BILL NUMBER: SB 302 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 20, 2005
INTRODUCED BY Senator Scott
FEBRUARY 16, 2005
An act to amend Sections 7612, 7630, 7660.5
7630, 8604, and 9003 of the Family Code, and to amend
Sections 294 and 305.6 of the Welfare and Institutions Code,
relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
SB 302, as amended, Scott. Adoption.
Existing law provides that a man is presumed to be the natural
father of a child if certain conditions are met. This presumption may
be rebutted by a judgment establishing paternity of the child by
another man. Existing law also authorizes a child, the child's
natural mother, or, with certain exceptions, a presumed father of the
child to bring an action to determine paternity, as specified.
Existing law provides that if a mother relinquishes for or
consents to, or proposes to relinquish for or consent to, the
adoption of a child who has a presumed father, the father must be
given notice of the adoption proceeding and a child may not be
adopted without his consent, except under specified circumstances.
However, a presumed father may waive his right to notice by
executing a specified form before certain persons, such as a notary
public.
Existing law establishes procedures for a peace officer to take a
minor who is in a hospital into temporary custody if the release of
the minor to a prospective adoptive parent poses an immediate danger
to the minor's health or safety.
Existing law also provides that, in a stepparent adoption, the
consent of either or both birth parents must be signed in the
presence of a county clerk, probation officer, qualified court
investigator, or county welfare department staff member of any county
of this state.
Existing law requires the social worker or probation officer to
give notice to specified persons of a hearing to terminate parental
rights or establish the legal guardianship of a dependent child.
This bill would provide that authorize,
in an adoption the presumption described above may
also be rebutted by clear and convincing evidence that another man is
the natural father. The bill would authorize a presumed father to
waive his right to notice of adoption proceedings by executing the
form described above before a representative of a licensed adoption
agency or a private child placement agency licensed by this state. In
a stepparent adoption, the bill would authorize
the consent of either or both birth parents to be signed in
the presence of a notary public.
The bill would additionally authorize an adoption agency to whom
the child has been or is proposed to be
relinquished to or a person who intends to adopt
the child prospective adoptive parent to bring an
action to determine paternity.
The bill would provide that the consent of a presumed father is
not required for the child's adoption unless he became a presumed
father before the mother's relinquishment or consent becomes
irrevocable or before the mother's parental rights have been
terminated.
The bill would also expand the list of specified persons whom the
social worker or probation officer must notify regarding a hearing to
terminate parental rights or establish a legal guardianship by
requiring that notice be given to unknown parents by publication, if
ordered by the court, as specified. By expanding the duties of social
workers and probation officers, the bill would impose a
state-mandated local program.
The bill would extensively revise the procedures required for a
peace officer to take a minor who is in a hospital into temporary
custody if the release of the minor to a prospective adoptive parent
poses immediate danger to the minor's health or safety.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7612 of the Family Code is amended to read:
7612. (a) Except as provided in Chapter 1 (commencing with
Section 7540) and Chapter 3 (commencing with Section 7570) of Part 2
or in Section 20102, a presumption under Section 7611 is a rebuttable
presumption affecting the burden of proof and may be rebutted in an
appropriate action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7611 which
conflict with each other, the presumption which on the facts is
founded on the weightier considerations of policy and logic controls.
(c) The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man, or, in the case
of an adoption, by clear and convincing evidence that another man is
the natural father.
SEC. 2.
SECTION 1. Section 7630 of the Family Code is amended
to read:
7630. (a) A child, the child's natural mother, a man presumed to
be the child's father under subdivision (a), (b), or (c) of Section
7611, an adoption agency to whom the child has been , or is
proposed to be, relinquished, or a person who intends to adopt the
child relinquished to or a prospective adoptive parent
, may bring an action as follows:
(1) At any time for the purpose of declaring the existence of the
father and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the father
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts. After the presumption
has been rebutted, paternity of the child by another man may be
determined in the same action, if he has been made a party.
(b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the father
and child relationship presumed under subdivision (d) or (f) of
Section 7611.
(c) An action to determine the existence of the father and child
relationship with respect to a child who has no presumed father under
Section 7611 or whose presumed father is deceased may be brought by
the child or personal representative of the child, the Department of
Child Support Services, the mother or the personal representative or
a parent of the mother if the mother has died or is a minor, a man
alleged or alleging himself to be the father, or the personal
representative or a parent of the alleged father if the alleged
father has died or is a minor.
