BILL ANALYSIS
SB 1758
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Date of Hearing: June 27, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 1758 (Figueroa) - As Amended: June 21, 2006
SENATE VOTE : 22-13
SUBJECT: Adoption Facilitators
KEY ISSUE : SHOULD REGULATION OF ADOPTION FACILITATORS, WHO
CURRENTLY RECEIVE VERY LITTLE GOVERNMENT OVERSIGHT DESPITE THE
SIGNIFICANT ROLE THEY PLAY IN MANY ADOPTIONS, BE STRENGTHENED?
SYNOPSIS
This bill strengthens regulations of adoption facilitators
including increasing the surety bond they are required to
maintain to $25,000, imposing minimum educational and experience
requirements, requiring registration with the Department of
Social Services (DSS), restricting internet advertisements
displaying minor children and authorizing increased civil
penalties. This bill grows out of an informational hearing held
by the Senate Committee on Business, Professions, and Economic
Development. At the hearing, it was learned that some families
expend tens of thousands of dollars for the adoption of children
that they learned about through an adoption facilitator, only to
find out later are unavailable or otherwise not subject to
adoption.
This bill is supported by, among others, adoption agencies, the
County Welfare Directors Association, and the Family Law Section
of the State Bar. It has no reported opposition.
SUMMARY : Strengthens regulations of adoption facilitators.
Specifically, this bill :
1)States the intent of the Legislature that current regulations
regarding adoption facilitators are not strict enough to
safeguard both birth parents and prospective adoptive parents.
2)Prevents facilitators from using advertising containing
photolistings.
3)Requires DSS to establish and adopt regulations for the
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statewide registration of adoption facilitators. Allows DSS
to adapt procedures used for adoption service providers to
comply with this requirement. Allows DSS to deny inclusion in
the registry to any applicant who has been convicted of any
crime for which DSS may deny a license to an adoption agency.
4)Requires adoption facilitators who are independent of licensed
adoption agencies or adoption attorneys to register with DSS.
Facilitators must submit a disclosure form, acknowledgment
that they have not been found liable of malfeasance in
connection with providing adoption services, proof of required
education and experience, fingerprints for a criminal
background check, bond, business license and identification.
Requires DSS to post a list of complying adoption facilitators
on its web site. Allows DSS to establish by regulation a
filing fee to cover all costs associated with registration.
5)Requires adoption facilitators, and any staff member providing
direct adoption services to complete at least two years of
college courses, with at least half of the units focusing on
social work or a related field and have three years of
specified experience. This educational and experience
requirement may be waived if specified conditions are
satisfied. Creates a category of "trainee" to gain the
required experience while under the supervision of a
registered adoption facilitator.
6)Increases the bond required of facilitators from $10,000 to
$25,000. Requires facilitators to notify DSS of renewal of
the bond, or any change of address.
7)Authorizes suits for injunctive relief and allows collection
of treble damages or $1,000 per violation, whichever is
greater. Authorizes the Attorney General, district attorney
or city attorney to bring an action for equitable relief
against adoption facilitators in the name of the people of
California. Individuals may also bring action for injunctive
relief on behalf of the general public.
8)Requires DSS to make recommendations on the adoption
facilitator registry to the Legislature by January 1, 2008
EXISTING LAW :
1)Defines adoption facilitators as persons or organizations, not
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licensed by the state of California, that advertise for the
purpose of soliciting parties to an adoption, locate children
for adoption or act as an intermediary between parties to an
adoption. (Family Code Section 8623. All further references
are to that Code.)
2)Requires facilitators to obtain a business license and post a
$10,000 bond. (Section 8636.)
3)Authorizes civil actions for damages, rescission or any other
civil remedy by any person aggrieved by an adoption
facilitator. (Section 8638.)
4)Allows prevailing parties to recover reasonable attorneys'
fees and costs for actions to revoke or enforce contracts with
adoption facilitators. (Section 8635.)
