BILL NUMBER: SB 1758 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 7, 2006
AMENDED IN ASSEMBLY JUNE 21, 2006
AMENDED IN SENATE MAY 26, 2006
AMENDED IN SENATE MAY 2, 2006
AMENDED IN SENATE APRIL 20, 2006
AMENDED IN SENATE APRIL 6, 2006
AMENDED IN SENATE MARCH 28, 2006
INTRODUCED BY Senator Figueroa
FEBRUARY 24, 2006
An act to amend Sections 8625, 8636, and 8638 of, to repeal
Section 8635 of, and to add Section 8632.5 to, the Family Code,
relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
SB 1758, as amended, Figueroa Adoption facilitators.
(1) Existing law provides a comprehensive scheme regarding
adoption regulation, and also provides for the regulation of adoption
facilitators, as defined. Existing law requires a person, prior to
engaging in the business of or acting in the capacity of an adoption
facilitator, to obtain a business license in the appropriate
jurisdiction and be bonded in the amount of $10,000.
This bill would instead require a person to post a bond in the
amount of $25,000, executed by a corporate surety admitted to do
business in this state, with the State Department of Social Services.
The bill would also require a person, whenever there is recovery
from a bond, to replenish the bond or file a new bond if the former
bond cannot be replenished before that person may conduct further
business as an adoption facilitator. The bill would require the
adoption facilitator to notify the department in writing within 30
days when a surety bond is renewed, and provide the department with
changes in personal information, as specified.
The bill would also require the State Department of Social
Services to establish and adopt regulations for a statewide
registration process for adoption facilitators and to establish and
adopt regulations to ensure that adoption facilitators comply with
the requirements of posting a bond. The bill would authorize the
department to adapt the process it uses to register adoption service
providers in order to provide a similar registration process for
adoption facilitators. The bill would authorize the department to
deny inclusion in the registry to an applicant who has been convicted
of a crime for which the department may deny a license to an
adoption agency. The bill would also require an adoption facilitator,
when posting a bond, to file with the department a disclosure form
containing specified information about the person's educational
background and identity, including fingerprint cards. Certain of
these requirements would extend to staff members who provide direct
adoption services. The bill would authorize the department to submit
fingerprint images to the Department of Justice in order to obtain
criminal offender information and to impose fees for covering the
costs of processing fingerprint cards and recovering all other costs
associated with the bill's requirements. The bill would require the
Department of Justice to forward the request for information to the
Federal Bureau of Investigation, to review the information received
in response, and to disseminate that information to the State
Department of Social Services.
The bill would also require the State Department of Social
Services to post on its Internet Web site information that shows if
an adoption facilitator is in compliance with the registration and
bond requirements, as specified. The bill would also authorize the
department to create an Adoption Facilitator Account for the deposit
of fees received and would require the department to make
recommendations for the registry program to the Legislature on or
before January 1, 2008.
(2) Existing law prohibits an adoption facilitator from misleading
a person into believing that the adoption facilitator is a licensed
adoption agency or representing to a person that he or she is able to
provide services for which the facilitator is not properly licensed.
This bill would also prohibit an adoption facilitator from making
use of photolisting to advertise minor children for placement in
adoption.
(3) Existing law authorizes a person aggrieved by a violation of
the provisions regarding adoption facilitators to bring a civil
action for damages, rescission, or any other civil or equitable
remedy.
This bill would revise that provision to specifically authorize a
person to bring a civil action for injunctive relief. The bill would
also provide that if the court finds a person has violated those
provisions, it shall award actual damages plus an amount equal to
treble the amount of the actual damages or $1,000 per violation,
whichever is greater. The bill would also authorize the Attorney
General, a district attorney, or a city attorney to bring a civil
action for injunctive relief, restitution, or other equitable relief
against the adoption facilitator in the name of the people of the
State of California. The bill would further authorize any other
person claiming a violation of those provisions to bring a civil
action for injunctive relief on behalf of the general public.
(4) Existing law also authorizes a party, in any action to revoke
or enforce a contract with an adoption facilitator, to recover
reasonable attorneys' fees and costs.
