BILL NUMBER: AB 1757 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Fletcher
FEBRUARY 17, 2012
An act to amend Section 8811 of the Family Code, relating
to family law. An act to amend Sections 7663, 7870,
7880, 8700, 8714, 8801.7, 8802, 8810, 8912, and 9211 of, to add
Section 8700.5 to, and to repeal Sections 7828 and 7829 of, the
Family Code, to amend Section 1513 of, and to add Se ction
1513.5 to, the Probate Code, and to amend Section 329 of the Welfare
and Institutions Code, relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
AB 1757, as amended, Fletcher. Family law: adoption.
(1) Existing law provides for the termination of parental rights
in adoption proceedings. In connection with those proceedings,
existing law requires a court to inquire of the mother and other
specified persons and entities in an effort to identify the natural
father of the child to be adopted.
This bill would permit a court to extend its inquiry as to the
child's parentage, in cases involving stepparent adoptions, to the
licensed clinical social worker or licensed marriage and family
therapist investigating the adoption, if applicable.
(2) Existing law provides that parental rights may be terminated
under certain circumstances, including where the child has been
abandoned, neglected, or abused by his or her parent or parents, and
if the child has been declared a dependent of the juvenile court.
This bill would eliminate superseded statutory provisions
concerning the termination of the parental rights of dependent
children.
(3) Under existing law, when a petition to declare a child free
from parental custody and control is filed, the person having custody
or control of the child must be served with a citation requiring
that person and the child to appear in court, except as specified. A
proceeding to declare a child free from parental custody and control
is required to be set for trial within 45 days of service of the
petition.
This bill would require the party or attorney responsible for
serving the citation in a proceeding to declare a child free from
parental custody and control to attempt to serve the citation
promptly. The bill would further require the hearing on the petition
be held within 45 days of the filing of the petition. Additionally,
this bill would authorize a court to issue an order in that
proceeding without a trial if service has been completed and no
interested person appears to contest the petition.
(4) Existing law requires an adoption service provider to witness
the signature of the adoption placement agreement and to offer to
interview the birth parent, as specified, after the child has been
placed with prospective adoptive parents. Existing law also prohibits
an adoption service provider from entering into a contractual
relationship with prospective adoptive parents, an attorney or
representative of prospective adoptive parents, or any individual or
organization that provides services to prospective adoptive parents
for a fee, except for advising and counseling the birth parents.
This bill would permit a licensed private adoption agency acting
as an adoption service provider to render services to a placing birth
parent or parents and to the prospective adoptive parent or parents
if the placing birth parent or parents agree in writing, the placing
birth parent or parents are assigned different social workers than
the prospective adoptive parent or parents, and the placing birth
parent or parents are represented by independent legal counsel at no
cost to the birth parent or parents.
(5) Existing law provides that, after a consent to an adoption is
signed by the birth parent or parents, the birth parent or parents
signing the consent have 30 days to take one of specified actions,
including signing a waiver of the right to revoke consent. Under
existing law, a waiver must be signed in the presence of a
representative of the department or the delegated county adoption
agency, the adoption service provider who advised the birth mother
and witnessed the signing of the consent to the adoption if the birth
parent or parents are represented by independent legal counsel, or
if the birth parent or parents are represented by independent legal
counsel, the waiver can also be signed in the presence of a judicial
officer of the court of record or an adoption service provider.
This bill would permit a relinquishing birth parent to sign a
waiver of the right to revoke relinquishment in the presence of a
representative of the department or delegated county adoption agency,
a public adoption agency of another state, or, if the birth parent
or parents are represented by independent legal counsel, an
authorized representative of a licensed private adoption agency in or
outside of California, or by a judicial officer of a court in or
outside of California. The bill would also set forth the role of
independent legal counsel, as specified. The bill would set forth a
specified certificate for that counsel to use in those proceedings.
To the extent that this bill would impose new duties on county
agencies, it would impose a state-mandated local program.
(6) Under existing law, a petition for adoption may be filed in
the county in which the petitioner resides, where the birth parent or
parents relinquished the child, where the placing birth parent or
parents resided when the adoption placement agreement was signed,
where the adoption agency, department, or public adoption agency is
located, or, in the case of a dependent child, in the county where
the child was freed for adoption.