5)Prevents adoption facilitators from using misleading
advertising to convey that they are licensed by the State of
California. (Section 8625.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : Couples seeking to adopt have several options,
including using a state licensed adoption agency or adoption
facilitator. Adoption facilitators are not currently licensed
by the state and subject only to a $10,000 bonding requirement.
These facilitators locate children available for adoption and
act as intermediaries in the adoption process, all for a
substantial fee. Current regulations concerning adoption
facilitators were enacted in 1996 and remain in their original
form. In response to consumer complaints, this bill strengthens
regulation of adoption facilitators including increasing the
surety bond they are required to maintain to $25,000, imposing
minimum education and experience requirements, requiring
registration with the DSS, restricting internet advertisements
displaying minor children and authorizing increased civil
penalties.
According to the author, adoption facilitators play a
significant role in the adoption process but receive little
oversight and regulation. Existing requirements of a $10,000
bond and valid business license are insufficient to provide
consumers with adequate protection as "[m]ost facilitators
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charge more than double the bond amount."
Informational Hearing reveals need for further regulation of
adoption facilitators . On February 27, 2006, the Senate
Committee on Business, Professions & Economic Development held a
hearing on adoption facilitators. Testimony at the hearing
focused on the need for further regulation, increased bonds and
consumer protections for families proceeding through adoption
facilitators. At the hearing, it was learned that some families
expend significant sums of money for the adoption of children
that they learned about through an adoption facilitator, only to
learn later are unavailable or otherwise not subject to
adoption. These families face the uncertainty of how to take
action against these adoption facilitators.
Last year, Napa police raided a local adoption facilitator that
purported to offer Kazak, Russian, Vietnamese, Ukrainian and
Guatemalan children. The raid was prompted by reports that the
facilitator had defrauded several families out of thousands of
dollars. Further investigation revealed numerous stories of
families who were shown videos of foreign children, only to
later find out that those children did not exist or were not
available for adoption in that country. Some of these
individuals spent over $30,000 in fees and travel costs to go
see what they thought would be their adopted child. Many
families were either told the child was not available or
presented with alternate children to adopt. Admittedly, not all
families were dissatisfied, and some received children through
this facilitator.
Bill increases bond required of adoption facilitators . As
demonstrated in the Napa case, adoption facilitators usually
have many simultaneous clients that each invest significant sums
of money. Current law requires facilitators to be bonded in the
amount of $10,000, an insufficient amount to satisfy even one
average claim against the facilitator.
This bill raises the bond to $25,000 and requires that the bond
be executed by a corporate surety admitted to do business in the
state. Whenever there is recovery from an existing bond,
facilitators must replenish the bond prior to conducting further
business. These new provisions attempt to ensure that
sufficient funds are available to cover liability for potential
fraud.
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Additionally, facilitators must notify DSS when they renew their
bond, or change their name, address, telephone number or agent
for service of process. These provisions ensure that the DSS
registry contains up-to-date information for consumers
concerning those facilitators. Consumers can then check the
database prior to enlisting the services of an adoption
facilitator, which both deters the use of unregistered
facilitators and warns consumers of facilitators with
insufficient bonds.
Adoption facilitators must meet specified educational and
experience requirements . Aside from protecting consumers,
proposed provisions also focus on protecting those minor
children who are handled by the adoption facilitators. This
bill requires that the adoption facilitator, or any staff member
providing direct adoption services, must complete at least two
years of college courses and have at least three years'
experience. These educational and experience requirements can
be waived upon a specified showing. In addition, the bill
establishes a "trainee" category to allow facilitators to obtain
the proper experience while acting as a trainee under a
registered adoption facilitator. Considering the extensive role
of facilitators and their staff in adoptions, these minimal
educational and experience requirements attempt to ensure that
they have some knowledge of social work and counseling.
Advertising restrictions . According to news reports, families
defrauded by the Napa county facilitator were lured in with
pictures and videos of children that were never available for
adoption. As chronicled in the American RadioWorks series
"Finding Home: Fifty Years of International Adoption," couples
were enticed by pictures of foreign children advertised over the
internet for adoption. One prospective adoptive parent stated
that upon seeing internet pictures of two young Ukrainian girls,
"[w]e fell in love, and when I called [the facilitator] about
these girls, the first thing they told me was 'Some other
parents have expressed interest in those girls and you'd better
get your money in.'"
