BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 687|
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THIRD READING
Bill No: AB 687
Author: Fletcher (R), et al.
Amended: 8/30/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 7/5/11
AYES: Evans, Harman, Blakeslee, Corbett, Leno
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 70-0, 5/12/11 - See last page for vote
SUBJECT : Adoption
SOURCE : Academy of California Adoption Lawyers
DIGEST : This bill makes several changes to the adoption
process, including: (1) provides that when the inquiry is
being made into the natural father of a child who is being
proposed to be adopted that it also include the names and
whereabouts of every man presumed to be the father and the
efforts made to give notice of the proposed adoption; (2)
provides that notice of the adoption proceeding to the man
identified as the natural father is not required when the
man's relationship to the child has been previously
terminated or when the man has executed a written form to
waive notice, deny paternity, relinquish the child for
adoption, or consented to the adoption; (3) provides that a
licensed private adoption agency is authorized to process
non-dependent children adoptions through the Interstate
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Compact on the Placement of Children, in specified
circumstances; (4) provides that the court may issue an
adoption order nunc pro tunc in specified circumstances;
(5) provides that a petition challenging an adoption on the
basis of fraud must be commenced within three years of the
order, or 90 days of discovering the fraud; (6) provides
multiple venue options for an adult adoption; and (7)
provides that a new adoption birth certificate be issued in
a timely manner.
Senate Floor Amendments of 8/30/11 delete the requirement
that the State Registrar issue a new birth certificate upon
an order of adoption or readoption within 120 days.
ANALYSIS : Existing law provides that in an effort to
identify the natural father of a child being placed for
adoption, the court shall inquire of the mother and any
appropriate person from any of the following: (1) the
State Department of Social Services (DSS); (2) a licensed
county adoption agency; (3) the licensed adoption agency to
which the child is to be relinquished; and (4) in the case
of a stepparent adoption, at the option of the board of
supervisors, a licensed county adoption agency, the county
department designated by the board of supervisors to
administer the public social services program, or the
county probation department. (Family Code �FAM] Section
7663(a))
Existing law provides that inquiry into the identity of the
natural father shall include: (1) whether the mother was
married at the time of conception of the child or any time
after; (2) whether the mother was living with a man at the
time of conception or birth of the child; (3) whether the
mother has received support payments or promises of support
in connection with her pregnancy; and (4) whether any man
has formally or informally acknowledged or declared his
possible paternity of the child. (FAM Section 7663(b))
This bill also requires the inquiry into the identity of
the natural father of the child to include the names and
whereabouts of every man presumed or alleged to be the
father of the child, and the efforts made to give notice of
the proposed adoption to each man identified.
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Existing law provides that the department or the licensed
adoption agency must provide a report of its finding
regarding the inquiry into the identity of the child's
natural father to the court. (FAM Section 7663(c))
This bill provides that the agency that completes the
inquiry must file a written report with its finding to the
court.
Existing law provides that after the natural father has
been identified, or if more than one man is identified as a
possible father, each must be given notice of the
proceedings, unless he has been served with written notice
alleging that he is or could be the father of the child to
be adopted and has failed to bring an action to declare the
existence of the father and child relationship within 30
days after service of the notice, or the birth of the
child, whichever is later. If the alleged father fails to
appear, or fails to claim parental rights, his parental
rights will be terminated. (FAM Section 7664(a))
This bill consolidates provisions regarding when notice to
the alleged or presumed father is not required into FAM
Section 7666.
Existing law provides that nothing in this part shall
change the rights of a presumed father under FAM Section
7611. (FAM Section 7664(c))
This bill deletes the statement that "nothing in this part
shall change the rights of a presumed father under Family
Code Section 7611" since this conflicts with other sections
of the FAM, namely Section 7612(c) which provides that a
presumption under 7611 is rebutted by a judgment of
paternity.
