BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 973 ( Strickland)
As Amended January 27, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Minors: Temporary Custody
DESCRIPTION
This bill would, until January 1, 2013, revise the current
requirements that must be met before prospective adoptive
parents may take a drug-exposed newborn into temporary custody
from the hospital.
BACKGROUND
In 2002, AB 2279 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 available
for the child. (AB 2279 (La Suer), Chap. 920, Stats. 2002.) AB
2279 was subsequently revised in 2003 in order to correct
implementation difficulties with the original bill. (AB 962 (La
Suer), Chap. 568, Stats. 2003.)
Under the current statutory scheme, the newborn must be the
subject of an adoption petition. However, in practice, the
adoption petition is generally not available until after the
mother and child have been discharged from the hospital. Thus,
the requirements in current law 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 instead implementing a number of more workable
requirements, designed to ensure that the child is safe from
harm, which must be satisfied prior to the child's release to
(more)
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the prospective adoptive parents.
CHANGES TO EXISTING LAW
Existing law 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. (Wel. & Inst. Code Sec. 305.6.)
Existing law provides that a peace officer may, without a
warrant, take a 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.
(Wel. & Inst. Code Sec. 305.6.)
Existing law 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 Health Facility Minor Release Report (HFMR) 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
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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. (Wel. & Inst. Code Sec. 305.6.)
This bill would provide 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.
This bill would provide that, notwithstanding the above
provisions, 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 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
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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 specified requirements.
This bill would require that, if the adoption plan is terminated
for any reason, the prospective adoptive parents or the licensed
adoption agency immediately notify the county child welfare
agency.
This bill would provide 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.
This bill would sunset on January 1, 2013.
COMMENT
1. Stated need for the bill
According to the author, this bill seeks to correct a problem
caused by inconsistency in California's adoption law, which
prevents mothers from ensuring that their newborn goes home with
adoptive parents instead of entering the foster care system.
In support, the County Welfare Directors Association of
California writes:
This legislation seeks to ensure that a newborn that tests
positive for a controlled substance at birth can be safely
taken home from the hospital by an adoptive family or
representative of an adoption agency. Current law allows for
this to occur when the baby is the subject of a legitimate
adoption, but the law is structured in such a manner that the
statutorily required documentation that must be provided by
the adoptive family or adoption agency cannot actually be
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provided at the time of the baby's birth. This has caused
confusion among hospital personnel, county law enforcement and
child welfare agencies, and adoptive parents and agencies.
Also in support, the Academy of California Adoption Lawyers
writes:
These changes provide a stronger law that will allow those
"positive tox" infants who have an adoption plan to be
released from the hospital while retaining the ability of the
social workers or law enforcement to intercede if they believe
it is necessary. Additionally, if the birth mother seeks to
reclaim her child, the amendments provide for a process that
ensures that Child Welfare is informed and signs off in order
to protect the child.
2. Bill would impose new requirements that must be satisfied
before a drug-exposed newborn may be released to a prospective
adoptive parent
Under current law, 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. (Wel. & Inst. Code Sec. 305.6.). All
stakeholders acknowledge that this law does not, in actuality,
work effectively to allow prospective adoptive parents to bring
their newborns into safe, loving homes and avoid the foster care
system because the adoption petition is not available until
after the mother and child are discharged from the hospital.
Instead, 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 home. Some
jurisdictions have reportedly 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 being placed in foster care,
even when that was not in the best interest of the child.
This bill would remove the requirement for a petition for
adoption, and would replace it with a written form, to be
developed by the Department of Social Services (DSS). The form
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 and must list the
names, identifying information and contact information for the
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newborn, the prospective adoptive parents and each birth parent,
to the extent the information is known. The form must also
state the adoptive parents' agreement to provide a conformed
copy of the adoption request to the county child welfare agency
within five days after filing.
Further, 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. Before
the prospective adoptive parents or the licensed adoption agency
may release the child to the birth parent(s), the county child
welfare or law enforcement agency would first be required to
complete an investigation and determine that release of the
child to the birth parent will not create an immediate risk to
the health or safety of the child. This should help ensure that
the child will remain safe and not fall through cracks in the
system, even if the adoption falls through.
It is important to note that the prospective adoptive parents or
licensed adoption agency would not be able to take temporary
custody of the newborn if such custody poses an immediate danger
to the child. Additionally, even if the prospective adoptive
parents satisfy all the requirements in this bill, if there is
any concern about the child's safety, a peace officer will still
have the ability to obtain a warrant and take the newborn into
temporary custody. If that occurs, a prospective adoptive
parent who wants to take the child into custody will have to
wait for a court hearing to make his or her case for temporary
custody. Together, these provisions should help ensure that the
safety of the drug-exposed newborn remains the most important
consideration in any determination of temporary custody.
3. Bill contains short sunset date
As previously stated, this bill seeks to correct the problems of
the current law while still ensuring the safety of newborns that
have been exposed to drugs. However, given the problems that
have plagued this law in the past, it is difficult to predict
whether this bill, in practice, would correct all of the
identified issues. Therefore, in order to ensure that the
proposed changes work effectively to protect the safety of
drug-exposed newborns, this bill contains a sunset date of
January 1, 2013. This should provide the Legislature with the
opportunity to obtain feedback from the relevant stakeholders
and determine whether the new changes are working appropriately
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or if further changes are necessary.
Support : Academy of California Adoption Lawyers; California
State Association of Counties; County Welfare Directors
Association of California; Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 68, Noes 0)
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