BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 302 S
Senator Scott B
As Amended April 20, 2005
Hearing Date: April 26, 2005 3
Family Code; Welfare and Institutions Code 0
GMO:cjt 2
SUBJECT
Adoptions
DESCRIPTION
This bill would make various changes to statutes relating
to adoptions. It would:
Authorize, in a stepparent adoption, the consent of a
birth parent to be signed before a notary public;
Provide that the consent of a presumed father is not
required for adoption unless he was a presumed father
either (a) before the mother's relinquishment or consent
became irrevocable, or (b) before the mother's parental
rights were terminated;
Authorize an adoption agency to whom the child has been
relinquished or a prospective adoptive parent to bring an
action to determine paternity;
Authorize the court to order that a notice of termination
of parental rights may be served by publication to
unknown parents of the child; and
Revise the procedures for a peace officer to take a minor
who is in a hospital into temporary custody when there is
a prospective adoptive parent.
BACKGROUND
The sponsor of this bill, the Academy of California
Adoption Lawyers (ACAL), states that SB 302 would address
some technical and some unresolved legal issues relating to
(more)
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the process of adoptions.
CHANGES TO EXISTING LAW
1. Existing law provides that a man may be a presumed
father if certain conditions are met, and provides that
this presumption of a father-child relationship may be
rebutted. [Family Code 7611.]
Existing law provides that a child, the child's natural
mother, or a presumed father may bring an action to
determine whether there exists a father-child
relationship or not. [Fam. C. 7630.]
This bill would permit an adoption agency to whom the
child has been or is proposed to be relinquished, or a
person who is a prospective adoptive parent, to bring an
action to establish paternity or for the purpose of
declaring the nonexistence of the father-child
relationship.
2. Existing law generally provides that where a birth
mother has relinquished for or consents to an adoption, a
child having a presumed father may not be adopted without
the presumed father's consent, if living. [Family Code
8604.]
This bill would provide that the consent of a presumed
father is not required for the child to be adopted,
unless he became a presumed father before the mother's
relinquishment or consent to adoption of the child became
irrevocable, or before the mother's parental rights have
been terminated.
3. Existing law requires, in a step parent adoption, the
consent of either or both birth parents to be signed
before the county clerk, probation officer, qualified
court investigator, or county welfare department
employee, who shall immediately file the consent with the
clerk of the court where the adoption petition is filed.
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Existing law permits the consent by a birth parent who is
outside this state to be signed before a notary or other
person authorized to perform notarial acts.
This bill would permit the signing of the consent by
either or both birth parents, in a step parent adoption,
to be acknowledged by a notary public.
4. Existing law specifies the procedure to be followed,
and the persons to whom notice must be given, for a
hearing to terminate parental rights to a dependent
child. The hearing on termination of parental rights
usually precedes the permanent placement of the child,
whether into adoption or guardianship.
This bill would authorize the court to order publication
of the notice to terminate parental rights when the
identity of one or both parents, or alleged parents, is
unknown.
5. Existing law permits a peace officer, without a
warrant, to 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 and safety. Existing law however
specifies conditions under which a peace officer may not
take a minor who is in a hospital into temporary custody.
One of those conditions is the completion of a Health
Facility Minor Release Report, to be signed by one or
both birth parents and the prospective adoptive parent.
Another requires the prospective adoptive parent to
provide copies of specified documents relating to the
adoption petition to the child protective services agency
or the peace officer at the hospital.
This bill would change the requirement that the
prospective adoptive parent provide a copy of the
adoption petition to the peace officer on site to a
requirement to provide a signed written statement of
intent to adopt the minor.
This bill would permit the attorney for the prospective
adoptive parent or an authorized representative of a
licensed adoption agency to sign the Health Facility
Minor Release Report and to provide required documents to
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the local child protective services agency and to the
peace officer at the hospital.
COMMENT
1. Need for the bill
This is ACAL's annual "technical cleanup bill" to make
substantive changes in the law to facilitate the adoption
process. The issues that the sponsor determined to
address in this bill have arisen in the field, and
reflect the solutions offered by practitioners in this
specialized area.