This bill would revise and consolidate these provisions by
providing that an adoption petition of a nondependent child may be
filed in any of those locations. The bill would not alter the venue
provisions for the adoption of dependent children.
(7) Existing law requires prospective adoptive parents to pay a
fee to the department or delegated county adoption agency for the
cost of investigating the adoption petition. Petitioners with valid
preplacement evaluations are charged a lesser fee for that
investigation.
Under this bill, petitioners with an agency adoption home study
less than 2 years old would also be eligible for this lesser fee. In
addition, this bill would provide that petitioners with a valid
preplacement evaluation are eligible for the lesser fee only if that
evaluation is less than one year old.
(8) Existing law permits a court investigator, probation officer,
or domestic relations investigator to investigate and file a report
containing recommendations concerning a proposed guardianship of a
person. If the investigation reveals that any party to the proposed
guardianship is alleging that the minor's parent is unfit, the court
is required to refer the case to the county agency designated to
investigate potential dependencies. Under existing law, the
guardianship proceedings cannot be completed until the dependency
investigation is completed and the probate court receives the agency'
s report.
This bill would give a court in a guardianship proceeding
involving a minor discretion to order an investigation by Child
Protective Services. Under the bill, the probate court could take any
reasonable steps the court deemed necessary to protect the child's
safety, including appointing a temporary guardian or issuing a
temporary restraining order. The bill would also provide that the
author of any guardianship investigation reports and dependency
investigation reports could be examined in probate court concerning
the report, and would authorize the court to make the final decision
regarding guardianship. Further, this bill would make all
guardianship investigation reports and dependency investigation
reports confidential.
(9) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Existing law governs the adoption of unmarried minors. Under
existing law, the State Department of Social Services or a delegated
county adoption agency must fingerprint and perform a criminal
background investigation on a prospective adoptive parent. Existing
law also prohibits the State Department of Social Services and
delegated county adoption agencies from giving final approval to an
adoption if a prospective adoptive parent or an adult who lives in
the prospective adoptive home has specified criminal convictions.
This bill would make technical, nonsubstantive changes to these
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7663 of the Family
Code is amended to read:
7663. (a) In an effort to identify the natural father, the court
shall cause inquiry to be made of the mother and any other
appropriate person by one of the following:
(1) The State Department of Social Services.
(2) A licensed county adoption agency.
(3) The licensed adoption agency to which the child is to be
relinquished.
(4) In the case of a stepparent adoption, at the option
of the board of supervisors, the licensed
clinical social worker or licensed marriage and family therapist who
is performing the investigation pursuant to Section 9001, if
applicable. In the case of a stepparent adoption in which no licensed
clinical social worker or licensed marriage and family therapist is
performing the investigation pursuant to Section 9001, the board of
supervisors may assign those inquiries to 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.
(b) The inquiry shall include all of the following:
(1) Whether the mother was married at the time of conception of
the child or at any time thereafter.
(2) Whether the mother was cohabiting 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 with respect to the child or in connection with her
pregnancy.
(4) Whether any man has formally or informally acknowledged or
declared his possible paternity of the child.
(5) The names and whereabouts, if known, 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.
(c) The agency that completes the inquiry shall file a written
report of the findings with the court.
SEC. 2. Section 7828 of the Family Code
is repealed.
7828. (a) A proceeding under this part may be brought where all
of the following requirements are satisfied:
(1) The child is one who has been in out-of-home placement under
the supervision of the juvenile court, the county welfare department,
or other public or private licensed child-placing agency for a
one-year period.
(2) The court finds that return of the child to the child's parent
or parents would be detrimental to the child and that the parent or
parents have failed during the one-year period, and are likely to
fail in the future, to maintain an adequate parental relationship
with the child, which includes providing both a home and care and
control for the child.
(b) If the child has been adjudged a dependent child of the
juvenile court and placed in out-of-home placement pursuant to
Section 361 of the Welfare and Institutions Code, the one-year period
is calculated from the date of the dispositional hearing at which
the child was placed in out-of-home placement pursuant to that
section.
