BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1325 S
Senator Scott B
As Amended April 18, 2006
Hearing Date: April 25, 2006 1
Family Code 3
BCP:cjt 2
5
SUBJECT
Adoption
DESCRIPTION
This bill would revise numerous aspects of adoption law
including those relating to assisted reproduction, felony
convictions of parents, appearance by prospective adoptive
parents and presumed father proceedings.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
The bill is the result of lengthy negotiations by the
sponsor, the Academy of California Adoption Lawyers (ACAL),
with interested parties over proposed adoption reforms.
Some objections have since been removed through those
negotiations, but several issues remain, as discussed in
the Comment section below.
Several of the included provisions are intended to update
current adoption law to accommodate new technologies. For
example, current law does not specifically address the
rights of parties to an assisted reproduction agreement.
Other provisions are intended as technical clarifications,
such as when a relinquishment of a child for adoption
becomes final. Remaining provisions focus on expediting
the adoption process.
(more)
SB 1325 (Scott)
Page 2
CHANGES TO EXISTING LAW
1. Existing law provides that a person who has sexual
intercourse in the state submits to jurisdiction of the
courts for actions with regards to any children
conceived. [Fam. Code Section 7620.]
Existing law provides that actions regarding conceived
children shall be brought either in the county the child
resides in, the county in which a licensed adoption
agency brings the action, or county in which the father's
probate proceedings are held. [Fam. Code Section 7620.]
This bill would define "assisted reproduction" and
"assisted reproduction agreement."
This bill would add that courts have jurisdiction over
any person who causes conception via assisted
reproduction with the intent to become a legal parent.
This bill would allow actions relating to assisted
reproduction agreements to be brought in the county in
which the child is either born or expected to be born.
This bill would allow parties to assisted reproduction
agreements to bring actions to establish legal parenthood
consistent with intent expressed in that agreement.
2. Existing law provides for separate proceedings to
determine whether a father is a presumed father and to
declare the child free from parental custody and control.
[Fam. Code Sections 7630; 7820 et. seq.]
This bill would require consolidation of those
proceedings.
3. Existing law allows actions to establish a
parent-child relationship before the birth of the child.
[Fam. Code Section 7633.]
This bill would allow courts to enter orders or judgments
before the birth of the child with regards to the
parent-child relationship. These orders or judgments
would not be effective until the birth of the child.
SB 1325 (Scott)
Page 3
4. Existing law allows termination of the parent-child
relationship when the parent is convicted of a felony and
the facts of the crime of which the parent is convicted
demonstrate the unfitness of the parent to have future
custody or control of the child. [Fam. Code Section
7825.]
This bill would allow courts to consider the pattern of a
parent's criminal record prior to the felony conviction
to determine whether the facts of the felony conviction
demonstrate parental unfitness.
5. Existing law requires prospective adoptive parents to
be examined by the court prior to entering a final order
of adoption. Counsel may appear for prospective adoptive
parents who are commissioned or enlisted in military
service when such personal appearance is impossible or
impracticable. [Fam. Code Sections 8612, 8613]
This bill would allow courts to waive the personal
appearance of prospective adoptive parents who are unable
to make an appearance due to impossibility or
impracticability. In those circumstances, prospective
adoptive parents may appear through counsel, at which
time the court may order an examination of the
prospective adoptive parent by deposition.
This bill would provide that if neither prospective
adoptive parent need appear before the court, the child
proposed to be adopted need not appear.
6. Existing law allows either birth parent to relinquish
their child to the Department of Social Services or
licensed adoption agency. Relinquishments are final
within 10 days after the department receives a certified
copy of the relinquishment form. [Fam. Code Section
8700.]
This bill would state that relinquishments are deemed
final 10 days after receipt of relinquishment or upon the
sending of written acknowledgment, if sent before the end
of the 10-day period.