2. When a presumed father's consent is not required
Under existing law, a child with a presumed father may
not be adopted without the consent of the child's birth
parents, if living, with one exception (where the
noncustodial birth parent has willfully failed to support
and communicate with the child). [Family Code 8604.]
A man is presumed to be a child's natural father under
several scenarios. One scenario is if, after the child's
birth, he and the birth mother married each other in
apparent compliance with the law, but the attempted
marriage is or could be declared invalid, and either (1)
with his consent he is named as the child's father on the
birth certificate, or (2) he is obligated to support the
child under a written voluntary promise or by court
order. He may also be a presumed father if he receives
the child into his home and openly holds out the child as
his child. [Family Code 7611.]
SB 302 would provide that for the consent of a "presumed
father" to be necessary for an adoption to proceed, the
presumed father must have become a presumed father either
(a) before the mother's relinquishment for or consent to
the adoption became irrevocable, or (b) before the
mother's parental rights have been terminated.
The birth mother's relinquishment or consent becomes
irrevocable 30 days after the mother signs the
relinquishment or consent forms [Fam. C. 8700(h);
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8814.5]. Termination of parental rights usually occurs
much later, when an agency has placed the child in an
adoptive or pre-adoptive home and the parental rights of
the mother are about to be extinguished.
According to the author, current law allows birth fathers
to step forward very late in the adoption process (after
birth mother's consent has become irrevocable), after
having had no involvement with their child, and without
being named on a child's birth certificate, only to stop
the adoption by marrying the birth mother. "This
scenario," the author states, "is rare, but disruptive"
of the adoption process.
SB 302 would prevent a father from gaining "presumed
father" status by marrying the mother in a last-minute
attempt to stop the adoption. It would not prevent a
father from asserting his rights as an "alleged father"
whose rights may more easily be terminated in order for
the adoption to proceed.
It is more difficult to proceed with an adoption where a
presumed father exists and he refuses to sign the
consent. The presumption of paternity is rebuttable and
affects the burden of proof. It may be rebutted in an
appropriate action only by clear and convincing evidence.
Therefore, in an action to declare the nonexistence of a
father-child relationship, i.e., to facilitate the
adoption process, the presumed father's status must be
rebutted with clear and convincing evidence. In
contrast, an alleged father's claim may be set aside with
a preponderance of the evidence, and termination of
parental rights would be less difficult because only the
best interest of the child would be considered in the
decision.
In keeping with this new provision, SB 302 also would
permit an adoption agency to whom a child has been
relinquished for adoption or a prospective adoptive
parent to bring the action establishing the existence or
non-existence of paternity. According to the author, this
would eliminate the need for the agency or the
prospective adoptive parent to establish a guardianship
(currently a routine procedural hurdle in adoptions) to
rebut the presumed father status of a man who is married
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to the mother of the prospective adoptive child but who
is not the father of the child, or the man who is the
natural father of the child but who married the mother
after the child's birth and after the mother's consent to
the adoption had become irrevocable.
Together, these two provisions would make it much easier
for an adoption agency or a prospective adoptive parent
to dispense with the consent of a reluctant father who
became a presumed father late in the process, by filing
the action to establish the nonexistence of the father
child relationship (by only a preponderance of the
evidence) and, if the father proves to be an alleged
father, moving quickly to terminate the parental rights
of the alleged father under Family Code 7662.
Proponents state that this change in the law is important
in order to provide some certainty and credibility to the
established process for adoptions. However, there may be
some unintended consequences of this change. For
example, a soldier sent to Iraq who did not know that his
wife who divorced him remarried and had a child within
300 days of their last cohabitation may not know of the
child and of the proposed adoption until late in the
process. Should this man be denied the benefit of being
a presumed father (requiring the party challenging the
status to provide clear and convincing evidence to rebut
the presumption)? Of course, this man may still
challenge the adoption as an alleged father, as he may
under existing law. In this case, the best interest of
the child will determine whether the adoption should
proceed.
