BILL ANALYSIS
AB 973
Page 1
ASSEMBLY THIRD READING
AB 973 (Audra Strickland)
As Amended January 27, 2010
Majority vote
JUDICIARY 9-0 APPROPRIATIONS 17-0
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|Ayes:|Feuer, Tran, Brownley, |Ayes:|De Leon, Conway, Ammiano, |
| |Evans, Hagman, Jones, | |Bradford, Charles |
| |Knight, Lieu, Monning | |Calderon, Coto, Davis, |
| | | |Fuentes, Hall, Harkey, |
| | | |Miller, Nielsen, John A. |
| | | |Perez, Skinner, Solorio, |
| | | |Audra Strickland, |
| | | |Torlakson |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Limits when a peace officer may, without a warrant,
take a drug-exposed newborn into temporary custody.
Specifically, this bill :
1)Provides that a peace officer may, without warrant, take a
minor who is in the hospital into temporary custody if release
of the minor to a prospective adoptive parent or a
representative of a licensed adoption agency poses an
immediate danger to the child's health or safety.
2)Provides that, notwithstanding 1) above, a peace officer may
not, without a warrant, take into custody a newborn who is in
the hospital if, among other things, all of the following
apply:
a) The newborn or birth mother tested positive for illegal
drugs;
b) The newborn is the subject of a proposed adoption, as
opposed to a petition for adoption;
c) A Health Facilities Minor Release (HFMR) Report has been
completed by the hospital and signed by the placing birth
parent(s), as well as either the prospective adoptive
parent(s) or an authorized representative of a licensed
adoption agency, prior to the discharge of the child or
AB 973
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birth parent and that prior to signing the HFMR Report, the
birth parent(s) have been given a notice that the HFMR
Report does not constitute consent to adoption or
relinquishment of parental rights and that the birth
parents may reclaim the child at any time as provided;
d) Release of the newborn to a prospective adoptive parent
or an authorized representative of a licensed adoption
agency does not pose an immediate danger to the child; and,
e) The prospective adoptive parents or the representative
of a licensed adoption agency have provided the peace
officer in the hospital to take custody of the newborn with
the following documents: i) a fully executed HFMR Report;
ii) a properly executed form developed by the Department of
Social Services (DSS) stating that the child is the subject
of a proposed adoption; the names and contact information
for all parties; iii) an agreement to provide a conformed
copy of the adoption request to the county child welfare
agency within five days after filing; and, iv) a
declaration that the prospective adoptive parent(s) or
representative of the licensed adoption agency will comply
with the requirements of 3) below.
3)If the adoption plan is terminated for any reason, requires
the prospective adoptive parents or the licensed adoption
agency to immediately notify the county child welfare agency.
Requires that before the prospective adoptive parents or the
licensed adoption agency may release the minor to the birth
parent(s) or any designee of the birth parent(s), the county
child welfare agency or law enforcement must have completed an
investigation and determined that release of the minor to the
birth parent or designee will not create an immediate risk to
the health or safety of the minor.
4)Sunsets all of these changes effective January 1, 2013.
EXISTING LAW :
1)Allows a peace officer, without a warrant, to take into
temporary custody a minor who is in a hospital when release of
the minor to a parent poses an immediate danger to the child's
health or safety.
2)Provides that a peace officer may, without a warrant, take a
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minor who is in the hospital into temporary custody if release
of the minor to a prospective adoptive parent poses an
immediate danger to the minor's health or safety.
