BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 941
Assembly Committee on Judiciary
As Amended June 11, 2009
Hearing Date: June 16, 2009
Family Code
KB:jd
SUBJECT
Adoption
DESCRIPTION
This bill would make several technical and clarifying changes to
adoption law.
BACKGROUND
Every year, the Academy of California Adoption Lawyers (ACAL)
seeks to clarify or modify provisions in the Family Code which
they have identified as having either technical errors or as
being the basis for conflicting court rulings that could
potentially prolong the adoption process. This bill is being
sponsored by ACAL for this specific purpose.
CHANGES TO EXISTING LAW
1. Existing law provides for postadoption contact agreements
between adoptive parents and birth relatives of the adopted
child. Existing law limits the postadoption contact to just
sharing information about the child, unless the child has an
existing relationship with the birth relatives. (Fam. Code
Sec. 8616.5.)
This bill would clarify 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.
(more)
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2. Existing law 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. (Fam. Code Sec.
8814.5.)
Existing law 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. (Fam.
Code Sec. 8814.5.)
Existing law 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. (Fam. Code Secs. 8801.5,
8801.7.)
This bill would clarify 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.
This bill would clarify 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.
3. Existing law provides a procedure for stepparent adoptions
and states when the prospective adoptive stepparent and child
must appear before the court. (Fam. Code Secs. 9000-9007.)
This bill would clarify that a prospective adoptive stepparent
and child must appear before the court, as required by
existing law.
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4.Existing law provides that an action brought under the Uniform
Parentage Act (Fam. Code Sec. 7600 et seq.) may be brought in
one of the following: (1) the county in which the child
resides or is found; (2) the county in which a licensed
California adoption agency maintains an office if that agency
brings the action; or (3) if the father is deceased, the
county in which proceedings for probate of the estate of the
father of the child have been or could be commenced. (Fam.
Code Sec. 7620.)
This bill would additionally provide that, if the child is the
subject of a pending or proposed adoption, an action under the
Uniform Parentage Act may be brought in: (1) a county in
which a licensed California adoption agency to which the child
has been relinquished or is proposed to be relinquished
maintains an office; and (2) any county in which an office of
the Department of Social Services or a public adoption agency
investigating the petition is located.
5.Existing law provides that a petition for an order or judgment
to free a child from the custody or control of either or both
parents shall be filed in either of the following: (1) the
county in which the minor resides or is found; and (2) the
county in which any of the specified acts which may be the
basis of the petition are alleged to have occurred.
This bill would additionally provide that a petition to free a
child from the custody or control of either or both parents
may be filed in the county in which a petition for the
adoption of the child has been filed or the adoption agency to
which the child has been relinquished or proposed to be
relinquished has an office.
6. Existing law provides that a petition for adoption of a
minor may be filed in the court in the county in which any of
the following applies: (1) a petitioner lives; (2) the minor
lives; or (3) an office of an agency that placed the child is
located.
This bill would instead provide that petitioners who are
residents of California may file a petition to adopt a child
with the court in any county where one of the following
applies: (1) a petitioner resides; (2) the minor was born or
resides at the time of the filing; (3) an office of the agency
that placed the child for adoption is located; and (4) the
office of the Department of Social Services or public adoption
agency that is investigating the petition is located.
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This bill would also provide that petitioners who are not
residents of California may file a petition to adopt a child
in the county where: (1) the minor was born or resides at the
time of the filing; (2) an office of the agency that placed
the child for adoption is located; and (3) the office of the
Department of Social Services or public adoption agency that
is investigating the petition is located.
COMMENT
1. Stated need for the bill
According to the author, the changes proposed in this bill are
to eliminate ambiguity or internal inconsistencies within the
Family Code, which may cause families adopting children to
unnecessarily spend thousands of dollars. The author also
asserts that this bill will eliminate outdated provisions and
cross references, and clarify sections which are currently
confusing to judges.
2.This bill would make several clarifications with respect to
waivers of revocation rights
In 1992, the Legislature enacted SB 1148 (Bergeson, Chapter
1353, Statutes 1992), 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. Senator Bergeson convened an interim
study of the problems in independent adoptions and, as a result
of the information obtained in numerous meetings, drafted
comprehensive new procedures for independent adoptions in
California. The following year, SB 792 was enacted (Bergeson,
Chapter 758, Statutes of 1993) and imposed additional
requirements for independent adoptions, which became operative
on January 1, 1995.
The Bergeson 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 consent to an
independent adoption has 30 days during which he or she may
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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, Chapter 534, Statutes of 2008),
established two alternative procedures to those already in
current law 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
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 right to revoke consent. 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. There has never been an independent counsel
requirement for adoption service providers in out-of-state
waivers. This bill would clarify that the changes implemented
by SB 1726 only applied to waivers conducted in-state as opposed
to out-of-state.
This bill would also clarify that, for waivers performed in
California, the adoption service provider who takes the waiver
may be the same adoption service provider who has advised the
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birth mother, and has witnessed the signing of the consent to
the adoption. This is already permissible under current law,
and this bill would ensure clarity as to the requirements
necessary for a valid waiver of the right to revoke consent to
an adoption.
3.This bill would make several other technical changes with
respect to postadoption contact agreements
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
- 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 outdated 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-reference change to
clarify that a prospective adoptive stepparent and the child
must appear before the court, as required by existing law.
4.This bill would provide additional venues where specified
petitions may be filed
In order to provide suitable venues for adoptive parents, this
bill would make several changes to venues where specified
petitions may be filed. Currently, a petition under the Uniform
Parentage Act (UPA) may be filed in the county where the
licensed California adoption agency maintains an office, but
only if the agency brings the action. This bill would provide
that, if the child is the subject of a pending or proposed
adoption, a petition under the UPA may be filed in (1) the
county where a licensed California adoption agency to which the
child will be relinquished or proposed to be relinquished is
located, or (2) the county in which an office of the Department
of Social Services or a public adoption agency investigation the
petition is located. This would enable adoptive parents, as
well as the adoption agency to bring an action in the county
where the adoption agency is located. This would also provide
a suitable venue for out-of-state prospective adoptive parents
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to file a petition.
Second, this bill would provide that a petition for an order or
judgment declaring a child free from the custody or control of
either or both parents may be filed in a county in which a
petition for the adoption of the child has been filed or where
the adoption agency to which the child has been relinquished or
proposed to be relinquished is located. Again, this would
provide a suitable venue for out-of-state prospective adoptive
parents to file a petition to free a child from parental custody
and control.
Finally, this bill would make conforming changes to the venue
statute governing petitions for the adoption of minors, which
would also enable in-state and out-of-state adoptive parents to
file petitions in the county where the minor was born, and where
the office of the Department of Social Services or public
adoption agency that is investigating the petition is located.
Support : None Known
Opposition : None Known
HISTORY
Source : Academy of California Adoption Lawyers
Related Pending Legislation : None Known
Prior Legislation : SB 1726 (Scott, 2007) See Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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