Another situation may be where the natural mother
reluctantly (although legally) consents to the adoption
of her child, the natural father who originally signed a
voluntary support agreement while in the hospital and
then disappeared comes to his senses and marries her
after the 30 days waiting period had passed, and she and
the child's natural father decide they want to raise the
child after all. Under this bill, the natural mother or
father may still petition for the existence of the
father-child relationship to require consent, but the
father would not be entitled to the presumption afforded
by 7611. The adoption may thus proceed without the
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father's consent, if it is in the best interest of the
child.
3. Procedural cleanup provisions
a. Step parent adoptions: consent signed before notary
Current law allows a birth parent who is out of state
to sign a consent to a step parent adoption in the
presence of a notary public or other person authorized
to perform notarial acts. This statute was enacted to
accommodate the reality of a birth parent having moved
out of state by the time the step parent adoption
takes place. All other birth parents must sign the
consent in the presence of a county clerk, probation
officer, qualified court investigator, or county
welfare department employee of any county of the
state, who must immediately file the signed consent
with the clerk of the court of the county where the
adoption petition is filed.
SB 302 would allow a birth parent who is in state to
sign the consent to adoption of the child by the
child's step parent before a notary public as well.
The reason for this, according to the author, is to
simply make it more convenient to the birth parent,
who may live in state but far from the county in which
the adoption petition is filed. Step parents who are
adopting the child are also not subject to the
requirement of advisements prior to consent that are
applicable to independent or agency adoptions, so
there is little reason not to permit the signing of
the consent before the more conveniently available
notary public.
b. Notice by publication to unknown birth parents
In dependency proceedings, long delays are sometimes
caused by continuances occasioned by faulty service of
notices, which in turn could be caused by the frequent
movement of persons with interest in the dependent
child. To be sure, rules regarding service of notices
of hearings are strictly adhered to, as constitutional
rights of the child, the child's parents, and other
interested parties are at stake. The rules for
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noticing in the early stages of the dependency
proceeding, especially, allow for publication of a
notice, if some of the persons to whom notice would
normally have to be given have moved, and there is no
forwarding address. Published notices normally name
the persons whose interest in the child are
established by law.
The methods of service of a notice of a hearing to
terminate parental rights do not include service by
publication. This bill would provide for the
publication of a notice to unknown persons of a
hearing to terminate parental rights (usually a
prelude to adoption of the child), in order to ensure
compliance with the statutory requirements of notice.
This method of service would be available only upon
order of the court, in cases where the identities of
one or both birth or alleged parents are unknown. The
petition for an order for publication must be
accompanied by an affidavit describing efforts made to
identify the unknown parent or parents.
This anomaly in the law actually happened in a case
where the alleged father turned out not to be one, the
birth mother had disappeared by then, and there was no
way of knowing who were the other potential alleged
fathers on whom notice must be served. The adoption
was delayed until a solution by publication of a
notice to unknown parents was crafted. SB 302 would
codify this solution. This procedure would also apply
to "safely surrendered babies" where the identity of
either or both parents normally would be unknown.
4. Protecting drug-exposed newborn babies
AB 962 (La Suer, Ch. 568, Statutes of 2003), revised the
procedure for a peace officer, without a warrant, to take
into temporary custody a minor in a hospital, if the
release of the minor to a prospective adoptive parent
poses an immediate danger to the child's health or
safety. That bill also established the rules for the
release of a minor who was born to a mother who tested
positive or a newborn who tested positive for trace drugs
to prospective adoptive parents. The rules call for a
Health Facility Minor Release Report signed by both the
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birth parent and the prospective adoptive parent and the
delivery of specified documents related to the adoption
to the local child protective services or the peace
officer on site.
Proponents of this portion of SB 302 insist that the
current procedures still place unreasonable burdens on
the prospective adoptive parents and make it difficult
for them to take custody of the drug-exposed baby before
the child enters the foster care system. They point to
an unfortunate case where the peace officer took custody
and the local child protective services placed the baby
in a foster home even though the prospective adoptive
family was around and wanted to take the baby into their
home.