(c) If the child is in placement under the supervision of a county
welfare department or other public or private licensed child-placing
agency, pursuant to a voluntary placement, as described in Section
16507.4 of the Welfare and Institutions Code, the one-year period is
calculated from the date the child entered out-of-home placement.
(d) Trial placement of the child in the physical custody of the
parent or visitation of the child with the parent during the one-year
period, when the trial placement or visitation does not result in
permanent placement of the child with the parent, does not interrupt
the running of the one-year period.
(e) The court shall make a determination that reasonable services
have been provided or offered to the parents which were designed to
aid the parents to overcome the problems which led to the deprivation
or continued loss of custody and that despite the availability of
these services, return of the child to the parents would be
detrimental to the child. The probation officer or social worker
currently assigned to the case of the child shall appear at the
termination proceedings. If the child has been adjudged to be a
dependent child of the court pursuant to Section 300 of the Welfare
and Institutions Code, the court shall review and consider the
contents of the juvenile court file in determining if the services
offered were reasonable under the circumstances.
SEC. 3. Section 7829 of the Family Code
is repealed.
7829. A proceeding under this part may be brought where both of
the following requirements are satisfied:
(a) The child has been found to be a dependent child of the
juvenile court.
(b) The juvenile court has determined, pursuant to paragraph (3),
(4), or (5) of subdivision (b) of Section 361.5 of the Welfare and
Institutions Code, that reunification services shall not be provided
to the child's parent or guardian.
SEC. 4. Section 7870 of the Family Code
is amended to read:
7870. (a) It is the public policy of this state that judicial
proceedings to declare a child free from parental custody and control
shall be fully determined as expeditiously as possible.
(b) Notwithstanding any other provision of law, a proceeding to
declare a child free from parental custody and control pursuant to
this part shall be set for trial hearing
not more than 45 days after filing notification
therefor and completion of service thereon in the manner prescribed
by law for service of civil process. of the petition.
If, at the time set for hearing, or at any continuance thereof,
service has been completed and no interested person appears to
contest, the court may issue an order based on the verified pleadings
and any other evidence as may be submitted. If any interested person
appears to contest the matter, the court shall set the matter for
trial. The matter so set has precedence over all other civil
matters on the date set for trial.
(c) The court may continue the proceeding as provided in Section
7864 or Section 7871.
SEC. 5. Section 7880 of the Family Code
is amended to read:
7880. (a) Upon the filing of the petition, a citation shall issue
requiring any person having the custody or control of the child, or
the person with whom the child is, to appear at a time and place
stated in the citation.
(b) The citation shall also require the person to appear with the
child except that, if the child is under the age of 10 years,
appearance with the child is required only upon order of the court
after necessity has been shown.
(c) Service of the citation shall be made in the manner prescribed
by law for service of civil process at least 10 days before the time
stated in the citation for the appearance. The party or
attorney responsible for serving the citation shall attempt to do so
in a timely manner in order to maximize the response time available
to the party being served.
SEC. 6. Section 8700 of the Family Code
is amended to read:
8700. (a) Either birth parent may relinquish a child to the
department or a licensed adoption agency for adoption by a written
statement signed before two subscribing witnesses and acknowledged
before an authorized official of the department or agency. The
relinquishment, when reciting that the person making it is entitled
to the sole custody of the child and acknowledged before the officer,
is prima facie evidence of the right of the person making it to the
sole custody of the child and the person's sole right to relinquish.
(b) A relinquishing parent who is a minor has the right to
relinquish his or her child for adoption to the department or a
licensed adoption agency, and the relinquishment is not subject to
revocation by reason of the minority.
(c) If a relinquishing parent resides outside this state and the
child is being cared for and is or will be placed for adoption by the
department or a licensed adoption agency, the relinquishing parent
may relinquish the child to the department or agency by a written
statement signed by the relinquishing parent before a notary on a
form prescribed by the department, and previously signed by an
authorized official of the department or agency, that signifies the
willingness of the department or agency to accept the relinquishment.
