BILL ANALYSIS
AB 941
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 941 (Judiciary Committee)
As Amended September 3, 2009
Majority vote
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|ASSEMBLY: |71-0 |(April 23, |SENATE: |40-0 |(September 9, |
| | |2009) | | |2009) |
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Original Committee Reference: JUD.
SUMMARY : Makes several technical and clarifying changes to
adoption requirements. Specifically, this bill clarifies:
1)That an optional postadoption contact agreement between
adoptive parents and birth relatives, other than the birth
parents, may, if the parties agree, include more than just the
sharing of information about the child, if the birth relatives
have a preexisting relationship with the child.
2)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.
3)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: a) a representative of a public
adoption agency in the state where the birth parent is
located; b) a judicial officer in that state if the birth
parent is represented by independent legal counsel; or, c) an
adoption service provider.
4)That a prospective adoptive stepparent and child must appear
before the court, as required by existing law.
5)The appropriate venue for filing an adoption petition for both
prospective adoptive parents who reside in California and
those who reside out-of-state.
The Senate amendments add the venue clarifications and clarify
the terms of postadoption contact agreements.
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EXISTING LAW provides:
1)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.
2)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: a) a representative of DSS or the
delegated county adoption agency; b) a judicial officer if the
birth parent is represented by independent legal counsel; or,
c) an adoption service provider if the birth parent is
represented by independent legal counsel, as provided.
3)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: a) a representative of a public
adoption agency in the state where the birth parent is
located; b) a judicial officer in that state if the birth
parent is represented by independent legal counsel; or, c) an
adoption service provider.
4)That the adoption service provider owes a very high duty of
care to the birth parent, regardless of who pays the
provider's fees.
5)A procedure for stepparent adoptions and states when the
prospective adoptive stepparent and child must appear before
the court.
6)That a petition for adoption of a minor may be filed in the
court in the county in which any of the following applies: a)
a petitioner lives; b) the minor lives; or, c) an office of an
agency that placed the child is located.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : This non-controversial bill, sponsored by the Academy
of California Adoption Lawyers (ACAL), is ACAL's annual adoption
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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), Chapter 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 timeframes 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
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
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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 and that duty of
care is similar to the duty of care of a psychotherapist to his
or her patient. 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 several 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
- 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 clarifies if birth relatives, other
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than birth parents, have no preexisting relationship with the
child, any postadoption contact is limited to information
sharing.
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 and
clarifies the appropriate venue for adoption petitions.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0003059