3)Prevents a peace officer, without a warrant, from taking a
child described in 2) above, into custody if all of the
following conditions exist:
a) The minor or the birth mother tested positive for
illegal drugs;
b) The minor is the subject of a petition for adoption;
c) A HFMR Report has been completed by the hospital and
signed by the placing birth parent(s) and the adoptive
parent, with boxes marked applicable to an independent
adoption or an agency adoption, prior to the discharge of
the child. A copy of an adoption placement agreement
signed by the placing birth parent or parents and the
prospective adoptive parent or parents may be used in place
of the HFMR;
d) The attorney or agency provides documentation stating
that he or she or the agency is representing the
prospective adoptive parents for the purposes of the
adoption;
e) Release of the minor to the prospective adoptive parents
does not pose an immediate danger to the child;
f) Prior to signing the HFMR, the birth parent(s) must be
given a notice, as specified, stating among other things
that the HFMR does not constitute consent to the adoption
or a relinquishment of parental rights, and that the birth
parent(s) may reclaim the minor from the prospective
adoptive parents until an adoption placement agreement or
relinquishment is signed by the birth parent(s); and,
g) The prospective adoptive parents or their representative
must provide a copy of the HFMR with the signed notice to
the birth parent(s) and a copy of the petition for adoption
to the local child protective services agency or the peace
officer who is at the hospital to take the minor into
temporary custody.
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FISCAL EFFECT : None
COMMENTS : In 2002, a law was enacted to prevent child
protective services agencies from unnecessarily taking a
drug-exposed newborn from the hospital into the foster care
system when an adoption plan was in place and an adoptive home
was waiting for the child (AB 2279 (La Suer), Chapter 920,
Statutes of 2002). The law, as revised in 2003 to try and
correct implementation difficulties with the original bill,
required that the newborn be the subject of an adoption
petition. (AB 962 (La Suer), Chapter 568, Statutes of 2003.)
However, in practice, the adoption petition is generally not
available until after the mother and child have been discharged
from the hospital. Thus the current requirements make it
difficult, if not impossible, for prospective adoptive parents
to take temporary custody of a drug-exposed baby at the hospital
and keep the child out of the foster care system. This bill
seeks to correct this problem by allowing a prospective adoptive
parent or a licensed adoption agency to take temporary custody
of a drug-exposed newborn if a number of more workable
requirements have been satisfied.
This bill deletes the requirement that there be a petition for
adoption and replaces it with a written form, to be developed by
DSS, that must be signed by the prospective adoptive parents or
representative of a licensed adoption agency stating that the
child is the subject of a proposed adoption; listing the names,
identifying information and contact information for the newborn,
the prospective adoptive parents and each birth parent, to the
extent the information is known; and stating the adoptive
parents' agreement to provide a conformed copy of the adoption
request to the county child welfare agency within five days
after filing.
The DSS form must also include a declaration that, if the
adoption plan is terminated for any reason, the prospective
adoptive parents or representative of a licensed adoption agency
will immediately notify the county child welfare agency.
Furthermore, before the prospective adoptive parents or the
licensed adoption agency may release the child to the birth
parents or any designee of the birth parents, the county child
welfare agency or law enforcement must first complete an
investigation and determine that release of the child to the
birth parent or designee will not create an immediate risk to
the health or safety of the child. The bill also, independent
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of the declaration, requires that the prospective adoptive
parents or representative of the licensed adoption agency comply
with these requirements as well.
All stakeholders acknowledge that since this law was first
codified in 2002 it has not, in actuality, worked effectively to
allow prospective adoptive parents to bring their newborns into
safe, loving homes and avoid the foster care system. The
safeguards put in place to help ensure the safety of the
newborns have effectively kept prospective adoptive parents from
being able to take the children. Some jurisdictions have looked
the other way and allowed prospective adoptive parents to take
custody of these children, while others have followed the letter
of the law and have not allowed these newborns to avoid foster
care, even when that was not in the best interests of the child.
Neither option is desirable.
This bill seeks to correct the problems of the earlier law.
However, given the problems that have plagued this law in the
past, it is not entirely certain how this bill will be
implemented. Therefore, the bill sunsets on January 1, 2013,
which will give the Legislature the ability, at that time, to
determine if the law is working appropriately or if it needs to
be corrected in any way.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334 FN: 0003644