BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 1393 S
Senator Florez B
As Amended April 24, 2006
Hearing Date: April 25, 2006 1
Family Code 3
BCP:cjt 9
3
SUBJECT
Intercountry Adoptions
DESCRIPTION
This bill would create a streamlined readoption process for
state residents who finalize an adoption in a foreign
country whose adoption standards meet or exceed those of
California.
BACKGROUND
More and more individuals are adopting children from
outside of the United States. Individuals wishing to adopt
a child from a foreign adoption agency must first complete
an "Application for Advance Processing of an Orphan
Petition," to be filed with the U.S. Citizenship and
Immigration Services (USCIS), under the Department of
Homeland Security. Once the petition is approved, the
individual must still receive approval for any foreign
child that becomes available for adoption. As with
adoption within this country, international adoption can be
both costly and time consuming.
According to the National Adoption Information
Clearinghouse, 18,477 foreign born children were adopted in
the United States in 2000. Current federal laws and
international treaties govern much of this adoption. For
those adoptions which are finalized in other countries,
California provides a special procedure by which these
(more)
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children can be "readopted" within the state. These
provisions include various safeguards to ensure the safety
of the adoptive home.
This bill would streamline readoption in cases where the
adoption was finalized in a foreign country whose adoption
standards meet or exceed those of California, as certified
by the Department of Social Services (DSS). The author's
recent amendments attempt to ensure that these streamlined
procedures do not create a loophole in adoption laws.
CHANGES TO EXISTING LAW
1. Existing law requires any California resident who
adopts a child through intercountry adoption that is
finalized in a foreign country to readopt the child in
California if it is required by the Department of
Homeland Security. When readoption is not required by the
Department of Homeland Security, a California resident
may readopt the child at their discretion. [Fam. Code
8919.]
Existing law requires readoption to include a
postplacement in-home visit, filing of a standard
adoption petition, the intercountry adoption report,
accounting report, and final adoption order. [Fam. Code
8919.]
Existing law prevents a court from granting a readoption
order unless the court receives a report from an adoption
agency authorized to provide intercountry adoption
services. [Fam. Code 8919.]
This bill would create a streamlined readoption process
for both required and discretionary readoptions. The
streamlined process would be available when a California
resident finalizes an adoption in a foreign country whose
adoption standards meets or exceeds those of California,
as certified by the Department of Social Services (DSS).
The process shall include one postplacement in-home
visit, and a final adoption order.
This bill would require a court to grant a readoption
petition if the adoption was finalized in accordance with
the laws of the foreign country, and the resident has
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submitted both a decree evidencing that finalization and
the child's birth certificate and visa.
2. Existing law requires the State Registrar to create a
new birth certificate upon receipt of a report of
adoption from any court within this country.
This bill would add that the State Registrar must create
a new birth certificate upon receipt of readoption order
issued for an intercountry adoption.
COMMENT
1. Author's April 24, 2006 amendments
The author's April 24, 2006 amendments to SB 1393 insert
revisions into Family Code Section 8919, which would
create a streamlined process for adopting children whose
intercountry adoptions were finalized in a foreign
country whose adoption standards meet or exceed those of
California, as certified by the Department of Social
Services.
2. Stated need for the bill
According to the author, this bill is intended to
"streamline the Readoption Law in California [for]
children adopted in a foreign country and make the policy
less cumbersome." The author stresses that the current
adoption process in California is "weighty and
adversarial, at times." This bill is described by the
author as "modest legislation that will successfully help
connect families and children in a simplified fashion."
3. Requiring a court to grant petitions for readoption
When an adoption is finalized in accordance with the laws
of a foreign country whose adoption standards meet or
exceed that of the State of California, the amended
language states that a petition to readopt shall be
granted by the court upon filing of the decree evidencing
the finality of adoption, and the child's birth
certificate and visa. By stating that the court shall
grant the petition, the language removes court discretion
to deny the petition. The rationale behind requiring a
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court to grant this petition is that the individual
already went through an equivalent or more stringent
adoption process in the foreign country. Unfortunately,
this provision removes a court's discretion to deny the
petition in cases where they have questions about the
prospective home environment.
For example, a prospective adoptive parent could arrange
for an overseas adoption through a foreign adoption
agency. The adoption is finalized overseas according to
the laws of that country. Upon examining the required
adoption process for that country, DSS previously
certified that the adoption standards meet or exceed that
of California. In that country, the prospective parent
was thoroughly interviewed, investigated as required by
California law. Upon returning to California with the
child, the parent petitions the court for readoption,
provides a copy of the final order finalizing the
adoption in the foreign country, the child's birth
certificate and visa. Due to the stringent adoption laws
in that country, the court must grant the petition to
readopt the minor child in California. Unfortunately, if
the court has concerns over parental unfitness, the court
has no discretion to deny that readoption petition. Once
a child is formally adopted, the now adoptive parent
gains fundamental constitutional rights over the care,
control and custody of that child.
Whenever a court is required to grant an adoption
petition without existing safeguards, concerns arise as
to the possibility of abuse of the provision. An extreme
example of this abuse would be human trafficking, which
could deliver young children into "adoptive homes" where
their adoptive parents enlist them into slavery. Once a
parent is granted readoption of the child, they have full
constitutional rights to the custody, care and control of
that child. Although this version of the bill attempts
to address trafficking concerns by requiring that the
foreign country's adoption standards meet or exceed those
of California, the court is still required to grant these
readoption petitions.
