BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2020 (Fletcher)
As Amended June 3, 2010
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Family Law
DESCRIPTION
This bill, sponsored by the Academy of California Adoption
Lawyers, would make several changes to adoption processes and
adoptive placement considerations.
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 that a man is presumed to be a child's
father if, among other things: (a) he has signed a
declaration of paternity; (b) he was married to the child's
mother and the child was born within 300 days of the marriage;
(c) he attempted to marry the child's mother; or (d) he holds
the child out as his own. Existing law requires that these
presumptions be applied gender neutrally. (Fam. Code Secs.
7611, 7650; Elisa B. V. Superior Court (2005) 37 Cal.4th 108.)
Existing law provides that, for a child with a presumed
father, a child, the child's natural mother, or the presumed
father may bring an action to determine the existence of a
(more)
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father-child relationship. Existing law provides a separate
process to determine the existence of a father-child
relationship for a child who does not have a presumed father
or whose presumed father is deceased. (Fam. Code Secs.
7630-31.)
This bill would provide that the same process be used to
determine the existence of a parent-child relationship,
regardless of whether the child has a presumed parent or not,
including the same time period for bringing the action. This
process would not apply if the conclusive presumption of
paternity for a child of a marriage exists.
2.Existing law provides that if a mother consents to the adoption
of a child, or relinquishes a child or adoption, a petition to
terminate the parental rights of the father is required,
subject to specified exceptions, and an action to terminate
the parental rights of the father shall be set for a hearing.
(Fam. Code Sec. 7667.)
This bill would authorize the court in an action to terminate
parental rights to dispense with a hearing and issue an ex
parte order terminating parental rights if: (1) the identity
or whereabouts of the alleged father is unknown; (2) he has
been served with a written notice of his alleged paternity and
the potential adoption and has failed to respond; or (3) he
has signed a waiver of his right to notice or a denial of
paternity.
3.Existing law provides that if a child is being considered for
adoption, the State Department of Social Services or licensed
adoption agency is required to first consider adoptive
placement in the home of a relative, unless it is not in the
child's best interest, or if other specified conditions exist.
Existing law exempts from this provision a child who has been
adjudged a dependent of the juvenile court, for which there
are relative placement requirements under the Welfare and
Institutions Code. (Fam. Code Sec. 8710.)
This bill would additionally exempt a child, who is the
subject of an agency adoption where the birth parent(s) have
named the prospective adoptive parent(s), from this
requirement.
This bill would provide that, except as required by the Indian
Child Welfare Act, the refusal of a birth parent to place an
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adoptive child with relatives or siblings is a sufficient
basis for finding that such a placement in not in the best
interests of the child.
This bill would provide that this provision should not be
construed to require a child who has been placed for adoption
to be removed from the adoptive home in order to be placed
with siblings or other relatives.
4.Existing law provides, if a parent is seeking to relinquish a
child or execute an adoption placement agreement, the State
Department of Social Services, licensed adoption agency, or
adoption service provider is required to ask the child and the
child's parent or custodian whether the child is, or may be, a
member of an Indian tribe. Existing law provides that these
entities are required to send a specified notice and a request
for confirmation of the child's Indian status to any parent or
custodian of the child, and to any Indian tribe of which the
child is, or may be, a member. (Fam. Code Sec. 8620.)
This bill would additionally include an attorney for the
prospective adoptive parents among the entities that are
required to send this notice and request for confirmation of a
child's Indian status.
5.Existing law provides that in each case of stepparent adoption,
the probation officer, qualified court investigator, licensed
clinical social worker, licensed marriage family therapist, or
the county welfare department is required to conduct an
investigation. (Fam. Code Sec. 9001.)
This bill would additionally include a licensed adoption
agency among the entities that are required to conduct the
investigation.
6.Existing law provides that a court may appoint a guardian of the
person or estate of a minor child if it appears necessary or
convenient, as specified. Existing law provides that a
proceeding to have the child declared free from the custody
and control of one or both parents may be brought in the
guardianship proceeding if specified requirements are met,
including a requirement that the child have been in the
physical custody of the guardian for a period of not less than
two years. (Prob. Code Sec. 1516.5.)
Existing law provides that a guardianship case is to be
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consolidated with an adoption case if the same child is the
subject of each action. Existing law provides that the
consolidated case should be heard in the court where the
adoption is pending. (Prob. Code Sec. 1510.)