COMMENT
SB 1325 (Scott)
Page 4
1. Stated need for the bill
ACAL, the sponsor of this bill, contends that this bill
will clean up, clarify and revise various family code
provisions relating to adoption. The intent of these
changes is to "expedite the adoption process." The key
changes are detailed in separate comments below. Also,
author's amendments to resolve various concerns are also
discussed therein and are listed in Comment 8.
2. Excusing appearance by prospective adoptive parents
Under current statute, courts must examine prospective
adoptive parents prior to granting a final order of
adoption. The historical purpose behind this examination
is to give the court a chance to "eyeball" the
prospective parents. Absent this examination, the court
may never see the parents prior to granting the adoption
This bill would allow a prospective adoptive parent to
appear through counsel upon a showing that it is
impossible or impracticable for that parent to appear.
The court may in turn request a deposition of the absent
prospective adoptive parent as necessary. According to
the sponsor, this is needed to accommodate these would-be
parents who are unable to attend the court hearing due a
temporary incapacitation, such as a recent car accident.
Although absent parents must meet the very high standard
of impossibility or impracticability to appear through
counsel, this provision may be problematic.
For example, if it is impracticable for a prospective
adoptive to leave their home due to severe car accident,
they could appear via counsel in the final adoption
hearing or the hearing could be postponed. The problem
with allowing this absence is that this is the exact
reason a court needs to see the prospective adoptive
parent. In that case, the court should see the parent to
ensure that they will be able to take care of the child.
Even if the parent is severely injured for a short period
of time, they must still care for their newly adopted
child.
An additional problem of allowing this waiver is that
courts may have never physically seen the prospective
SB 1325 (Scott)
Page 5
adoptive parents. Up until this point, the court has
likely corresponded with the prospective parents solely
on paper. Although the court had not visibly seen these
individuals, they must be seen by other county personnel
during their fingerprinting, background check and other
required processes. Presumably these other county
personnel are to provide the check to ensure that the
adoptive parents do exist, although physical appearance
before the court gives the court a visual of the adoptive
parents prior to granting the final adoption order.
Essentially this bill takes the existing provision
allowing military personnel to appear through counsel in
cases where their appearance is impossible or
impracticable, and applies it to all prospective adoptive
parents. The policy behind the provision for military
personnel was to allow these individuals to adopt
children even though they may be involuntarily deployed
outside of the country at the hearing. By accommodating
deployed military personnel, that provision ensured that
those personnel are not penalized for their military
involvement by preventing their adoption of children.
The same rationale does not follow for all prospective
adoptive parents. Unlike military personnel, it is
difficult to give the court guidance on what constitutes
impossibility or impracticability for these individuals.
SHOULD NOT NON-MILITARY PROSPECTIVE ADOPTIVE PARENTS BE
REQUIRED TO BE PRESENT AT THE FINAL ADOPTION HEARING
PRIOR TO THE ADOPTION OF THE CHILD?
SHOULD NOT THE PROVISION BE DELETED?
3. Consideration of parental criminal records
Parents have a fundamental right to the care, custody and
control of their minor children. These rights can be
terminated under certain specific circumstances,
including demonstration of parental unfitness. Existing
law allows for termination of parental rights where the
parent is convicted of a felony and the facts underlying
that crime prove the unfitness of the parent or parents
to have future custody or control of the child.
For example, if a parent is convicted of felony spousal
SB 1325 (Scott)
Page 6
abuse, the court may look at the facts of the abuse and
determine that the violent behavior indicates their
parental unfitness. SB 1325 would specifically allow the
court to consider the parent's entire criminal record in
that determination to the extent that the record
demonstrates a pattern evidencing parental unfitness.
Using the above example, if the parent has a history of
violent crimes, those crimes combined with the facts of
the current felony could demonstrate parental unfitness.
Essentially, this provision codifies a related version of
a recent California Court of Appeal decision which stated
that an "extensive criminal record alone is not
sufficient for termination of parental rights [but] . .
. a criminal record preceding a felony conviction can
inform a court's determination of whether the facts
underlying that particular conviction prove future
parental unfitness." In re Baby Girl M. (2006) 135 Cal.