(d) An action under subdivision (c) shall be consolidated with a
proceeding pursuant to Section 7662 if
whenever a proceeding has been filed under Chapter 5
(commencing with Section 7660). The parental rights of the alleged
natural father shall be determined as set forth in Section 7664. The
consolidated action shall be heard in the court in which the Section
7662 proceeding is filed, unless the court in which the action under
subdivision (c) is filed finds, by clear and convincing evidence,
that transferring the action to the other court poses a substantial
hardship to the petitioner. Mere inconvenience does not constitute a
sufficient basis for a finding of substantial hardship. If the court
determines there is a substantial hardship, the consolidated action
shall be heard in the court in which the paternity action is filed.
SEC. 3. Section 7660.5 of the Family Code is amended to read:
7660.5. Notwithstanding any other provision of law, if a presumed
father waives the right to notice pursuant to Section 7660 in
writing by executing a form developed by the department using
existing resources before a representative of a licensed adoption
agency or private child placement agency licensed by this state or
before a notary public or other person authorized to perform notarial
acts, no notice, relinquishment for, or consent to adoption of the
child shall be required from him for the adoption proceeding to
proceed. This shall be a voluntary and informed waiver without undue
influence. If the child is an Indian child as defined under the
Indian Child Welfare Act (ICWA), any waiver of consent by an Indian
presumed father shall be executed in accordance with the requirements
for voluntary adoptions set forth in Section 1913 of Title 25 of the
United States Code. The waiver shall not affect the rights of any
known federally recognized Indian tribe or tribes from which the
child or the presumed father may be descended to notification of, or
participation in, adoption proceedings as provided by the ICWA.
Notice that the waiver has been executed shall be given to any known
federally recognized Indian tribe or tribes from which the child or
the presumed father may be descended, as required by the ICWA.
SEC. 2. Section 8604 of the Family Code
is amended to read:
8604. (a) Except as provided in subdivision (b), a child having a
presumed father under Section 7611 may not be adopted without the
consent of the child's birth parents, if living. The consent of
a presumed father is not required for the child's adoption unless he
became a presumed father as described in Section 7611 before the
mother's relinquishment or consent becomes irrevocable or before the
mother's parental rights have been terminated.
(b) If one birth parent has been awarded custody by judicial
order, or has custody by agreement of both parents, and the other
birth parent for a period of one year willfully fails to communicate
with and to pay for the care, support, and education of the child
when able to do so, then the birth parent having sole custody may
consent to the adoption, but only after the birth parent not having
custody has been served with a copy of a citation in the manner
provided by law for the service of a summons in a civil action that
requires the birth parent not having custody to appear at the time
and place set for the appearance in court under Section 8718, 8823,
8913, or 9007.
(c) Failure of a birth parent to pay for the care, support, and
education of the child for the period of one year or failure of a
birth parent to communicate with the child for the period of one year
is prima facie evidence that the failure was willful and without
lawful excuse.
SEC. 4.
SEC. 3. Section 9003 of the Family Code is amended to
read:
9003. (a) In a stepparent adoption, the consent of either or both
birth parents shall be signed in the presence of a notary public,
county clerk, probation officer, qualified court investigator, or
county welfare department staff member of any county of this state.
The notary public, county clerk, probation officer, qualified court
investigator, or county welfare department staff member before whom
the consent is signed shall immediately file the consent with the
clerk of the court where the adoption petition is filed. The clerk
shall immediately notify the probation officer or, at the option of
the board of supervisors, the county welfare department of that
county.
(b) If the birth parent of a child to be adopted is outside this
state at the time of signing the consent, the consent may be signed
before a notary or other person authorized to perform notarial acts.
(c) The consent, when reciting that the person giving it is
entitled to sole custody of the child and when acknowledged before
the notary public, county clerk, probation officer, qualified court
investigator, or county welfare department staff member, is prima
facie evidence of the right of the person signing the consent to the
sole custody of the child and that person's sole right to consent.
(d) A birth parent who is a minor has the right to sign a consent
for the adoption of the birth parent's child and the consent is not
subject to revocation by reason of the minority.
SEC. 4. Section 294 of the Welfare and
Institutions Code is amended to read:
294. The social worker or probation officer shall give notice of
a selection and implementation hearing held pursuant to Section
366.26 in the following manner:
(a) Notice of the hearing shall be given to the following persons:
(1) The mother.
(2) The fathers, presumed and alleged.
(3) The child, if the child is 10 years of age or older.