This bill would expand that provision to apply to all civil
actions regarding adoption facilitators. The bill would also set
forth related findings and declarations.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The Legislature hereby finds and declares the
following:
(1) The sharp rise in the number of adoptions, and a significant
increase in adoption fees, has created an expanding industry for
adoption facilitators in California.
(2) Adoption facilitators are not licensed as adoption agencies,
but are adoption intermediaries who are required to hold a business
license, be bonded in the amount of ten thousand dollars ($10,000),
and are regulated by California law in the areas of disclosure and
advertising.
(3) Recent accounts of fraudulent practices by adoption
facilitators demonstrate that current regulations are not strict or
extensive enough to safeguard birth parents and prospective adoptive
parents from fraud.
(b) It is the intent of the Legislature to enact legislation that
ensures the protection of birth parents and prospective adoptive
parents in dealing with adoption facilitators.
SEC. 2. Section 8625 of the Family Code is amended to read:
8625. An adoption facilitator shall not:
(a) Mislead any person into believing, or imply by any document,
including any form of advertising or by oral communications, that the
adoption facilitator is a licensed adoption agency.
(b) Represent to any person that he or she is able to provide
services for which the adoption facilitator is not properly licensed.
(c) Make use of photolisting to advertise minor children for
placement in adoption.
SEC. 3. Section 8632.5 is added to the Family Code, to read:
8632.5. (a) The department shall establish and adopt regulations
for a statewide registration process for adoption facilitators. The
department shall also establish and adopt regulations to ensure that
adoption facilitators comply with the requirements of posting a bond,
in accordance with this chapter.
(b) The department may adapt the process it uses to register
adoption service providers in order to provide a similar registration
process for adoption facilitators. The process used by the
department shall include a procedure for determining the status of
bond compliance by adoption facilitators, a means for accepting or
denying organizations seeking inclusion in the adoption facilitator
registry, and an appeals process for those entities denied inclusion
in the adoption facilitator registry. The department may deny
inclusion in the registry for adoption facilitators to an applicant
who has been convicted of any crime for which the department may deny
a license to an adoption agency.
(c) Upon the establishment by the department of a registration
process, all adoption facilitators that operate independently from a
licensed public or private adoption agency or an adoption attorney in
this state shall be required to register with the department.
(d) An adoption facilitator, when posting a bond, shall also file
with the department a disclosure form containing the adoption
facilitator's name, date of birth, residence address, business
address, residence telephone number, business telephone number, and
the number of adoptions facilitated for the previous year. Along with
the disclosure form, the adoption facilitator shall provide all of
the following information to the department:
(1) Proof that the facilitator and any member of the staff who
provides direct adoption services has completed two years of college
courses, with at least half of the units and hours focusing on social
work or a related field.
(2) Proof that the facilitator and any member of staff who
provides direct adoption services has a minimum of three years of
experience employed by a public or private adoption agency, a
registered adoption facilitator, or an adoption attorney who assists
in bringing adopting persons and placing parents together for the
purpose of adoption placement.
(A) An adoption facilitator and any member of the staff subject to
this paragraph may waive the educational and experience requirements
by satisfying all of the following requirements:
(i) He or she has over five years of work experience providing
direct adoption services.
(ii) He or she has not been found liable of malfeasance in
connection with providing adoption services.
(iii) He or she provides three separate letters of support
attesting to his or her ethics and work providing direct adoption
services from any of the following:
(I) A licensed public or private adoption agency.
(II) A member of the Academy of California Adoption Lawyers.
(III) The State Department of Social Services.
(B) An adoption facilitator who is registered with the department
may also register staff members under the designation of "trainee." A
trainee may provide direct adoption services without meeting the
requirements of this paragraph. Any trainee registered with the
department shall be directly supervised by an individual who meets
all registration requirements.
(3) A valid business license.
(4) A valid, current, government-issued identification to
determine the adoption facilitator's identity, such as a California
driver's license, identification card, passport, or other form of
identification that is acceptable to the department.
(5) Fingerprint images for a background check to be used by the
department for the purposes described in this section.