(d) If a relinquishing parent and child reside outside this state
and the child will be cared for and will be placed for adoption by
the department or a licensed adoption agency, the relinquishing
parent may relinquish the child to the department or agency by a
written statement signed by the relinquishing parent, after that
parent has satisfied the following requirements:
(1) Prior to signing the relinquishment, the relinquishing parent
shall have received, from a representative of an agency licensed or
otherwise approved to provide adoption services under the laws of the
relinquishing parent's state of residence, the same counseling and
advisement services as if the relinquishing parent resided in this
state.
(2) The relinquishment shall be signed before a representative of
an agency licensed or otherwise approved to provide adoption services
under the laws of the relinquishing parent's state of residence
whenever possible or before a licensed social worker on a form
prescribed by the department, and previously signed by an authorized
official of the department or agency, that signifies the willingness
of the department or agency to accept the relinquishment.
(e) (1) The relinquishment authorized by this section has no
effect until a certified copy is sent to, and filed with, the
department. The licensed adoption agency shall send that copy by
certified mail, return receipt requested, or by overnight courier or
messenger, with proof of delivery, to the department no earlier than
the end of the business day following the signing thereof. The agency
shall inform the birth parent that during this time period he or she
may request that the relinquishment be withdrawn and that, if he or
she makes the request, the relinquishment shall be withdrawn. The
relinquishment shall be final 10 business days after receipt of the
filing by the department, unless any of the following apply:
(A) The department sends written acknowledgment of receipt of the
relinquishment prior to the expiration of that 10-day period, at
which time the relinquishment shall be final.
(B) A longer period of time is necessary due to a pending court
action or some other cause beyond control of the department.
(C) The birth parent signs a waiver of right to revoke
relinquishment pursuant to Section 8700.5, in which case the
relinquishment shall become final as provided in that section.
(2) After the relinquishment is final, it may be rescinded only by
the mutual consent of the department or licensed adoption agency to
which the child was relinquished and the birth parent or parents
relinquishing the child.
(f) The relinquishing parent may name in the relinquishment the
person or persons with whom he or she intends that placement of the
child for adoption be made by the department or licensed adoption
agency.
(g) Notwithstanding subdivision (e), if the relinquishment names
the person or persons with whom placement by the department or
licensed adoption agency is intended and the child is not placed in
the home of the named person or persons or the child is removed from
the home prior to the granting of the adoption, the department or
agency shall mail a notice by certified mail, return receipt
requested, to the birth parent signing the relinquishment within 72
hours of the decision not to place the child for adoption or the
decision to remove the child from the home.
(h) The relinquishing parent has 30 days from the date on which
the notice described in subdivision (g) was mailed to rescind the
relinquishment.
(1) If the relinquishing parent requests rescission during the
30-day period, the department or licensed adoption agency shall
rescind the relinquishment.
(2) If the relinquishing parent does not request rescission during
the 30-day period, the department or licensed adoption agency shall
select adoptive parents for the child.
(3) If the relinquishing parent and the department or licensed
adoption agency wish to identify a different person or persons during
the 30-day period with whom the child is intended to be placed, the
initial relinquishment shall be rescinded and a new relinquishment
identifying the person or persons completed.
(i) If the parent has relinquished a child, who has been found to
come within Section 300 of the Welfare and Institutions Code or is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code, to the
department or a licensed adoption agency for the purpose of adoption,
the department or agency accepting the relinquishment shall provide
written notice of the relinquishment within five court days to all of
the following:
(1) The juvenile court having jurisdiction of the child.
(2) The child's attorney, if any.
(3) The relinquishing parent's attorney, if any.
(j) The filing of the relinquishment with the department
terminates all parental rights and responsibilities with regard to
the child, except as provided in subdivisions (g) and (h).
(k) The department shall adopt regulations to administer the
provisions of this section.
SEC. 7. Section 8700.5 is added to the
Family Code , to read:
8700.5. (a) A relinquishing birth parent may elect to sign a
waiver of the right to revoke relinquishment in the presence of any
of the following:
(1) A representative of the department or the delegated county
adoption agency, or any public adoption agency of another state.
(2) A judicial officer of a court of record, within or outside of
California, if the birth parent is represented by independent legal
counsel.
(3) An authorized representative of a licensed private adoption
agency within or outside of California, including a representative of
the adoption agency that witnessed or accepted the relinquishment,
if the birth parent is represented by independent legal counsel.
