BILL ANALYSIS
SB 302
Page 1
Date of Hearing: June 28, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 302 (Scott) - As Amended: June 22, 2005
PROPOSED CONSENT
SENATE VOTE : 40-0
SUBJECT: ADOPTIONs
KEY ISSUES :
1)SHOULD THE CONSENT OF A PRESUMED FATHER TO AN ADOPTION NOT BE
REQUIRED IF THE MAN ONLY ATTAINED THAT STATUS THROUGH
COLLUSION WITH THE BIRTH MOTHER AFTER SHE HAD already
RELINQUISHED HER RIGHTS TO the CHILD?
2)IN ORDER TO PREVENT UNDUE DELAYS, SHOULD COURTS IN AN ACTION
TO TERMINATE PARENTAL RIGHTS BE PERMITTED TO AUTHORIZE SERVICE
BY PUBLICATION WHERE THE IDENTITY OF THE PARENTS IS UNKNOWN?
SYNOPSIS
This non-controversial bill, sponsored by the Academy of
California Adoption Lawyers, is Senator Scott's annual bill to
improve the adoption process. This bill would make various
changes to statutes relating to adoptions, including (1)
providing 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; (2)
authorizing an adoption agency to whom the child has been
relinquished or a prospective adoptive parent to bring an action
to determine paternity; (3) allowing the consent of a birth
parent in a stepparent adoption to be signed before a notary
public; and (4) authorizing the court to order that a notice of
termination of parental rights may be served by publication to
unknown parents of the child. These changes, according to the
author, would help better expedite adoptions and to increase the
permanency of pre-adoptive placements. There is no opposition.
SUMMARY : Makes several changes to adoption requirements.
Specifically, this bill :
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1)Permits an adoption agency to whom the child has been
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)Allows an action, brought by a licensed California adoption
agency to determine parentage, to be brought in the county
where the adoption agency maintains an office.
3)Provides that the consent of a man presumed to be a father,
through marriage or attempted marriage or through a voluntary
declaration of paternity, is not required for the child to be
adopted, if he became a presumed father after the mother's
relinquishment or consent to adoption of the child became
irrevocable, or after the mother's parental rights were
terminated.
4)Permits the signing of the consent by either or both birth
parents, in a step parent adoption, to be acknowledged by a
notary public and then requires the notary public to
immediately file the consent with the court clerk where the
adoption petition is filed.
5)Authorizes the court to order publication of the notice for a
hearing to terminate parental rights when the identity of one
or both parents, or alleged parents, is unknown.
EXISTING LAW :
1)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. Conditions include
marrying or attempting to marry the child's mother, as
specified, and receiving the child into the man's home and
openly holding out the child as his natural child. (Family
Code Section 7611.)
2)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. Provides that such
an action may be brought, among other places, in the county
where the child resides or is found. (Family Code Sections
7620, 7630.)
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3)Provides generally 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. (Family Code Section 8604.)
4)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. 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. (Family Code
Section 9003.)
5)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. (Welfare &
Institutions Code Section 294.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : This non-controversial bill, sponsored by the Academy
of California Adoption Lawyers (ACAL), is ACAL's annual
"technical cleanup bill" to make substantive changes in the law
to facilitate the adoption process. This bill would make
various changes to statutes relating to adoptions, including 1)
providing that the consent of certain presumed fathers is not
required for adoption unless they became presumed fathers either
a) before the mothers' relinquishment or consent became
irrevocable, or b) before the mothers' parental rights were
terminated; 2) authorizing an adoption agency to whom the child
has been relinquished or a prospective adoptive parent to bring
an action to determine paternity; 3) allowing the consent of a
birth parent in a stepparent adoption to be signed before a
notary public; and 4) authorizing the court to order that a
notice of termination of parental rights may be served by
publication to unknown parents of the child. These changes,
according to the author, would help to better expedite adoptions
and to increase the permanency of pre-adoptive placements.
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Limiting Who May Be a Presumed Father's for Purposes of Consent
to Adoption . 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 Section 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 through other
means, including by signing a declaration of paternity or by
receiving a child into his home and openly holding out the child
as his child. (Family Code Section 7611.)
This bill would provide that for the consent of a man who is a
presumed father, under sections specified below, to be necessary
for an adoption to proceed, the presumed father must have become
a presumed father either 1) before the mother's relinquishment
for, or consent to, the adoption became irrevocable, or 2)
before the mother's parental rights have been terminated. This
applies to any man who is a presumed father under Family Code
Section 7540 (conclusive presumption concerning child of a
marriage), Family Code Section 7570 (presumption based on
voluntary paternity declaration) or Family Code Section 7611(a),
(b) or (c) (presumption based on the man marrying or attempting
to marry the mother).
The birth mother's relinquishment or consent becomes irrevocable
30 days after the mother signs the relinquishment or consent
forms (Family Code Sections 8700(h), 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.
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This bill would prevent a father from gaining "presumed father"
status by marrying the mother or signing a voluntary paternity
declaration with her in a last-minute attempt to stop the
adoption. It would not, however, prevent a biological father
from asserting his rights as an "alleged father."
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 in order
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. In that case, termination of
parental rights is less difficult because only the best interest
of the child would be considered in the decision.
In keeping with this new provision, this bill 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 does
not consent to the adoption.
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 to terminate the parental rights of
the alleged father under Family Code Section 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, consider
the situation where the natural mother reluctantly (although
legally) consents to the adoption of her child after the natural
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father has disappeared. Now suppose the natural father returns
and either signs a voluntary paternity declaration or marries
the mother after the 30-day waiting period has passed, and she
and the 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, but
the father would not be entitled to the presumption afforded by
Section 7611. The adoption may thus proceed without the
father's consent, if it is in the best interest of the child.
The father would still be able to challenge the adoption as an
alleged father and the best interest of the child would
determine whether the adoption should proceed.
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 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.
This bill 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. The notary public will then be
required immediately to file the consent with the court clerk
where the adoption petitioner is filed.
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. The rules for noticing in the early stages of
the dependency proceeding 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.
Service by publication is not currently allowed for a notice of
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a hearing to terminate parental rights. 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 procedure would also apply to "safely
surrendered babies" where the identity of either or both parents
normally would be unknown.
Prior Legislation : SB 1512 (Scott, Chapter 260, Statutes 2002);
SB 182 (Scott, Chapter 251, Statutes 2003); SB 1357 (Scott,
Chapter 858, Statutes 2004) were all clean-up bills to improve
the adoption statutes.
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers (sponsor)
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334