BILL ANALYSIS
AB 428
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Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 428 (Fletcher) - As Amended: March 31, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : ADOPTION: CRIMINAL HISTORY RECORDS
KEY ISSUE : SHOULD INDIVIDUALS WHO WISH TO ADOPT MINOR CHILDREN
FROM FOREIGN COUNTRIES HAVE AN IMPROVED PROCESS BY WHICH TO
PROVIDE STATE CRIMINAL RECORDS NEEDED TO COMPLETE THE ADOPTION?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill is sponsored by the Attorney General
to improve the authority and process by which individuals may
seek the release of criminal history information about them when
needed to complete their adoption of a child who is a citizen of
a foreign country.
SUMMARY : Authorizes specified releases of state summary
criminal information regarding an individual. Specifically,
this bill would add any foreign government to the list of
entities to which the Attorney General is authorized to provide
the described information, if that information is needed in
conjunction with an individual's application to adopt a minor
child who is a citizen of that foreign nation.
EXISTING LAW requires the Department of Justice to maintain
state summary criminal history information, as defined, and
authorizes the Attorney General to furnish state summary
criminal history information and, when specifically authorized,
federal level criminal history information upon a showing of a
compelling need, to various entities for a variety of purposes.
(Penal Code section 11105.)
COMMENTS : In support of the bill the author states that the
Department of Justice (DOJ) is the statutorily mandated
repository for criminal history records and DOJ is responsible
for providing state summary criminal history information to
various specified entities for specified purposes.
AB 428
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However, the DOJ does not have the explicit statutory authority
to search for or release this information to individuals or
foreign governments to aid the determination of a current or
previous California resident's suitability to adopt a minor
foreign national. The author states that many foreign
governments require a prospective adoptive parent who is an
expatriate or resident Californian, to produce evidence of their
California criminal history. However there is no explicit
authority for the DOJ to do so, although the department may do
so now pursuant to a broad interpretation of Penal Code section
11105 (c)(9), which permits the DOJ to furnish state summary
criminal information to any individual who is the subject of the
record requested if needed in conjunction with an application to
enter the United States or any foreign nation. According to the
author and sponsor this authority is not entirely satisfactory
because it does not specifically state that the information can
be used for the purpose of determining an individual's
suitability to adopt a minor foreign national. Additionally,
most foreign governments require a certification of authenticity
on a criminal record check. This certification requires a
different format from all other applicant background checks and
must then be forwarded to the California Secretary of State for
authentication. Because there is no explicit authority to
respond to background checks for foreign adoption purposes, the
applicant must indicate the background check is for
VISA/Immigration purposes, and DOJ often cannot identify it as
one which needs the unique format for foreign adoptions. This
leads to frustration on the part of the applicant who must get a
proper response in order to complete the adoption process.
Finally, supporters of the bill note, the very limited criminal
history information released for VISA/Immigration purposes is
inconsistent with the dissemination criteria utilized by the DOJ
when responding to California licensed adoption agencies,
independent adoption agencies and/or private adoption agencies.
All other background checks for adoption purposes include the
prospective parent's full criminal history, as specified in the
California Family Code. As such, clear, state level criminal
history search authority for foreign adoptions is needed in
statute, supporters argue, not only in order to reverse
statutory silence, but also to establish consistency among
similar request applicant types.
AB 428 would likewise authorize individuals to submit
fingerprint images and related data to the DOJ to obtain state
summary criminal information for the purpose of attempting to
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adopt a minor child in a foreign nation.
Author's Clarifying Amendments. In order to better express the
intent of the bill, the author appropriately proposes to amend
the bill as follows:
(12) To any foreign government if requested by the individual
who is the subject of the requested record if needed in
conjunction with an the individual's application to adopt a
minor child who is a citizen of that foreign nation. Requests
for information pursuant to this paragraph shall be in
accordance with the process described in Sections 11122 to
11124, inclusive. The response shall be provided to the foreign
government or its designee and to the individual who requested
the information .
REGISTERED SUPPORT / OPPOSITION :
Support
California Family Council
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334