(e) The State Department of Social Services may submit fingerprint
images of adoption facilitators to the Department of Justice for the
purpose of obtaining criminal offender record information regarding
state and federal level convictions and arrests, including arrests
for which the Department of Justice establishes that the person is
free on bail or on his or her recognizance pending trial or appeal.
(1) The Department of Justice shall forward to the Federal Bureau
of Investigation requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and compile and disseminate a response to the
department.
(2) The Department of Justice shall provide a response to the
department pursuant to subdivision (n) of Section 11105 of the Penal
Code.
(3) The department shall request from the Department of Justice
subsequent arrest notification service, as provided pursuant to
Section 11105.2 of the Penal Code.
(4) The Department of Justice shall charge a fee sufficient to
cover the cost of processing the request described in this section.
(f) The department may impose a fee upon applicants for each set
of classifiable fingerprint cards that it processes pursuant to
paragraph (5) of subdivision (d).
(g) The department shall post on its Internet Web site information
that shows if an adoption facilitator is in compliance with the
registration and bond requirements of this chapter. The department
shall ensure that the information is current and shall update the
information at least once every 30 days. However, pursuant to the
provisions of Section 11142 of the Penal Code, neither the department
nor any employee of the department shall reveal the state summary
criminal history record or any information from the record to a
member of the public.
(h) The department shall develop the disclosure form required
pursuant to subdivision (d) and shall make it available to any
adoption facilitator posting a bond.
(i) The department may charge adoption facilitators an annual
filing fee to recover all costs associated with the requirements of
this section and that fee shall be set by regulation.
(j) The department may create an Adoption Facilitator Account for
deposit of fees received from registrants.
(k) On or before January 1, 2008, the department shall make
recommendations for the registry program to the California
Legislature , including a recommendation on how to
implement a department program to accept and compile complaints
against registered adoption facilitators and to provide public access
to those complaints, by specific facilitator, through the department'
s Internet Web site .
SEC. 4. Section 8635 of the Family Code is repealed.
SEC. 5. Section 8636 of the Family Code is amended to read:
8636. (a) Prior to engaging in the business of, or acting in the
capacity of, an adoption facilitator, any person shall (1) obtain a
business license in the appropriate jurisdiction, and (2) post a bond
in the amount of twenty-five thousand dollars ($25,000), executed by
a corporate surety admitted to do business in this state, with the
department in accordance with Section 8632.5.
(b) The surety bond required by subdivision (a) shall be in favor
of, and payable to, the people of the State of California and shall
be for the benefit of any person damaged by fraud, misstatement,
misrepresentation, unlawful act or omission, or failure to provide
the services of the adoption facilitator, or the agents,
representatives, or employees of the adoption facilitator, while
acting within the scope of that employment or agency.
(c) Whenever there is a recovery from a bond required by
subdivision (a), the person shall replenish the bond or file a new
bond if the former bond cannot be replenished in accordance with
subdivision (a) before that person may conduct further business as an
adoption facilitator.
(d) An adoption facilitator shall notify the department in writing
within 30 days when a surety bond required by this section is
renewed, and of any change of name, address, telephone number, or
agent for service of process.
SEC. 6. Section 8638 of the Family Code is amended to read:
8638. (a) Any person aggrieved by any violation of this chapter
may bring a civil action for damages, rescission, injunctive relief,
or any other civil or equitable remedy.
(b) If the court finds that a person has violated this chapter, it
shall award actual damages, plus an amount equal to treble the
amount of the actual damages or one thousand dollars ($1,000) per
violation, whichever is greater.
(c) In any civil action under this chapter, a prevailing party may
recover reasonable attorney's fees and costs.
(d) The Attorney General, a district attorney, or a city attorney
may bring a civil action for injunctive relief, restitution, or other
equitable relief against the adoption facilitator in the name of the
people of the State of California.
(e) Any other person who, based upon information or belief, claims
a violation of this chapter has been committed may bring a civil
action for injunctive relief on behalf of the general public.
SEC. 7. The repeal of Section 8635 of the Family Code by this act
is not retroactive and does not apply to actions that are pending
before January 1, 2007.