BILL ANALYSIS
AB 2020
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2020 (Fletcher)
As Amended August 3, 2010
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |72-0 |(April 15, |SENATE: |33-0 |(August 11, |
| | |2010) | | |2010) |
-----------------------------------------------------------------
Original Committee Reference: JUD.
SUMMARY : Makes changes to adoption processes and adoptive placement
considerations. Specifically, this bill :
1)Provides 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 does not apply if the
conclusive presumption of paternity for a child of a marriage
exists.
2)Allows the court to dispense with a hearing to terminate parental
rights and may instead issue an ex parte order terminating those
rights if any of the following apply:
a) The identity or whereabouts of the father are unknown;
b) The alleged father has validly executed a waiver of the
right to notice or a waiver or denial of paternity; or,
c) The alleged father has been served with written notice of
his alleged paternity and the proposed adoption and has failed
to bring an action to determine the existence of a parent-child
relationship, as required.
3)Provides that, if the birth parent refuses to consider placement
of a child being considered for adoption with a relative or
sibling, the foster parent shall be considered, along with all
other prospective adoptive parents, as provided. Requires the
court, upon request to move a child from a prospective adoptive
home for purposes of placement of the child with siblings or other
relatives, to consider the child's best interests.
4)Includes an attorney for the prospective adoptive parents among
the entities that may send the required notice and 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.
AB 2020
Page 2
5)Includes a private, licensed adoption agency among the entities
that, in a stepparent adoption, can conduct the required
investigation. Requires that if a private, licensed adoption
agency conducts the investigation, it must assign the
investigation to a licensed social worker or marriage and family
therapist, as provided. Requires that any grievance regarding the
investigation be directed to the appropriate licensing authority.
6)Provides 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.
The Senate amendments limit exemptions to the requirement that, when
considering placement of a child for adoption, placement with
relatives and siblings must be first considered; specify the
appropriate grievance procedure against private, licensed adoption
agencies involved in stepparent adoption investigations; and make
minor changes in 4) and 6) above.
EXISTING LAW :
1)Defines a man as a presumed 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. Requires that these presumptions
be applied gender neutrally
2)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 father-child relationship.
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.
3)Requires that an action to terminate the parental rights of a
father must be set for hearing not more than 45 days after the
petition to terminate is filed.
4)Requires that if a child is being considered for adoption by the
social service department or a licensed adoption agency, the
department or agency must first consider placement in the home of
a relative, as specified. Exempts from this provision a child who
has been adjudged a dependent of the juvenile court, for which
AB 2020
Page 3
there are relative placement requirements under the Welfare &
Institutions Code.
5)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.
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.
6)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.
7)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.
Provides that a guardianship case is to be consolidated with an
adoption case if the same child is the subject of each action.
Provides that the consolidated case should be heard in the court
where the adoption is pending.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar to
the version approved by the Senate, except as provided above.
FISCAL EFFECT : None
COMMENTS : This is the Academy of California Adoption Lawyers'
annual adoption bill. According to the author, this bill will
reduce both costs for adoptive parents and court time by correcting
inconsistent and unclear provisions of law.
The bill seeks to treat alleged and presumed parents the same for
purposes of determining the existence of a parent-child
relationship. A man is presumed to be a child's legal father in
several scenarios. A man is a presumed father if he has signed a
declaration of paternity or attempted to marry the child's mother.
He may also be a presumed father if he has received a child into his
home and openly held out the child as his own. While the statutory
scheme generally refers to presumed fathers, the presumptions apply
equally to presumed mothers. An alleged father is generally a
AB 2020
Page 4
biological father who does not qualify as a presumed father.
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 that case 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.
This bill eliminates that distinction and, for procedural purposes,
treats alleged parents like presumed parents. This change makes
California's statutory structure consistent with case law's expanded
rights of alleged parents and creates a consistent procedural
framework for establishing and terminating the rights of presumed
and alleged fathers.
Existing law requires that a petition to terminate parental rights
must be set for a hearing. However, there are instances when such a
hearing is effectively meaningless because it is impossible for the
parent to participate in the hearing. For example, if the identity
of the father is unknown, there are steps that must be taken to try
and identify the father or any possible father. However, if, after
inquiry, the father remains unknown, the court must enter an order
terminating parental rights. Alternatively, if a father is known,
but his whereabouts are unknown, the court may dispense with notice.
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. Finally, no
further notice of 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 pursuant to Family Code Section 7630
within 30 days.
In all of these situations, the alleged father will not receive
notice of the termination hearing, since, for the various reasons
discussed above, no further notice is required. Thus, the father or
alleged father will not receive notice of the hearing to terminate
parental rights and, as a result, cannot possibly appear at the
hearing. Neither the father nor the court receives any benefit from
holding these hearings and it is an unnecessary expenditure of
AB 2020
Page 5
scarce judicial resources. Thus, this bill correctly allows the
court to dispense with the hearing and issue an ex parte order
terminating parental rights in cases where the alleged father will
not have notice of the proceeding.
The bill also makes several other minor changes to adoption law.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0005538