BILL ANALYSIS
SB 1325
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Date of Hearing: June 20, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1325 (Scott) - As Amended: June 15, 2006
PROPOSED CONSENT
SENATE VOTE : 37-0
SUBJECT : ADOPTION
KEY ISSUE : SHOULD VARIOUS NON-CONTROVERSIAL CHANGES BE MADE TO
CURRENT LAW, RELATING TO ADOPTION, IN ORDER TO EXPEDITE THE
ADOPTION PROCESS?
SYNOPSIS
This non-controversial bill revises numerous aspects of adoption
law including those relating to assisted reproduction, felony
convictions of parents, appearance by prospective adoptive
parents and presumed father proceedings. According to the
author, these changes are needed to expedite the adoption
process. The sponsor, the Academy of California Adoption
Lawyers (ACAL), notes that this bill will clean up, clarify and
revise various family code provisions relating to adoption.
SUMMARY : Revises numerous aspects of adoption law including
those relating to assisted reproduction, felony convictions of
parents, appearance by prospective adoptive parents and presumed
father proceedings. Specifically, this bill :
1)Defines "assisted reproduction" as conception by any means
other than sexual intercourse, and "assisted reproduction
agreement" as a written contract that includes a person who
intends to be the legal parent of the child born through
assisted reproduction and that defines the terms of the
relationship between the parties to the contract. Allows
parties to assisted reproduction agreements to bring actions
to establish legal parenthood consistent with intent expressed
in that agreement.
2)Stipulates that California courts have jurisdiction over any
person who causes conception via assisted reproduction with
the intent to become a legal parent.
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3)Consolidates proceedings to determine whether a father is a
presumed father and to declare the child free from parental
custody and control.
4)Allows a court to enter an order before the birth of the child
establishing a parent-child relationship. This order is not
effective until the birth of the child.
5)Allows a court, when considering the termination of the
parent-child relationship when a parent is convicted of a
felony, to consider the pattern of a parent's criminal record
prior to the felony conviction to the extent that the criminal
record demonstrates a pattern of behavior substantially
related to the welfare of the child or the parent's ability to
exercise custody and control regarding the child.
6)Allows courts to waive the personal appearance of prospective
adoptive parents who are unable to make an appearance due to
impossibility or impracticability.
7)Stipulates that, when either birth parent relinquishes their
child to the Department of Social Services (DSS) or licensed
adoption agency, relinquishments are deemed final 10 business
days after receipt of the filing by DSS, unless DSS sends
written acknowledgment of receipt of the relinquishment prior
to the expiration of that 10-day period or a longer period of
time is necessary due to a pending court action or some other
cause beyond control of DSS.
EXISTING LAW :
1)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. (Family Code section 7620.)
2)Provides for separate proceedings to determine whether a
father is a presumed father and to declare the child free from
parental custody and control. (Family Code sections 7630;
7820 et seq.)
3)Allows actions to establish a parent-child relationship before
the birth of the child. (Family Code section 7633.)
4)Allows termination of the parent-child relationship when the
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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.
(Family Code section 7825.)
5)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. (Family
Code sections 8612, 8613.)
6)Allows either birth parent to relinquish their child to DSS or
licensed adoption agency. Relinquishments are final within 10
days after DSS receives a certified copy of the relinquishment
form unless a longer period of time is necessary due to a
pending court action or some other cause beyond the control of
DSS. (Family Code section 8700.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : This non-controversial bill revises numerous aspects
of adoption law including those relating to assisted
reproduction, felony convictions of parents, appearance by
prospective adoptive parents and presumed father proceedings.
According to the author, these changes are needed to expedite
the adoption process. The sponsor, the Academy of California
Adoption Lawyers (ACAL), contends that this bill will clean up,
clarify and revise various family code provisions relating to
adoption.
Excusing Appearance by Prospective Adoptive Parents . This bill
allows a prospective adoptive parent to not appear before the
court, for the hearing granting a final order of adoption
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 to a temporary incapacitation, such as a
severe car accident. The sponsor reiterates that this is a very
limited exception, with an extremely high standard. According
to the sponsor, in most cases, parents will attend these
hearings.
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Consideration of Parental Criminal Records . Current law allows
for termination of parental rights where a parent is convicted
of a felony and the facts underlying that crime prove the
unfitness of the parent to have future custody or control of the
child. This bill specifically allows the court to consider the
pattern of a parent's entire criminal record, including
misdemeanors, in that determination to the extent that the
record demonstrates a pattern evidencing parental unfitness.
This provision seeks to codify 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.)
Assisted Reproduction . This bill modifies definitions and
jurisdictional requirements in order to update the Family Code
to accommodate cases of assisted reproduction. ACAL states that
these definitions are needed to provide a consistent definition
of these terms for both the Family Code and state courts. This
bill allows a party to a written assisted reproduction agreement
to bring an action to determine the existence of a parent-child
relationship. This allows parties who intend to become legal
parents to bring an action to establish a legal relationship
with the child.
This bill establishes California court 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.
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. This
bill specifically allows a court to enter orders or judgments on
those rights before the 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
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mother. 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 the need later to
request the court to issue a corrected birth certificate.
Consolidation of Proceedings . Under current law, separate
proceedings must take place for the determination of whether a
presumed father exists and termination of parental rights. This
bill consolidates 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. This bill consolidates 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 that
consolidating these actions in the court where the action for
terminating the parental rights was filed presents such a
substantial hardship, the action would be consolidated in the
court deciding whether the individual is a presumed father.
This bill states that "mere inconvenience" does not constitute a
sufficient basis for a claim of substantial hardship.
Receipt of Relinquishment . Current law provides for the
relinquishment of a child by his or her parent or parents to DSS
or a licensed adoption agency for the purpose of adoption.
Current law states that the relinquishment "shall be final
within 10 business days after receipt of the filing by the
department unless a longer period of time is necessary due to a
pending court action or some other cause beyond the control of
DSS." (Family Code section 8700(e).) This bill provides that
relinquishments are deemed final 10 business days after receipt
of the filing by DSS, unless DSS sends written acknowledgment of
receipt of the relinquishment prior to the expiration of that
10-day period or a longer period of time is necessary due to a
pending court action or some other cause beyond control of DSS.
The sponsor states that current law is ambiguous as to when the
relinquishment is final.
REGISTERED SUPPORT / OPPOSITION :
Support
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Academy of California Adoption Lawyers (sponsor)
Opposition
None on file.
Analysis Prepared by : Manuel Valencia / JUD. / (916) 319-2334