Existing law provides that notice shall be given to every
person identified as the natural father or possible natural
father at least 10 days before the date stated in the
notice of the proceeding. Existing law provides that if a
person identified as the natural father or possible natural
father cannot be located or his whereabouts are unknown,
the court may issue an order dispensing with notice of that
person. (FAM Section 7666)
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This bill consolidates the provisions regarding when notice
to a man identified or alleged as the natural father shall
not be required including the following already contained
in existing law:
1. The whereabouts or identity of the alleged father are
unknown or cannot be ascertained; or
2. The alleged father has been served with written notice
of his alleged paternity and the proposed adoption, and
he has failed to bring an action within 30 days of
service of the notice or the birth of the child,
whichever is later.
This bill adds the following provisions for when notice to
a man identified or
alleged as the natural father is not required:
1. The man's relationship to the child has been previously
terminated or determined not to exist by a court; or
2. The alleged or presumed father has executed a written
form to waive notice, deny his paternity, relinquish the
child for adoption, or consent to the adoption of the
child.
Existing law provides that an action to terminate the
parental rights of a father of a child shall be set for
hearing not more than 45 days after filing of the petition
and completion of service. Existing law provides that
notice of the proceeding must be given to every person
identified as the natural father in accordance with the
Code of Civil Procedure for the service of process in a
civil action in this state at least 10 days before the date
stated in the notice of the proceeding. Proof of giving
the notice must be filed with the court before the petition
is heard. (FAM Sections 7666 and 7667)
This bill provides that an action to terminate the parental
rights of a father shall be set for hearing not more than
45 days after filing the petition, rather than the date of
service of process, however service of process must still
take place at least ten days before the hearing, with proof
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being filed with the court.
Existing law, Interstate Compact on the Placement of
Children (ICPC), provides that the DSS, is "the appropriate
public authority" responsible for the administration of
ICPC. (FAM Section 7900 et seq.)
This bill provides that when a full-service licensed
private adoption agency has provided adoption-related
services to a birth parent, non-dependent child, or
prospective adoptive parent, that agency is authorized to
process the paperwork for a non-dependent child pursuant to
the ICPC.
Existing law provides that the court may enter a judgment
for dissolution of marriage nunc pro tunc, even though the
judgment may have been previously entered, if the judgment
was not entered as soon as it could have by mistake,
negligence, or inadvertence. (FAM Section 2346)
This bill provides that a court may issue an order of
adoption nunc pro tunc where it will serve public policy
and the best interests of the adoptee for specified
purposes. This bill provides that an adoptee's eligibility
for any publicly-funded benefit program would not be
altered by the nunc pro tunc entry of an order of adoption.
This bill specifies that the pro tunc date shall not
precede the date upon which the parental rights of the
birth parent(s) were initially terminated, whether
voluntarily or involuntarily.
Existing law provides that in a stepparent adoption, the
consent of either or both birth parents shall be signed in
the presence of a notary public, court clerk, probation
officer, qualified court investigator, or county welfare
department staff member of any county. The above stated
individuals must immediately file the consent with the
clerk of the court where the adoption petition is filed.
Existing law provides that the clerk must immediately
notify the probation officer, or, the county welfare
department. Existing law provides that in an agency
adoption either birth parent may relinquish a child to the
department or a licensed adoption agency for adoption by a
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written statement signed before two subscribing witnesses
and acknowledged before an authorized official of the
department or agency. Existing law provides that in
independent adoptions an adoption service provider shall
also witness the signature of the adoption placement
agreement. (FAM Sections 9003, 8700(a) and 8801.7(a))
This bill adds an authorized representative of a licensed
adoption agency to the list of individuals who may witness
the consent in a stepparent adoption. This bill also
provides that the consent may be filed simultaneously with
the adoption request.
Existing law provides that a proceeding to vacate or set
aside an adoption on any ground, except fraud, shall be
commenced within one year after the entry of the adoption
order. Existing law provides that an action to vacate or
set aside an adoption, based on fraud, must be commenced
within three years after the adoption. (FAM Section 9102)
This bill provides that the action to vacate an adoption
based on fraud must be commenced within three years after
the adoption or within 90 days of discovery of the fraud,
whichever is earlier. This bill also requires the court to
first determine whether the facts presented are legally
sufficient to set aside the order of adoption. If the
facts are not legally sufficient, the petition must be
denied. If the facts are legally sufficient, the court's
final ruling must take into consideration the best
interests of the child, in conjunction with all other
factors required by law.