App. 4th 1528, 1541. In the above example, the criminal
record preceding the conviction could demonstrate a
pattern of violence which renders the parent unfit.
Although this may sound like good policy, concerns arise
if remote convictions are allowed to be considered by the
court. This proposed provision would apply to the
termination of parental rights, a fundamental
constitutional right. Individuals with a criminal past
who may have reformed could have their criminal record
used against them. While these individuals may not be
model parents, the fact that an individual has a past
criminal record should not in itself keep them from
becoming a parent, or having custody of a child.
The problem with using remote convictions is that they
may not be indicative of the individual's current
fitness. Prior convictions may mislead the court into
terminating fundamental parental rights based upon
distant convictions. For example, a court could use a
criminal record from 20 years ago to demonstrate the
unfitness of a parent when examining a current felony.
This criminal record may not accurately reflect the
person that the parent is today.
In an attempt to address concerns that this provision
could be used improperly, the sponsor's latest amendments
require that the record demonstrate a pattern which
SB 1325 (Scott)
Page 7
indicates the lack of parental fitness. By limiting the
use of criminal records to patterns, remote convictions
that are unrelated to current parental fitness are
unusable. For example, if a parent with a distant
conviction of domestic violence is convicted of felony
bank fraud, the domestic violence conviction could only
be used if it demonstrated a pattern of unfitness. In
that case, one distant conviction is not a pattern,
especially when unrelated to the current felony
conviction.
4. Assisted reproduction
SB 1325 includes several provisions concerning assisted
reproduction, including definition, jurisdiction, venue
and right to bring an action to establish a parent-child
relationship.
a. Definition
Both "assisted reproduction" and "assisted
reproduction agreement" are defined by this bill.
ACAL, sponsor of SB 1325, states that these
definitions are needed to provide a consistent
definition of these terms for both the Family Code and
state courts.
Assisted reproduction would be defined as conception
by any means other than sexual intercourse. While
this definition is broad, it should cover all current
and future forms of assisted reproduction.
The author's proposed amendments define "assisted
reproduction agreement." Those amendments propose to
define the agreement as a written contract that
includes a person who intends to be the legal parent
of a child born through assisted reproduction. That
contract must define the terms of the relationship
between the parties. By requiring the contract to
include the intent to become the legal parent of the
child, the definition ensures that individuals falling
under the assisted reproduction provisions are not
casual donors of reproductive material.
b. Jurisdiction
SB 1325 (Scott)
Page 8
Currently courts deem individuals who have sexual
intercourse in this state to have submitted to court
jurisdiction for purposes of determining child
custody, visitation, and parental rights. By deeming
these individuals to have submitted to court
jurisdiction, existing law allows courts to enter
orders as to the parental rights of those individuals.
Absent jurisdiction, the court could not enter orders
validly binding these individuals.
SB 1325 would add jurisdiction over individuals who
cause conception with the intent to parent by assisted
reproduction in the state. Importantly, this
provision requires the individual to have intent to
parent the conceived child. Absent this provision,
donors of reproductive material which causes
conception would fall under this jurisdiction
provision. For example, an egg or sperm donor that
donates the reproductive material to a public bank
would not fall under this provision. These
individuals donate this material to aid other
individuals and do not intend to legally parent any of
the conceived children.
As with the definition section, the rationale for this
addition of jurisdiction is to update the Family Code
to accommodate cases of assisted reproduction.
c. Venue
As with the addition to jurisdiction, SB 1325 would
modify the venue statute to accommodate assisted
reproduction. Existing venue provisions allow actions
to be brought in counties where the child resides or
is found, a licensed California adoption agency is
found for actions brought by that agency or place of
deceased father's probate proceedings. All of these
venue locations are based on a connection between the
child and the county.
For example, actions by a licensed adoption agency
regarding the child presumably would be brought based
upon the agency's handling of the child's case.
Actions in counties where probate could have occurred
SB 1325 (Scott)
Page 9
for a deceased father are based upon the child's
connection to their deceased father.