(4) Any known sibling of the child who is the subject of the
hearing if that sibling either is the subject of a dependency
proceeding or has been adjudged to be a dependent child of the
juvenile court. If the sibling is 10 years of age or older, the
sibling, the sibling's caregiver, and the sibling's attorney. If the
sibling is under 10 years of age, the sibling's caregiver and the
sibling's attorney. However, notice is not required to be given to
any sibling whose matter is calendared in the same court on the same
day.
(5) The grandparents of the child, if their address is known and
if the parent's whereabouts are unknown.
(6) All counsel of record.
(7) If the court knows or has reason to know that an Indian child
is involved, then to the Indian custodian and the tribe of that
child. If the identity or location of the parent or Indian custodian
and the tribe cannot be determined, notice shall be given to the
Bureau of Indian Affairs.
(8) To any unknown parent by publication, if ordered by the court,
in addition to and concurrently with any other notice required under
this section, in any case in which an alleged parent has been
determined by the petitioner to not be a parent and the identity of
one or both of the parents, or alleged parents, is unknown. In any
case where an alleged parent is known by the petitioner to not be a
parent and the identity of one or both of the parents or alleged
parents is unknown, the petitioner shall seek an order for
publication notice pursuant to this paragraph as soon as possible,
and in no case later than 30 days after the petitioner discovers the
parent is unknown. An order of publication pursuant to this paragraph
shall be based on an affidavit from the petitioner describing
efforts made to identify the unknown parent or parents and a finding
by the court that there has been due diligence in attempting to
identify the unknown parent.
(b) The following persons shall not be notified of the hearing:
(1) A parent who has relinquished the child to the State
Department of Social Services or to a licensed adoption agency for
adoption, and the relinquishment has been accepted and filed with
notice as required under Section 8700 of the Family Code.
(2) An alleged father who has denied paternity and has executed a
waiver of the right to notice of further proceedings.
(3) A parent whose parental rights have been terminated.
(c) (1) Service of the notice shall be completed at least 45 days
before the hearing date. Service is deemed complete at the time the
notice is personally delivered to the person named in the notice or
10 days after the notice has been placed in the mail, or at the
expiration of the time prescribed by the order for publication.
(2) In the case of an Indian child, notice to the Indian custodian
and the tribe shall be completed at least 10 days before the
hearing.
(3) In the case of an Indian child, if notice is given to the
Bureau of Indian Affairs, the bureau shall have 15 days after receipt
to provide the requisite notice to the parent or Indian custodian
and the tribe.
(4) Service of notice in cases where publication is ordered shall
be completed at least 30 days before the date of the hearing.
(d) Regardless of the type of notice required, or the manner in
which it is served, once the court has made the initial finding that
notice has properly been given to the parent, or to any person
entitled to receive notice pursuant to this section, subsequent
notice for any continuation of a Section 366.26 hearing may be by
first-class mail to any last known address, by an order made pursuant
to Section 296, or by any other means that the court determines is
reasonably calculated, under any circumstance, to provide notice of
the continued hearing. However, if the recommendation changes from
the recommendation contained in the notice previously found to be
proper, notice shall be provided to the parent, and to any person
entitled to receive notice pursuant to this section, regarding that
subsequent hearing.
(e) The notice shall contain the following information:
(1) The date, time, and place of the hearing.
(2) The right to appear.
(3) The parents' right to counsel.
(4) The nature of the proceedings.
(5) The recommendation of the supervising agency.
(6) A statement that, at the time of hearing, the court is
required to select a permanent plan of adoption, legal guardianship,
or long-term foster care for the child.
(7) In the case of an Indian child, the notice shall contain a
statement that the parent or Indian custodian and the tribe have a
right to intervene at any point in the proceedings. The notice shall
also include a statement that the parent or Indian custodian and the
tribe shall, upon request, be granted up to 20 additional days to
prepare for the proceedings.
(f) Notice to the parents may be given in any one of the following
manners:
(1) If the parent is present at the hearing at which the court
schedules a hearing pursuant to Section 366.26, the court shall
advise the parent of the date, time, and place of the proceedings,
their right to counsel, the nature of the proceedings, and the
requirement that at the proceedings the court shall select and
implement a plan of adoption, legal guardianship, or long-term foster
care for the child. The court shall direct the parent to appear for
the proceedings and then direct that the parent be notified
thereafter by first-class mail to the parent's usual place of
residence or business only.
(2) Certified mail, return receipt requested, to the parent's last
known mailing address. This notice shall be sufficient if the child
welfare agency receives a return receipt signed by the parent.