(b) The waiver of the right to revoke relinquishment may not be
signed until the department, delegated county adoption agency, or
public adoption agency of another state has completed an interview,
unless the waiver is signed in the presence of a judicial officer of
a court of record of any state or an authorized representative of a
private adoption agency licensed within or outside of California. If
the waiver is signed in the presence of a judicial officer, the
interview and witnessing of the signing of the waiver shall be
conducted by the judicial officer. If the waiver is signed in the
presence of an authorized representative of a licensed adoption
agency, the interview shall be conducted by the independent legal
counsel for the birth parent or parents, who shall:
(1) Review the waiver with the birth parent or parents.
(2) Counsel the birth parent or parents about the nature of the
intended waiver.
(3) Sign and deliver to the birth parent or parents and the
licensed adoption agency a certificate in substantially the following
form:
I, (name of attorney), have counseled my client, (name of client),
about the nature and legal effect of the waiver of the right to
revoke the relinquishment for adoption. I am so disassociated from
the interest of the prospective adoptive parent(s) and the licensed
adoption agency as to be in a position to advise my client
impartially and confidentially as to the consequences of the waiver.
My client is aware that California law provides an indeterminate
period, usually 2 to 10 business days, during which a birth parent
may revoke a relinquishment for adoption. On the basis of this
counsel, I conclude that it is the intent of my client to waive the
right to revoke, and to make a permanent and irrevocable
relinquishment for adoption. My client understands that upon signing
this waiver, he or she will not be able to regain custody of the
child unless the prospective adoptive parent or parents agree to
withdraw the petition for adoption or the court denies the adoption
petition.
(c) If the placing birth parent signs the waiver in front of a
judicial officer or the department, the relinquishment shall become
final and irrevocable at the time the waiver is signed. If the waiver
is signed in the presence of an authorized representative of a
private licensed adoption agency, the relinquishment shall become
final and irrevocable at the close of the next business day.
(d) The licensed adoption agency shall submit the waiver and
certificate to the department with the relinquishment, unless the
relinquishment was submitted to the department before the waiver was
signed, in which case the waiver and certificate shall be submitted
to the department no later than two business days after signing.
SEC. 8. Section 8714 of the Family Code
is amended to read:
8714. (a) A person desiring to adopt a child may for that purpose
file a petition in the county in which the petitioner
resides or, if the petitioner is not a resident of this state, in the
county in which the birth parent or birth parents resided when the
relinquishment of parental rights for the purpose of adoption was
signed an adoption request in a county authorized by
Section 9211 . Where If a child
has been adjudged to be a dependent of the juvenile court pursuant to
Section 300 of the Welfare and Institutions Code, and has thereafter
been freed for adoption by the juvenile court, the petition may be
filed either in the county where the petitioner resides or in the
county where the child was freed for adoption.
(b) The court clerk shall immediately notify the department at
Sacramento in writing of the pendency of the proceeding and of any
subsequent action taken.
(c) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption under subdivision (a).
(d) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth. The name the child had
before adoption shall appear in the joinder signed by the licensed
adoption agency.
(e) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding shall
be consolidated with the adoption proceeding.
(f) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 9. Section 8801.7 of the Family
Code is amended to read:
8801.7. (a) An adoption service provider shall also witness the
signature of the adoption placement agreement and offer to interview
the birth parent after the placement of the child with prospective
adoptive parents. The interview shall occur within 10 working days
after the placement of the child for adoption and shall include a
consideration of any concerns or problems the birth parent has with
the placement, a readvisement of the rights of the birth parent, and
the taking of the health and social history of the birth parent, if
not taken previously.
(b) The adoption service provider shall immediately notify the
department or delegated county adoption agency if the birth parent is
not interviewed as provided in subdivision (a) or if there are any
concerns regarding the placement. If the birth parent wishes to
revoke the consent, the adoption service provider shall assist the
birth parent in obtaining the return of the child.
