BILL ANALYSIS
SB 1758
Page 1
SENATE THIRD READING
SB 1758 (Figueroa)
As Amended August 7, 2006
Majority vote
SENATE VOTE :22-13
JUDICIARY 7-2 APPROPRIATIONS 16-2
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|Ayes:|Jones, Berg, Laird, |Ayes:|Chu, Sharon Runner, Bass, |
| |Levine, Lieber, Monta?ez, | |Berg, Calderon, De La |
| |Wyland | |Torre, Emmerson, |
| | | |Karnette, Klehs, Leno, |
| | | |Nakanishi, Nation, Laird, |
| | | |Ridley-Thomas, Saldana, |
| | | |Yee |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Haynes, Leslie |Nays:|Haynes, Walters |
| | | | |
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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 the Department of Social Services (DSS) to establish
and adopt regulations for the 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
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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 (AG), 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,
including a recommendation on how best to provide complaint
information regarding adoption facilitators to the public.
EXISTING LAW :
1)Defines "adoption facilitators" as persons or organizations,
not 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.
2)Requires facilitators to obtain a business license and post a
$10,000 bond.
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3)Authorizes civil actions for damages, rescission or any other
civil remedy by any person aggrieved by an adoption
facilitator.
4)Allows prevailing parties to recover reasonable attorneys'
fees and costs for actions to revoke or enforce contracts with
adoption facilitators.
5)Prevents adoption facilitators from using misleading
advertising to convey that they are licensed by the State of
California.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, implementing this bill would likely cost
approximately $150,000 in up-front costs and an on-going cost of
$75,000 per year. According to information provided by the
author, there are currently 50 adoption facilitators in
California. In order to offset the costs of this bill, each
facilitator would need to be charged an up-front licensing fee
of $3,000 and annual renewal fee of $1,500.
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.
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
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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.
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.
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.
This bill prevents the use of photolistings to advertise minor
children available for adoption. This provision 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.
Under this bill, 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, this bill 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
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requisite experience.
This bill also authorizes the AG, 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 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.
By increasing the bond, imposing education, experience and
registration requirements and additional civil penalties, this
bill increases consumer protection and increases the likelihood
that families can recover their financial expenditures when
there has been malfeasance.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0016431