BILL NUMBER: SB 302 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 25, 2005
AMENDED IN SENATE MAY 4, 2005
AMENDED IN SENATE APRIL 20, 2005
INTRODUCED BY Senator Scott
FEBRUARY 16, 2005
An act to amend Sections 7630, 8604, and 9003 of the Family Code,
and to amend Section 294 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.
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 authorize, in a stepparent adoption, 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 relinquished to or a prospective adoptive parent
of the child 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 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: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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 relinquished to
or a prospective adoptive parent of the child, 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 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. 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. 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. court
pursuant to subdivision (h).
(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 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)
(g) 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
publication 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)
affidavit and the court, consistent with the provisions of
Sections 7665 and 7666 of the Family Code and subject to subdivision
(h), shall issue an order dispensing with notice to a natural parent
or possible natural parent under this section 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.
(h) After a determination that there has been due diligence in
attempting to identify an unknown parent pursuant to subdivision (g),
the court shall consider whether publication notice would be likely
to lead to actual notice to the unknown parent. The court may order
publication notice if, on the basis of all information before the
court, the court determines that notice by publication is likely to
lead to actual notice to the parent. If publication notice to an
unknown parent is ordered, the court 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 publication 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.
(i) Notice to the child and all counsel of record shall
be by first-class mail.
(h)
(j) In the case of an Indian child, notice to the tribe
shall be by registered mail, return receipt requested.
(i)
(k) 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)
(l) This section shall also apply to children adjudged
wards pursuant to Section 727.31.
(k)
(m) 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.
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.