(3) Personal service to the parent named in the notice.
(4) Delivery to a competent person who is at least 18 years of age
at the parent's usual place of residence or business, and thereafter
mailed to the parent named in the notice by first-class mail at the
place where the notice was delivered.
(5) If the residence of the parent is outside the state, service
may be made as described in paragraph (1), (3), or (4) or by
certified mail, return receipt requested.
(6) If the recommendation of the probation officer or social
worker is legal guardianship or long-term foster care, service may be
made by first-class mail to the parent's usual place of residence or
business.
(7) If the a parent's identity
is known but his or her whereabouts are unknown and
the parent cannot, with reasonable diligence, be served in any manner
specified in paragraphs (1) to (6), inclusive, the petitioner shall
file an affidavit with the court at least 75 days before the hearing
date, stating the name of the parent and describing the efforts made
to locate and serve the parent.
(A) If the court determines that there has been due diligence in
attempting to locate and serve the parent and the probation officer
or social worker recommends adoption, service shall be to that parent'
s attorney of record, if any, by certified mail, return receipt
requested. If the parent does not have an attorney of record, the
court shall order that service be made by publication of citation
requiring the parent to appear at the date, time, and place stated in
the citation, and that the citation be published in a newspaper
designated as most likely to give notice to the parent. Publication
shall be made once a week for four consecutive weeks. Whether notice
is to the attorney of record or by publication, the court shall also
order that notice be given to the grandparents of the child by
first-class mail.
(B) If the court determines that there has been due diligence in
attempting to locate and serve the parent and the probation officer
or social worker recommends legal guardianship or long-term foster
care, no further notice is required to the parent, but the court
shall order that notice be given to the grandparents of the child by
first-class mail.
(C) In any case where the residence of the parent becomes known,
notice shall immediately be served upon the parent as provided for in
either paragraph (2), (3), (4), (5), or (6).
(8) If the identity of one or both of the parents, or alleged
parents, of the child is unknown, or if the name of one or both
parents is uncertain, then that fact shall be set forth in the
affidavit and the court, if ordering publication, shall order the
published citation to be directed to either the father or mother, or
both, of the child, and to all persons claiming to be the father or
mother of the child, naming and otherwise describing the child.
An order of publication pursuant to this paragraph shall be based on
an affidavit describing efforts made to identify the unknown parent
or parents. If the court determines there has been due diligence in
attempting to identify the unknown parent, the court may order notice
by publication pursuant to this section no less than 60 or more than
75 days prior to the hearing. Service made by publicatio
n pursuant to this paragraph shall require the unknown parent or
parents to appear at the date, time, and place stated in the
citation. Publication shall be made once a week for four consecutive
weeks. Consistent with the provisions of Sections 7665 and 7666 of
the Family Code, the court may issue an order dispensing
with notice to a natural parent or possible natural parent if, after
inquiry and a determination that there has been due diligence in
attempting to identify the unknown parent, the court is unable to
identify the natural parent and no person has appeared claiming to be
the natural parent.
(g) Notice to the child and all counsel of record shall be by
first-class mail.
(h) In the case of an Indian child, notice to the tribe shall be
by registered mail, return receipt requested.
(i) Notwithstanding subdivision (a), if the attorney of record is
present at the time the court schedules a hearing pursuant to Section
366.26, no further notice is required, except as required by
subparagraph (A) of paragraph (7) of subdivision (f).
(j) This section shall also apply to children adjudged wards
pursuant to Section 727.31.
(k) The court shall state the reasons on the record explaining why
good cause exists for granting any continuance of a hearing held
pursuant to Section 366.26 to fulfill the requirements of this
section.
SEC. 5. Section 305.6 of the Welfare and
Institutions Code is amended to read:
305.6. (a) Any peace officer may, without a warrant, take into
temporary custody a minor who is in a hospital if the release of the
minor to a prospective adoptive parent poses an immediate danger to
the minor's health or safety.
(b) (1) Notwithstanding subdivision (a) and Section 305, a peace
officer may not, without a warrant, take into temporary custody a
minor who is in a hospital if all of the following conditions exist:
(A) The minor is a newborn who tested positive for illegal drugs
or whose birth mother tested positive for illegal drugs.