This bill would provide that a proceeding to have a child who
is the subject of a guardianship declared free from the
custody or control of one or both parents may be brought
within the existing guardianship proceeding, in an adoption
action, or in a separate action filed for that purpose.
COMMENT
1. Stated need for the bill
According to the author and sponsor, this bill seeks to address
technical issues that may cause families pursuing adoptions to
spend scarce resources on legal fees due to inconsistencies in
state court and statutory laws.
2. Bill would streamline the processes for determining
parent-child relationships
A man married to the birth mother is presumed to be the natural
father of a child if the child is born during the marriage, or
within 300 days after the marriage is terminated. (Fam. Code
Sec. 7611.) Current law also recognizes presumed fathers where
the couple is unmarried, but have attempted to do so prior to
the child's birth. A man may also consent to be named as the
child's father on the birth certificate or openly hold out the
child as his natural child. (Id.) A presumed birth father has
the same rights and responsibilities as a birth mother and an
adoption cannot proceed without the presumed father's consent,
unless his parental rights have been terminated or he has
voluntarily relinquished the child for adoption. While the
statutory scheme generally refers to presumed fathers, the
presumptions apply equally to presumed mothers. (See, e.g.,
Elisa B. V. Superior Court (2005) 37 Cal.4th 108.)
An alleged father is a man who is identified by the birth mother
as the potential birth father of a child. Alleged fathers must
be notified of the adoption petition, but a court may end their
parental rights if they fail to bring an action to establish
paternity within 30 days of being served with notice of an
adoption proceeding. (Fam. Code Sec. 7662.) Alleged fathers
may also consent to an adoption, waive notice of the proceeding,
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sign a denial of paternity, or voluntarily relinquish a child
for adoption. (Id.)
Existing law provides slightly different statutory schemes for
alleged and presumed fathers to seek legal recognition of their
relationship with the child or to terminate their parental
rights. However, the California Supreme Court has held that
alleged fathers have a constitutional right to gain custody of
their children, even if they do not satisfy one of the
conditions necessary to be recognized as a presumed father. In
Adoption of Kelsey S., the Court held that the statutory scheme
that required, for purposes of adoption, consent of mothers and
presumed fathers, but allowed for termination of parental rights
of alleged fathers on the basis of the child's best interests,
violated the alleged father's constitutional rights. (Adoption
of Kelsey S. (1992) 1 Cal.4th 816.)
This bill would eliminate the procedural distinctions for
alleged and presumed parents, thereby creating one consistent
procedural framework for establishing and terminating the rights
of presumed and alleged parents. This change is consistent with
recent case law which has expanded rights of alleged parents.
3. Hearing would not be mandated in specified circumstances
As previously stated, notice of a proposed or pending adoption
must be provided to any man that is alleged to be or could be
the father of the child to be adopted or relinquished for
adoption. Notice must be given in accordance with the
provisions of the Code of Civil Procedure for the service of
process in a civil action, and must be given at least ten days
before the hearing. (Fam. Code Sec. 7666.)
Existing law further requires the court to set a hearing on
every petition to terminate parental rights of alleged fathers.
However, there are instances when such a hearing is, in
practice, of little value because it involves an unknown father
or a father who cannot be located. In these instances, there is
no way to serve notice of a hearing to terminate parental rights
on the fathers. If a father is known, but his whereabouts are
unknown, the court may dispense with notice for the hearing.
(Fam. Code Sec. 7666.)
Similarly, no notice is required for an alleged father who has
validly executed a denial of paternity or a waiver of the right
to notice of the action to terminate parental rights. (Fam.
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Code Sec. 7660.5.) Further, no notice of the proceedings is
required for an alleged father who, in response to a required
notice of his alleged paternity and of a proposed adoption,
fails to bring the required action to establish a parent-child
relationship within 30 days. (Fam. Code Sec. 7664.)
In all of above-described situations, the alleged father will
not receive notice of the termination of parental rights
hearing, since, for the various reasons discussed, no further
notice is required. Because the father or alleged father will
not receive notice of the hearing to terminate parental rights,
he cannot possibly appear at the hearing. However, under
current law, the court must still set the termination of
parental rights for hearing. Accordingly, this bill would allow
the court to dispense with a hearing and issue an ex parte order
terminating parental rights only in these specified
circumstances where the alleged father will not have, and is not
required to have, notice of the proceeding.
While it appears that neither the father nor the court receives
any benefit from holding these hearings, this committee may wish
to inquire of the author whether alleged fathers are provided
with sufficient information in the initial notice of the
proposed adoption as to the consequences for failing to bring a
timely action to establish paternity.