This bill would add the county where the child is
born, or expected to be born for actions relating to
an assisted reproduction agreement. Like current
venue provisions, this provision is based upon the
connection between child and the county in which they
were born or are expected to be born. According to
sponsors, the purpose of this provision is to allow
parties to an assisted reproduction agreement to bring
an action establishing parentage before the child is
born, or immediately thereafter.
For example, a married couple may seek the services of
a surrogate to carry their child. Prior to the birth
of this child, current law allows actions to be
brought to determine the parent-child relationship.
As described above, existing venue is based upon the
child already being born. This provision specifically
provides for venue prior to the birth of the child.
Since existing law already allows these actions to be
brought, this provision clarifies in what county the
action may be brought. The prospective adoptive
parents can accordingly bring an action in the county
where the child is expected to be born.
Adding venue provisions may allow actions to be
brought against parties in counties not otherwise
authorized. These provisions must be carefully
considered to ensure that parties are not dragged to
inconvenient locations. In this case, all parties are
likely already present in the county where the child
is to be born. The surrogate mother, potentially
unlikely to travel long distances for court
proceedings late in her pregnancy, has the benefit of
having these proceedings held in the county where she
is expected to give birth.
The only situation where venue might be problematic
arises when actions are brought concerning the
assisted reproduction agreement after the child is
born, when the child is born in an inconvenient
county. Under this situation, parties later could be
forced to litigate this agreement in an inconvenient
SB 1325 (Scott)
Page 10
venue. On balance, however, it may be useful to have
the venue statute specifically allow assisted
reproduction actions to occur where the child was
born. In the case of surrogates, the child is often
handed over to the prospective adoptive parents
immediately after birth. If disagreements do occur
between the parties at this vital juncture, it would
make sense to litigate them in the country of birth,
which would contain all the relevant witnesses and
evidence.
d. Establishment of parent-child relationship
SB 1325 would allow any party to a written assisted
reproduction agreement to bring an action to determine
the existence of a parent-child relationship. As the
definition of assisted reproduction agreement requires
parties to have the intent to be the legal parent,
this would allow these individuals to bring an action
to establish a legal relationship with the child.
Developments in reproductive technology can create
some complicated cases of parental relationships.
For example, a married couple uses a surrogate to have
a child. The wife provides an egg, while a sperm
donor is used to fertilize that egg. The fertilized
egg is then implanted in the surrogate. All three
parties enter into an assisted reproduction agreement.
Prior to the birth of the child, the married couple
divorces and goes their separate ways. Upon birth,
the former husband seeks to gain custody over this
child. Although the child was not the product of his
reproductive material, SB 1325 would give the former
husband the ability to establish a legal parent-child
relationship with that child.
5. Orders entered prior to the birth of the child
Current law allows parties to begin proceedings to
determine the parent-child relationship prior to the
birth of the child. If these proceedings determine that
a parent-child relationship exists, those parents have
specific constitutional parental rights with regards to
the child. SB 1325 would specifically allow a court to
enter orders or judgments on those rights before the
SB 1325 (Scott)
Page 11
birth of a child. These orders would not be effective
until the birth of the child.
The sponsor states that this provision is needed in cases
where the couple enters into an assisted reproduction
agreement with a surrogate mother. The sponsor, ACAL,
contends that hospitals require a court order before
listing parties other than the birth mother and presumed
or alleged father on the birth certificate. Accordingly,
the sponsor's intent is to allow these parents to be
listed on the birth certificate at the hospital without
requesting the court to later issue a corrected birth
certificate.