(B) The minor is the subject of a petition for
proposed adoption and a Health Facility Minor Release
Report, prescribed by the department, has been completed by the
hospital, including the marking of the boxes applicable to an
independent adoption or agency adoption planning, and signed by the
placing birth parent or birth parents and (1) the
prospective adoptive parent or parents, (2) an attorney for the
prospective adoptive parent or parents, or (3) an authorized
representative of a licensed adoption agency prior to the
discharge of the birth parent or the minor from the hospital. Prior
to signing of the Health Facility Minor Release Report, the birth
parent or birth parents shall be given a notice written in at least
14-point pica type, containing substantially the following
statements:
(i) That the Health Facility Minor Release Report does not
constitute consent to adoption of the minor by the prospective
adoptive parent or parents, or any other prospective adoptive parent
or parents.
(ii) That the Health Facility Minor Release Report does not
constitute a relinquishment of parental rights for the purposes of
adoption.
(iii) That the birth parent or birth parents or any person
authorized by the birth parent or birth parents may reclaim the minor
at any time from the prospective adoptive parent or parents or any
other person to whom the minor was released by the hospital, until an
adoption placement agreement or a relinquishment is signed by the
birth parent or birth parents.
This notice shall be signed by the birth parent or birth parents
and attached to the Health Facility Minor Release Report.
(C) The release of the minor to a prospective adoptive parent or
parents , their attorney, or an authorized
representative of a licensed adoption agency does not pose an
immediate danger to the minor.
(D) An attorney or an adoption agency has provided documentation
stating that he or she, or the agency, is representing the
prospective adoptive parent or parents for purposes of the adoption.
In the case of an independent adoption, as defined in Section 8524 of
the Family Code, the attorney or adoption agency shall provide
documentation stating that the prospective adoptive parent or parents
have been informed that the child may be eligible for benefits
provided pursuant to the Adoption Assistance Program, as set forth in
Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9,
only if, at the time the petition is filed, the child has met the
requirements to receive federal supplemental security income benefits
pursuant to Subchapter XVI (commencing with Section 1381) of Chapter
7 of Title 42 of the United States Code, as determined and
documented by the federal Social Security Administration.
(E) The prospective adoptive parent or parents or their
representative attorney, or an authorized
representative of a licensed adoption agency provides
a all of the following to the local child protective
services agency or to the peace officer who is at the hospital to
take the minor into temporary custody:
(i) A copy of the Health Facility
Minor Release Report with the signed notice to the birth parent or
birth parents as described in subparagraph (B) and a
.
(ii) A copy of the petition for
adoption to the local child protective services agency or to
the peace officer who is at the hospital to take the minor into
temporary custody or a statement signed by either the
prospective adoptive parents or an authorized representative of the
adoption agency, that this child is the subject of a proposed
adoption.
(iii) A copy of a written statement
that the prospective adoptive parents or adoption agency personnel
will immediately notify the local child protective services agency if
the adoption plan is terminated for any reason .
(2) Notwithstanding Section 305 or subdivision (a) of this
section, a peace officer may not, without a warrant, take into
temporary custody a minor who is in a hospital if all of the
following conditions exist:
(A) The minor is a newborn who tested positive for illegal drugs
or whose birth mother tested positive for illegal drugs.
(B) The minor is the subject of a petition
proposed for adoption and a prospective adoptive parent or
prospective adoptive parents have been licensed to act as a foster
parent or foster parents of the minor pending finalization of the
petition for adoption.
(C) The release of the minor to the prospective adoptive parent or
prospective adoptive parents does not pose an immediate danger to
the minor.
(D) The prospective adoptive parent or parents or their
representative provides to the local child protective services
agency or to the peace officer who is at the hospital to take the
minor into temporary custody a copy of the petition
for adoption and documents evidencing licensure as a foster
parent or foster parents to the local child protective
services agency or to the peace officer who is at the hospital to
take the minor into temporary custody as well as a
written statement of their intent to adopt the child, and a written
statement agreeing to notify the local child protective services
agency if the adoption plan is terminated for any reason .
(3) If at the time the minor is released to the custody of a
prospective adoptive parent or parents or their representative
pursuant to paragraph (1) or (2), the petition for adoption of the
minor has not been filed with the court, the petition for adoption
shall be filed within 15 calendar days of the date the birth parent
was released from the hospital.
(4)
(3) A copy of an adoption placement agreement signed by
the placing birth parent or birth parents and the prospective
adoptive parent or parents may be used in place of the Health
Facility Minor Release Report and notice to the birth parent or birth
parents as described in subparagraph (B) of paragraph (1).
(c) Nothing in this section is intended to create a duty that
requires law enforcement to investigate the prospective adoptive
parent or parents.
SEC. 6. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.