(http://americanradioworks.publicradio.org/features/adoption/tran
script.html.) The couple mortgaged their house for fees and
traveled to Ukraine only to return empty handed after failing to
locate the girls.
SB 1758 prevents the use of photolistings to advertise minor
children available for adoption. As seen above, this provision
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intends to curb the use of children's images to lure prospective
adoptive parents to adoption facilitators. This also prevents
the perception that certain children are "for sale" on the
internet.
DSS registration, determination of compliance . Under SB 1758,
DSS must adopt a system for registering adoption facilitators.
Adoption facilitators operating independently from a licensed
public or private adoption agency, or adoption attorney would be
required to register.
To ease the burden on DSS of creating such a system, SB 1758
provides that DSS may adopt procedures already used for adoption
service providers. Existing law already requires adoption
service providers to register with DSS and to provide proof of
their requisite experience. As mentioned above, the
requirements for an adoption service provider are similar to
that which would be required under this bill.
SB 1758 requires DSS to post information on its web site listing
compliance of adoption facilitators with registration and bond
requirements. Similar to the State Bar of California's web site
query to check whether an attorney is currently able to practice
law, this would allow consumers to check and see if the adoption
facilitator is currently registered and bonded. As mentioned
above, this encourages use of properly registered adoption
facilitators that have fully complied with bond requirements.
Civil actions . Existing law allows anyone aggrieved by an
adoption facilitator to bring a civil action for damages,
rescission or any other civil or equitable remedy. This bill
specifically adds that injunctive relief is available, although
that relief is likely available under current law. In cases
where actual damages are awarded, this bill would also allow
recovery of treble damages, or $1,000, whichever is greater.
This provision creates a statutory scheme to deter bad conduct.
The underlying goal of these penalties is to discourage would be
adoption facilitators from violating the required regulations.
SB 1758 also authorizes the Attorney General, a district
attorney, or city attorney to bring an action for injunctive
relief, restitution, or other equitable relief against
facilitators. This extended authority allows those law
enforcement officials to investigate and bring action requiring
the cessation of business in violation of the proposed
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regulations. To provide additional enforcement of these
regulations, any individual may bring an action for injunctive
relief on behalf of the general public to enforce these
regulations. These actions must be based upon information or
belief that an adoption facilitator has violated the
regulations. Only actions for injunctive relief are allowed,
thus preventing individuals who have not suffered any detriment
from recovering financially.
Current law allows parties to recover reasonable attorneys' fees
and costs for actions to revoke or enforce contracts with
adoption facilitators. SB 1758 expands that recovery to include
any civil action against adoption facilitators for violation of
the proposed requirements.
Report to the Legislature . This bill also requires DSS to
report to the Legislature, by January 1, 2008, on
recommendations for the adoption facilitator registry. These
recommendations should help guide the Legislature on the
effectiveness of the program and whether changes are necessary
to improve the registry.
By increasing the bond, imposing education, experience and
registration requirements and additional civil penalties, SB
1758 increases consumer protection and increases the likelihood
that families can recover their financial expenditures when
there has been malfeasance.
Prior Legislation : SB 2035 (Killea), Chapter 1135, Statutes of
1996, enacted current regulations concerning adoption
facilitators including the $10,000 bond. SB 1674 (Scott), 2002,
would have amended existing law concerning advertisement and
disclosure by facilitators. (Held in the Senate Judiciary
Committee.) AB 550 (Zettel), 2001 would have prohibited a court
from making an order of adoption before home-study performed.
(Held in the Senate Judiciary Committee.)
SUPPORT / OPPOSITION :
Support
California Alliance of Child and Family Services
California Association of Adoption Agencies
County Welfare Directors Association of California
Family Law Section of the State Bar of California
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National Association of Social Workers
Pact
Two individuals
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334