BILL ANALYSIS
AB 941
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 941 (Committee on Judiciary) - As Amended: April 2, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: ADOPTION: WAIVER OF RIGHTS
KEY ISSUE : SHOULD TECHNICAL AND CLARIFYING CHANGES BE MADE TO
FIX INCONSISTENCIES IN CALIFORNIA'S ADOPTION LAW?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Academy of
California Adoption Lawyers, makes several technical and
clarifying changes to California's adoption laws. The most
substantive change clarifies how an out-of-state birth parent
may waive his or her right to revoke consent to an adoption.
Last year, SB 1726 (Scott), Chap. 534, Stats. 2008, provided new
methods for in-state birth parents to waive their right to
revoke consent to an adoption. That bill did not, however,
change how birth parents located outside of California can waive
their revocation right, and this bill seeks to clarify that.
There is no known opposition.
SUMMARY : Makes several technical and clarifying changes to
adoption requirements. Specifically, this bill :
1)Clarifies that an optional postadoption contact agreement
between adoptive parents and birth relatives may, if the
parties agree, include more than just the sharing of
information about the child, even if the child does not have
an existing relationship with the birth relatives.
2)Clarifies that an adoption service provider before whom the
birth parent may waive the right to revoke consent to an
independent adoption can include the adoption service provider
who advised the birth mother and witnessed the signing of the
consent to the adoption.
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3)Clarifies that a birth parent living outside of California may
waive the right to revoke consent to an independent adoption
by signing a waiver in the presence of (1) a representative of
a public adoption agency in the state where the birth parent
is located; (2) a judicial officer in that state if the birth
parent is represented by independent legal counsel; or (3) an
adoption service provider.
4)Clarifies that a prospective adoptive stepparent and child
must appear before the court, as required by existing law.
EXISTING LAW :
1)Provides for postadoption contact agreements between adoptive
parents and birth relatives of the adopted child. Limits the
postadoption contact to just sharing information about the
child, unless the child has an existing relationship with the
birth relatives. (Family Code Section 8616.5. Unless
otherwise provided, all further statutory references are to
that code.)
2)Provides that a birth parent living in California may waive
the right to revoke consent to an independent adoption by
signing the waiver in the presence of: 1) a representative of
DSS or the delegated county adoption agency; 2) a judicial
officer if the birth parent is represented by independent
legal counsel; or 3) an adoption service provider if the birth
parent is represented by independent legal counsel, as
provided. (Section 8814.5.)
3)Provides that a birth parent living outside of California may
waive the right to revoke consent to an independent adoption
by signing a waiver in the presence of: 1) a representative
of a public adoption agency in the state where the birth
parent is located; 2) a judicial officer in that state if the
birth parent is represented by independent legal counsel; or
3) an adoption service provider. (Section 8814.5.)
4)Provides that the adoption service provider owes a very high
duty of care to the birth parent, regardless of who pays the
provider's fees. (Sections 8801.5, 8801.7.)
5)Provides a procedure for stepparent adoptions and states when
the prospective adoptive stepparent and child must appear
before the court. (Sections 9000-07.)
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COMMENTS : This non-controversial bill, sponsored by the Academy
of California Adoption Lawyers (ACAL), is ACAL's annual adoption
cleanup bill. The bill makes several technical and clarifying
changes to California's adoption laws.
The most substantive changes concern an alternative procedure by
which in-state birth parents may waive their right to revoke
consent to an independent adoption created last year . In 1992,
the Legislature enacted SB 1148 (Bergeson), Chap. 1353, which
was initiated as a response to three Orange County cases in
which adopted children were reclaimed by birth parents after
having lived in the home of adoptive parents for more than a
year. That legislation set forth procedures for obtaining the
consent of birth parents, ensuring that birth parents are
advised of their rights prior to signing a placement agreement,
specifying the qualifications and responsibility of adoption
service providers, and setting the procedure and time frames for
revoking a consent or waiving the right to revoke a consent.
Under California law, a birth parent who signs a consent to an
independent adoption has 30 days during which he or she may
revoke the consent and regain custody of the child. Prior to
this year, a birth parent who wished to waive his or her right
to revoke consent to an adoption had to do so in the presence of
a representative of DSS or the delegated county adoption agency.
The waiver may only be signed after the consent to adoption has
been signed, which, in turn, can only be signed after the
child's birth. In addition, the waiver may not be signed until
an interview has been completed by the department or agency
representative. Until last year, if a department or agency
office was not able to conduct the interview within 10 days of a
request, or was not within 100 miles of the birth mother, the
waiver could be signed in the presence of a judicial officer,
provided the birth parent was represented by independent legal
counsel. In that instance, the judge conducted the interview.
Last year's SB 1726 (Scott), established two alternative
procedures for in-state birth parents who want finality in an
adoption to waive their right to revoke consent to the adoption.
First, if they have independent counsel, they may sign the
revocation waiver before a judicial officer, regardless of the
availability of DSS or the delegated county adoption agency.
Alternatively, birth parents may sign the waiver in the presence
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of their adoption service provider if the birth parents are
represented by independent legal counsel. The independent legal
counsel is required to conduct the interview in lieu of a DSS
representative, and counsel the birth parents on their rights
under California law and the implications of the waiver.
SB 1726 did not, however, change how out-of-state birth parents
may waive their revocation right. The out-of-state process has
permitted adoption service providers to take the waiver since
1993. There has never been an independent counsel requirement
for adoption service providers in out-of-state waivers. Under
existing law, a birth parent living outside of California may
waive the right to revoke consent to an independent adoption by
signing a waiver in the presence of (1) a representative of a
public adoption agency in the state where the birth parent is
located; (2) a judicial officer in that state if the birth
parent is represented by independent legal counsel; or (3) an
adoption service provider. This bill simply clarifies that the
changes made last year to in-state waivers do not apply to
out-of-state waivers.
Second, this bill clarifies that, for in-state waivers, the
adoption service provider who takes the waiver may be the same
adoption service provider who has advised the birth mother and
has witnessed the signing of the consent to the adoption. The
adoption service provider already owes a "very high duty of
care" to the birth parent he or she is advising (Section 8801.7)
and that duty of care is similar to the duty of care of a
psychotherapist to his or her patient. (Section 8801.5) This
is true regardless of who pays the adoption service provider's
fees. This bill ensures that the adoption service provider who
has been advising the birth parent and who already has a
fiduciary relation with the birth parent can take the waiver.
Current law does not restrict this, and this change ensures
clarity as to the requirements necessary for a valid waiver of
the right to revoke consent to an adoption.
The bill makes two other technical changes to adoption law .
Postadoption contact agreements are voluntary agreements between
birth relatives or Indian tribes and adopting parents to allow
for continuing contact between birth relatives or tribes and the
child. When the postadoption contact agreement statute was
first promulgated, it only applied to juvenile court
proceedings. At that time, the statute limited postadoption
contact agreements only to sharing information - and not contact
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- with birth relatives unless there was a preexisting
relationship between the child and the birth relatives.
Postadoption contact agreements are now available for all types
of adoptions. This bill eliminates the antiquated reference
that limits these agreements to information only if the birth
relatives have no preexisting relationship with the child.
The bill also makes a technical cross referencing change to
clarify that a prospective adoptive stepparent and the child
must appear before the court, as required by existing law.
Technical Amendment : In order to ensure that the bill's
clarifications do not lead to further confusion, the following
technical change is needed:
On page 9, line 4, delete "following" and insert: "above".
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers (sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334