SB 1325 would allow parties to establish parental rights
immediately upon birth of the child. Once parental
rights have attached, these individuals have
constitutionally protected rights to the care, control,
and custody of the child. While surrogates generally
comply with the assisted reproduction agreement, cases
exist where they do not. In an example of a surrogate
fighting for parental rights to the child born from
another's reproductive material, the California Supreme
Court, in Johnson v. Calvert (1993) 5 Cal.4th 84, 87,
held that a woman whose ovum was implanted in a surrogate
was the natural mother. In that case, the parties
requested genetic testing to determine whether the
surrogate mother was the natural mother of the child,
which she was not. Therefore, in cases of true
surrogacy, entering these orders would not terminate any
parental rights of the surrogate mother as that mother
does not qualify as a natural mother under the Family
Code. In cases where the surrogate mother actually does
give birth to her own child under the mistaken belief
that it is the result of assisted reproduction, these
orders establish parental rights in favor of the
prospective adoptive parents. The birth mother is then
at the disadvantage of challenging the placement of her
own child.
SHOULD COURTS BE REQUIRED TO WAIT UNTIL THE BIRTH OF THE
CHILD BEFORE ENTERING A COURT ORDER REGARDING PARENTAL
RIGHTS CONCERNING THAT CHILD?
6. Consolidation of proceedings
SB 1325 (Scott)
Page 12
Under existing law, separate proceedings must take place
for the termination of parental rights and determination
of whether a presumed father exists. This bill would
consolidate those proceedings in the court where the
proceeding terminating parental rights is occurring. In
cases where that transfer poses a substantial hardship to
the parties, the consolidated action shall be heard in
the court where the paternity action is filed.
For example, an adoption agency might seek to terminate
parental rights to a young child from an abusive home.
In the child's home, the boyfriend of the mother has been
holding the child out as his natural child. Under
existing law, the court must hold two proceedings: one to
determine that the man is the presumed father, and a
second proceeding to terminate that father's parental
rights to the child. This procedure does make some sense
as one has to have established parental rights before
they can be terminated.
SB 1325 would consolidate these two proceedings in the
court terminating parental rights, unless clear and
convincing evidence is presented that transferring the
action poses a substantial hardship. If there is a
showing of such a substantial hardship, the action would
be consolidated in the court deciding whether the
individual is a presumed father. Language of SB 1325
specifically states that "mere inconvenience" does not
constitute a sufficient basis for a claim of substantial
hardship.
Using the above example, the action determining whether
the boyfriend is a presumed father would be consolidated
in the court where parental rights to the child would be
terminated. Problems may arise in cases where the
allegedly presumed father cannot attend the proceeding to
terminate his rights due to distance, work or mere
inconvenience. Since hardship must be shown by clear and
convincing evidence, individuals contesting the
consolidated transfer of the case may have difficulty
meeting their high burden.
In 2001, AB 538 (Cardoza), consolidated similar
proceedings relating to alleged fathers. At that time,
SB 1325 (Scott)
Page 13
proceedings for presumed fathers were not consolidated.
Sponsors are unsure of the rationale for not
consolidating proceedings for both presumed and alleged
fathers.
SHOULD THESE PROCEEDINGS REMAIN SEPARATE TO ENSURE THAT
THE FATHER'S PARENTAL RIGHTS ARE NOT SUMMARILY
ADJUDICATED?
7. Receipt of relinquishment
Current law provides for the relinquishment of a child by
his or her parent or parents to the Department of Social
Services (DSS) or a licensed adoption agency for the
purpose of adoption. The relinquishment must be signed
and properly acknowledged but only after the
relinquishing parent has received counseling and
advisement services from the authorized agency. The
executed relinquishment has no effect until a certified
copy is filed with the DSS. Existing provisions state
that the relinquishment "shall be final within 10
business days after receipt of the filing by the
department." [Fam. Code Section 8700(e).] The intent of
the current language is to allow DSS sufficient time to
process the relinquishment. If DSS fails to process the
relinquishment within 10 days, the relinquishment would
be deemed final.
The sponsor states that current language is ambiguous as
to when the relinquishment is final. Current language
was enacted in 2004 by AB 2674 (Leno). Only one
published California case, In re Michael R., (2006) 137
Cal. App. 4th 126, 137, has cited that section since its
enactment. That case mentioned nothing about its lack of
clarity. Moreover, existing language appears
sufficiently clear: a relinquishment shall be final
within 10 days of filing. The time frame, 10 days, is
specific. The time frame "within 10 days" is
intentionally non-specific as the department's
finalization of the relinquishment depends on current
workloads. The department may take up to 10 days to
finalize the relinquishment, after that time it is deemed
finalized by virtue of law.