Existing law provides that the petition for an adult
adoption may be filed in the county in which either person
resides. (FAM Section 9321)
This bill also allows a person who is a resident of this
state to petition for an adult adoption to be filed in any
of the following:
1. The county where the prospective adoptive parent
resides;
2. The county where the proposed adoptee was born or
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resides at the time the petition is filed; or
3. The county where the office of the public or private
agency that placed the proposed adoptee for foster care
or adoption as a minor is located.
This bill also allows a petitioner who is not a resident of
this state to file a petition for an adult adoption with
the court in any of the above mentioned counties or the
county where the non-petitioning party resides.
Existing law provides that the DSS must check the Child
Abuse Central Index prior to granting a license to, or
otherwise approving, any individual to care for children.
Existing law also requires a county social worker to cause
a check of the Child Abuse Index to be conducted on all
persons over 18 years of age living in a home whenever a
child may be placed in the home of a relative or
prospective guardian or other person who is not a licensed
or certified foster parent. (Health and Safety Code
Section 1522.1)
This bill provides that a foster care license or
certification is not required if a nondependent child is
placed in the care of prospective adoptive parents who have
an approved adoption home study. This bill provides that
this placement must not exceed 30 days and if placement
does not occur within the 30 days, the licensed private
adoption agency must place the child in a home that is
licensed or certified for foster care, or the prospective
adoptive parent or parents must be appointed by the court
as the legal guardian or guardians of the child. This bill
also provides that the licensed private adoption agency
must conduct in-home supervisory visits no less than once
every 30 days.
Background
Every year the Academy of California Adoption Lawyers
(ACAL) seeks to clarify or modify provisions in the FAM
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.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 9/1/11)
Academy of California Adoption Lawyers (source)
Aspiranet HQ
Family Law Section of the California State Bar
ARGUMENTS IN SUPPORT : The author writes:
"This is the annual ACAL bill whose purpose is to address
primarily technical legal issues associated with
different forms of adoption. Some of the issues are
technical and seek to alleviate conflict within the
Family Code sections or clarification of sections.
Others address more substantive issues that due to either
a court decision or to a change in practice or
administration by the regulatory entities such as the
county adoption offices or the �California Department of
Social Services]. Finally some are strictly
administrative changes to expedite adoptions.
"Unfortunately there are instances where adoptive
families run into one of these situations and the costs
of litigating adds significantly to the adoption process.
This bill is �the] latest in a series of annual efforts
to clean up the adoption sections of the Family Code.
For the past 10 years, ACAL has sponsored this annual
legislation all of which have been signed into law."
The sponsor of this bill, ACAL, writes, "building families
through adoption is a very important process for many
families in our state today. Given the challenging
economic times, reducing the need to either litigate or
expend legal fees to sort through conflicting or ambiguous
sections of the Family Code, adds to the expense of
adoption that most families cannot afford. Creating an
opportunity for a child to be placed and accepted in a
family home is the best option. �This bill] ensures that
there are fewer technicalities that may serve as a barrier
in California law."
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ASSEMBLY FLOOR : 70-0, 5/12/11
AYES: Achadjian, Allen, Ammiano, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Cook, Davis, Dickinson, Donnelly, Eng,
Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines,
Galgiani, Gatto, Gordon, Grove, Hagman, Halderman, Hall,
Harkey, Hayashi, Hill, Huber, Hueso, Huffman, Jeffries,
Jones, Knight, Lara, Logue, Ma, Mansoor, Mendoza, Miller,
Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan,
Perea, V. Manuel P�rez, Silva, Skinner, Smyth, Solorio,
Swanson, Valadao, Wagner, Wieckowski, Williams, Yamada,
John A. P�rez
NO VOTE RECORDED: Alejo, Cedillo, Conway, Garrick, Gorell,
Roger Hern�ndez, Bonnie Lowenthal, Mitchell, Portantino,
Torres
RJG:kc 9/1/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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