Additional hearing workload on courts is unknown, though
likely absorbable, as adoption disruption is an infrequent
event, with very few disruptions occurring with young
children, who are the majority of children adopted statewide.
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. This bill would
provide that a court may designate a dependent child's caretaker
as a prospective adoptive parent if specified conditions are
met. This 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, DSS or the licensed
adoption agency may remove the child immediately and then
proceed with the notice and hearing procedure.
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.
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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
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.
This 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. 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.
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.
The California State Association of Counties, County Welfare
Directors Association of California and Service Employees
International Union oppose this bill unless amendments taken in
the Senate Judiciary Committee that require notice, and an
opportunity for a hearing to caregivers who qualify as
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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, this 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0013066