SB 1325 proposes to clarify this language by providing
SB 1325 (Scott)
Page 14
that relinquishments would be deemed final 10 days after
receipt by the department, unless the department sends a
written acknowledgment prior to the end of the 10-day
period. If the department sends an acknowledgement
before the end of the 10-day period, the relinquishment
shall be deemed final at that time.
For example, a relinquishment could be sent into DSS on
April 5th. On April 10th, DSS sends a written
acknowledgment of the relinquishment. According to this
bill, the act of sending that acknowledgment makes the
relinquishment final. Unfortunately, the individual may
not receive the written acknowledgement until April 12th
or later, thus leaving the individual to question whether
the relinquishment has become final before the 10-day
period.
Although this may be misleading, the current system
contains the same flaw. Under the current system, the
department may acknowledge the relinquishment at any time
within the 10-day period, thus, making it final. The
proposed change therefore is not substantive, but may
only minimally improve the clarity of the provision. The
sponsor, ACAL, is willing to work to further clarify this
provision.
8. Author's amendments
The author proposes to amend the bill as follows to
address various concerns:
a) On page 3, strike out lines 8 and 9, and insert:
contract that includes a person who intends to be the
legal parent of a child or children born through assisted
reproduction and that defines the terms of the
relationship between the parties to the contract.
b) On page 3, line 12, after "a" insert:
legal
c) On page 5, line 17, strike out "determine the
existence of" and insert:
SB 1325 (Scott)
Page 15
establish
d) On page 5, line 18, after "relationship" insert:
consistent with the intent expressed in that assisted
reproduction agreement.
e) On page 5, line 21, after "birth of the child."
insert:
Such orders or judgments shall not take effect before the
birth of the child.
f) On page 4, strike out lines 4-6, and insert:
(4) In actions relating to an assisted reproduction
agreement, the county in which the child is expected to
be born, or is born.
g) On page 5, line 32, after "felony conviction" insert
"to the extent the criminal record demonstrates a pattern
of behavior substantially related to the welfare of the
child and the parent's ability to parent"
h) On page 6, lines 2-3, strike "substantial hardship to
the prospective adoptive parent" and insert
"impossibility or impracticability"
i) On page 8, line 9, after "relinquishment shall be"
strike "final" and insert "deemed final within 10
business days after receipt of the filing by the
department, unless the department sends written
acknowledgement of receipt of relinquishment prior to the
expiration of the 10 days, at which time the
relinquishment shall be final"
j) On page 8, lines 10-11, strike "when the department
sends written acknowledgment of receipt of the
relinquishment"
k) On page 8, line 13, strike "If the" and lines 14-16.
l) On page 8, line 17, strike "the department."
SB 1325 (Scott)
Page 16
m) On page 9, strike lines 26-40, and on page 10, strike
lines 1-2.
Support: None Known
Opposition: None Known
HISTORY
Source: Academy of California Adoption Lawyers (ACAL)
Related Pending Legislation: SB 1712 (Midgen), would
provide funding to promote the adoption of
hard-to-place teens. (This bill is being heard
before this committee today.)
SB 1758 (Figueroa), would increase
regulations regarding
adoption facilitators. (This bill is being
heard before this
committee today.)
SB 1393 (Florez), would revise adoption
provisions relating to
intercounty adoptions. (This bill is
being heard before this
committee today.)
Prior Legislation: AB 538 (Cardoza), Chapter 353,
Statutes of 2001, consolidated alleged
father proceedings with proceedings
determining their parental rights.
SB 182 (Scott), Chapter 251, Statutes of
2003, revised adoption provisions for legal
guardians.
**************
SB 1325 (Scott)
Page 17