SHOULD NOT THE BILL ALLOW BUT NOT REQUIRE THE COURT TO
GRANT THE READOPTION PETITION?
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4. Streamlined procedure
As discussed above, the streamlined procedure described
by this bill would apply only in cases where the adoption
was finalized in a country whose adoption standards meet
or exceed those of California. Once this process is
triggered, the standard requirements of filing the
intercountry adoption report, accounting report and
adoption agency are not applicable. These readoption
petitions would require only filing of the foreign decree
evidencing the adoption, the child's birth certificate
and visa. These readoption orders would require only one
postplacement in-home visit, as opposed to a number that
the court believes sufficient. (See Comment 5 for
discussion on postplacement visits).
All of the items omitted from the proposed procedure are
there to provide the court with information on the
adoption. The most important of these omitted provisions
is the requirement of a report from an adoption agency
authorized to provide intercountry adoption services.
Existing Family Code Section 8900 requires intercountry
adoption services to be provided solely by licensed
private adoption agencies. Thus, requiring a report by a
licensed agency authorized to perform these adoptions
ensures that the parties proceeded through a licensed
agency.
As amended, this bill would allow parties to adopt
directly from a foreign country, without the services of
a licensed and authorized intercountry adoption agency.
Prospective adoptive parents could completely bypass
California licensed adoption agencies in lieu of other
methods of receiving children. As mentioned in Comment
3, the bypassing of adoption regulations raises concerns
about the encouragement of human trafficking. Although
this bill does require those adoptions to go through the
equivalent of the California process, this appears to be
a potential loophole.
SHOULD NOT ALL APPLICANTS FOR READOPTION BE REQUIRED TO
SUBMIT A REPORT FROM AN ADOPTION AGENCY AUTHORIZED TO
PROVIDE INTERCOUNTRY ADOPTIONS?
5. Requirement of one postplacement in-home visit
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SB 1393's streamlined readoption procedure would allow a
court to require only one postplacement visit. While
many of those writing in support of this bill complain as
to the number and frequency of these visits, they serve
an important role both to monitor the child and to comply
with international agency requirements.
Foreign governments such as China specifically require at
least one postplacement visit. For example, China's
Center of Adoption Affairs requires the first
postplacement report to be done six months after the date
of adoption in China. These postplacement visits
generally must be conducted by a licensed social worker
or agency caseworker, both trained to assess the child's
bonding, placement and attachment. Additionally, the
report generated must include statements by a medical
professional as to the health of the child.
An earlier version of this bill would have removed the
requirement for a postplacement adoption visit in cases
where readoption is not mandatory. Upon concerns of
committee staff as to the possibility for abuse of the
system originally proposed in this bill, such as human
trafficking, the author amended the bill in an attempt to
close this loophole by allowing the court to require one
visit.
6. Birth certificates
Existing law allows the State Registrar to issue a new
birth certificate upon receipt of a court record of
adoption. This bill would allow issuance of a new birth
certificate upon receipt of a readoption order by a
California court.
Under existing law, readoption orders are standard
adoption orders under Family Code Section 8912. SB 1393
removes the requirement to file an adoption petition
under that section and would require orders for
readoption to be actual readoption orders instead of
adoption orders. Since orders issued under this bill
would be readoption orders, those orders must
specifically be added to the birth certificate statue.
Thus, the proposed addition of
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readoption orders is not a substantive change to that
section.
7. DSS certification
This bill proposes to require DSS to certify countries
whose adoption process standards meet or exceed those of
California. California's adoption law is complex,
requiring extensive investigation, fingerprinting and
background checks prior to the grant of a petition for
adoption. Although the idea of an equivalent system is
appealing, it seems questionable that a foreign country
could provide these same extensive background checks for
applicants.
For example, how is a foreign country's system to check
an individual's criminal history in the same way as the
California process. Foreign adoption agencies would be
unlikely to have access to our state's criminal
databases, including fingerprint records. Accordingly,
even foreign governments with the most stringent adoption
regulations may never even be able to be certified by
DSS.
7. Switch from Immigration and Naturalization Service
(INS) to U.S. Citizenship
and Immigration Services (USCIS)
Existing law requires California residents to readopt
children adopted in a foreign country if that readoption
is required by the INS. As of March 1, 2003, most INS
functions have been transferred to the Department of
Homeland Security. The former INS became the U.S.
Citizenship and Immigration Services, a subdivision of
the department.
Accordingly, this bill would update Family Code Section
8919 to require readoption when required by the
Department of Homeland Security. This shift is not a
substantive change.
Support: Numerous individuals
Opposition: None Known
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HISTORY
Source: Author
Related Pending Legislation: SB 1758 (Figueroa), would
further regulation adoption
facilitators. (This bill is set to
be heard in this committee today.)
SB 1712 (Migden), would create a
program to aid adoption of "hard to
place" children aged 11-18. (This
bill is set to be heard in this
committee today.)
SB 1325 (Scott), would revise and
recast various provisions relating to
adoption. (This bill is set to be
heard in this committee today.)
Prior Legislation: AB 538 (Cardoza, CH 353 of Stats. of
2001), allowed certain
children adopted through foreign country
adoption to receive
a California birth certificate.
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