The restrictions on the prospective adoptive family's
standing to take such a child into custody were enacted
to ensure that the child would not be placed in the
prospective adoptive parents' home prior to a
determination that they do qualify to be the adoptive
parents and that it is likely the child will be placed in
their home rather than in another prospective adoptive
family's home. Normally, the mere fact that the
drug-exposed birth mother (who has just given birth) has
relinquished the child or signed a consent to adoption is
not sufficient if the relinquishment or the consent has
not become irrevocable (either becomes irrevocable 30
days after signing). In the meantime, the county and the
state have an obligation to care for the drug-exposed
child. This is the reason for the requirement that the
child be the subject of a petition for adoption, not just
the subject of a proposed adoption, before custody of the
child may be given to the prospective adoptive parents.
This bill would delete the requirement of a petition for
adoption and replace it with a written statement that the
child is the subject of a proposed adoption, signed by
either the prospective adoptive parent or by an
authorized representative of the adoption agency. This
statement, together with another written statement that
the prospective adoptive parents or the adoption agency
would notify the local child protective services if the
adoption plan is terminated for any reason, and the
signed Health Facility Minor Release form, are supposed
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to satisfy the state's obligation to take temporary
custody of the child and allow release of the child to
the prospective adoptive parents or their attorney or an
authorized representative of the adoption agency.
These proposed changes to Welfare and Institutions Code
305.6 make the rules so loose that almost anyone can
claim to be a prospective adoptive parent and prevent the
peace officer or the local child protective services from
taking custody of a drug-exposed newborn. None of the
statements that a prospective adoptive parent or even the
adoption agency may make as to the proposed adoption need
to be certified or acknowledged, and a proposal to adopt
is a long way from a firm commitment such as a petition
to adopt.
SHOULD THIS SECTION OF SB 302 BE DELETED FROM THE BILL?
The other proposed changes to 305.6 would allow the
same statements to replace a petition for adoption, but
in the context of prospective adoptive parents who have
been licensed to act as foster parents of the minor
pending finalization of the petition for adoption.
Current law requires that a copy of the petition be
provided to the peace officer on site or the local child
protective services agency, together with a copy of the
adoption placement agreement signed by the placing birth
parent or parents. Current law also requires the
petition, if not yet filed, to be filed within 15 days of
the date the birth parent was released from the hospital.
SB 302 would not only delete the requirement that a copy
of the petition for adoption be provided and replace it
with a statement of proposed adoption, an intent to adopt
and an agreement to notify the local child protective
services agency if the adoption plan is terminated for
any reason, it would also delete the requirement that the
petition for adoption be filed within 15 days of the
birth mother's release from the hospital.
Again, the loosening of these established rules is
fraught with danger to the child. There is no reason why
a prospective adoptive parent already licensed as a
foster family for the child would not qualify as the
placement home for the child, once the local child
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services agency takes temporary custody of the child. By
removing the requirements now in the law, a fragile
newborn could be wrongfully placed in the hands of
strangers on their word that they intend to adopt the
child and that they would notify the authorities if they
change their mind.
SHOULD THIS SECTION OF THE BILL BE DELETED?
It should be noted that the entire statute relating to
the release of such a minor into the temporary custody of
a peace officer is conditioned on the peace officer not
having a warrant to take temporary custody. All that a
local child protective services agency needs (or the
peace officer) is a warrant, which is not difficult to
obtain for a drug-exposed newborn, and the prospective
adoptive parent who wants to take the child into custody,
regardless of whether he or she has been licensed as a
foster parent for the child, would have to wait anyway
for a court hearing to make his or her case for temporary
custody.
Support: None Known
Opposition: None Known
HISTORY
Source: Academy of California Adoption Lawyers
Related Pending Legislation: None Known
Prior Legislation: SB 1512 (Scott, Ch. 260, Stats. 2002);
SB 182 (Scott, Ch. 251, Stats. 2003);
SB 1357 (Scott, Ch. 858, Stats. 2004)
[All were "cleanup bills" to the adoption
statutes.]
AB 962 (LaSuer, Ch. 568, Stats. 2003). (See
Comment 4.)
Prior Vote: None
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