4. Bill would correct a conflict regarding voluntary
adoption placements
In an agency adoption, a birth parent may relinquish the child
to the adoption agency and the agency may choose an adoptive
family for placement. Alternatively, the birth parent can
choose the adoptive family and name them in the relinquishment.
In this situation, the agency must place the child with the
named adoptive parents. If that placement is not available for
any reason, the agency must give the birth parent the
opportunity to rescind the relinquishment or choose an
alternative placement. (Fam. Code Sec. 8700.)
Existing law also requires that before an adoptive child can be
placed, the adoption agency should consider placement of the
child in the home of a relative. (Fam. Code Sec. 8710.) This
is in direct conflict with the provision that requires the
agency to honor an adoptive parent's directive in the
relinquishment.
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In order to correct this inconsistency, this bill would
specifically exempt a relinquishment to specific birth parents
from the requirement to first consider relative placement. The
bill would also provide that, except as required by the Indian
Child Welfare Act (ICWA), a birth parent's refusal to place a
child with relatives or siblings is sufficient grounds for the
agency to find that such a placement is not in the child's best
interests. This bill would further clarify that these provision
only apply to voluntary adoption placements, and not dependency
adoptions.
5.Bill would authorize attorneys for prospective adoptive
parents to send ICWA notice
Under existing law, if a parent is seeking to relinquish a child
or execute an adoption placement agreement, the State Department
of Social Services, licensed adoption agency, or adoption
service provider is required to ask the child and the child's
parent or custodian whether the child is, or may be, a member of
an Indian tribe. These entities are also required to send a
specified notice and a request for confirmation of the child's
Indian status to any parent or custodian of the child, and to
any Indian tribe of which the child is, or may be, a member.
According to the sponsor, in many cases, adoptive parents are
represented by attorneys who are willing and able to send these
notices. This bill would accordingly authorize attorneys for
the prospective adoptive parents to send the required ICWA
notices.
6.Bill would authorize licensed adoption agencies to conduct
step-parent adoption investigations
Current law requires specified individuals, including probation
officers, court investigators, licensed clinical social worker
and licensed marriage therapists to conduct an investigation in
each case of stepparent adoption. The court may not make an
order of adoption until after a report and recommendation on the
stepparent adoption has been filed and considered by the court.
(Fam. Code Sec. 9001.) The investigation is intended to assure
the court that the adoption is in the best interest of the
child.
According to the sponsor, many courts require fingerprint
clearances for the petitioning step-parent, which social workers
and marriage therapists are unable to obtain because they lack
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the authority to contract with the Department of Justice for
these clearances. However, licensed adoption agencies do have
this authority. This bill would accordingly authorize licensed
adoption agencies to conduct step-parent adoption
investigations, which would provide for resources for
step-parents in counties where fingerprint clearances are
required.
7. Bill would make a clarification regarding guardianship
and adoption proceedings
Under current law, the court may terminate parental rights where
a child has been in a guardianship for two years, the guardian
wishes to adopt the child, and the court finds that the adoption
is in the child's best interests. (Prob. Code Sec. 1516.5.)
Current law also requires that the petition to terminate
parental rights must be filed in the guardianship proceeding
which is held in probate court. However, Probate Code Section
1510(h) provides that a guardianship case is to be consolidated
with an adoption case if the same child is the subject of each
action, and the consolidated case should be heard in the court
where the adoption is pending.
According to the sponsor, the discrepancy in the statutes has
resulted in disparate procedures depending on the court's
interpretation on which provision is controlling. This bill
would provide that the petition to terminate parental rights for
a child under guardianship may be brought within the existing
guardianship proceeding, in an adoption action, or in a separate
action filed for that specific purpose. This would permit the
petition to be filed in the court most appropriate for the
particular case.
Support : Family Law Section of the State Bar
Opposition : None Known
HISTORY
Source : Academy of California Adoption Lawyers
Related Pending Legislation : None Known
Prior Legislation : SB 1726 (Scott, Chapter 534, Statutes of
2008) made several substantive and technical changes to adoption
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law, including providing that consolidated guardianship and
adoption cases shall be heard and decided by the court in which
the adoption is pending.
AB 538 (Cardozo, Chapter 353, Statutes of 2001), among other
things, authorized licensed clinical social workers and licensed
marriage therapists to conduct step-parent adoption
investigations.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 72, Noes 0)
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