BILL ANALYSIS
SB 302
Page 1
SENATE THIRD READING
SB 302 (Scott)
As Amended September 1, 2005
Majority vote
SENATE VOTE :40-0
JUDICIARY 9-0 APPROPRIATIONS 17-0
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|Ayes:|Jones, Harman, Evans, |Ayes:|Chu, Sharon Runner, Bass, |
| |Haynes, Laird, Leslie, | |Berg, Calderon, Emmerson, |
| |Levine, Lieber, Montanez | |Haynes, Laird, Klehs, |
| | | |Leno, Nakanishi, Nation, |
| | | |Levine, Saldana, Walters, |
| | | |Yee, Mullin |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Makes several changes to adoption requirements.
Specifically, this bill :
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.
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5)Clarifies that if a parent's identity is known, but his or her
whereabouts are unknown and the probations officer or social
worker recommends adoption, notice is required to be provided
to a child's grandparents only if their identities and
addresses are known.
6)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. If the court
determines that there has been due diligence in attempting to
identify the parent or parents and legal guardianship or
long-term foster care is recommended, provides that no further
notice to the unknown parent(s) is required.
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.
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.
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.
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.
5)Specifies the procedure to be followed, and the persons to
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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.
FISCAL EFFECT : According to the Assembly Appropriations
analysis, negligible costs to courts and adoption agencies to
continue finalizing adoptions.
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.
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).
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).
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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."
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.
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 also 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.
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
a hearing to terminate parental rights. This bill would provide
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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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0012761