(c) The adoption service provider owes a very high duty of care to
the birth parent being advised, regardless of who pays the provider'
s fees. The duty of care specifically does not include a duty to
investigate information provided by the birth parents, prospective
adoptive parents, or their attorneys or agents. No adoption
service provider shall have a contractual relationship with
prospective adoptive parents, an attorney or representative for
prospective adoptive parents, or any individual or organization
providing services of any type to prospective adoptive parents for
which the adoptive parents are paying a fee, except as relates to the
payment of the fees for the advising and counseling of the birth
parents.
(d) This section shall become operative on January 1, 1995.
(d) Except as provided in subdivision (e), no adoption service
provider shall have a contractual relationship with prospective
adoptive parents, an attorney or representative for prospective
adoptive parents, or any individual or organization providing
services of any type to prospective adoptive parents for which the
adoptive parents are paying a fee, except as relates to the payment
of fees for the advising and counseling of the birth parents.
(e) A licensed private adoption agency acting as an adoption
service provider may render services to the placing birth parent or
parents and to the prospective adoptive parent or parents if all of
the following requirements are met:
(1) The placing birth parent or parents agree in writing that the
agency may provide services to the prospective adoptive parent or
parents.
(2) The agency assigns different social workers to the placing
birth parent or parents and the prospective adoptive parent or
parents.
(3) The placing birth parent or parents are represented by
independent counsel at no cost pursuant to Section 8800.
SEC. 10. Section 8802 of the Family
Code is amended to read:
8802. (a) (1) Any of the following persons who desire to adopt a
child may, for that purpose, file a petition in the county
in which the petitioner resides or, if the petitioner is not a
resident of this state, in the county in which the placing birth
parent or birth parents resided when the adoption placement agreement
was signed, or the county in which the placing birth parent or birth
parents resided when the petition was filed :
file an adoption request in a county au
thorized by Section 9211:
(A) An adult who is related to the child or the child's half
sibling by blood or affinity, including all relatives whose status is
preceded by the words "step," "great," "great-great," or "grand," or
the spouse of any of these persons, even if the marriage was
terminated by death or dissolution.
(B) A person named in the will of a deceased parent as an intended
adoptive parent where the child has no other parent.
(C) A person with whom a child has been placed for adoption.
(D) (i) A legal guardian who has been the child's legal guardian
for more than one year.
(ii) If the child is alleged to have been abandoned pursuant to
Section 7822, a legal guardian who has been the child's legal
guardian for more than six months. The legal guardian may file a
petition pursuant to Section 7822 in the same court and concurrently
with a petition under this section.
(iii) However, if the parent nominated the guardian for a purpose
other than adoption for a specified time period, or if the
guardianship was established pursuant to Section 360 of the Welfare
and Institutions Code, the guardianship shall have been in existence
for not less than three years.
(2) If the child has been placed for adoption, a copy of the
adoptive placement agreement shall be attached to the petition. The
court clerk shall immediately notify the department at Sacramento in
writing of the pendency of the proceeding and of any subsequent
action taken.
(3) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
(b) The petition shall contain an allegation that the petitioners
will file promptly with the department or delegated county adoption
agency information required by the department in the investigation of
the proposed adoption. The omission of the allegation from a
petition does not affect the jurisdiction of the court to proceed or
the validity of an adoption order or other order based on the
petition.
(c) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth and the name the child had
before adoption.
(d) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for
guardianship or temporary guardianship filed after the adoption
petition. The guardianship proceeding shall be consolidated with the
adoption proceeding, and the consolidated case shall be heard and
decided in the court in which the adoption is pending.
(e) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 11. Section 8810 of the Family
Code is amended to read:
8810. (a) Except as otherwise provided in this section, whenever
a petition is filed under this chapter for the adoption of a child,
the petitioner shall pay a nonrefundable fee to the department or to
the delegated county adoption agency for the cost of investigating
the adoption petition. Fifty percent of the payment shall be made to
the department or delegated county adoption agency at the time the
adoption petition is filed, and the remaining balance shall be paid
no later than the date determined by the department or the delegated
county adoption agency in an amount as follows:
(1) For petitions filed on and after October 1, 2008, four
thousand five hundred dollars ($4,500).
(2) For petitioners who have a valid preplacement evaluation
less than one year old or a valid agency adoption home study less
than two years old at the time of filing a petition pursuant to
Section 8811.5, one thousand five hundred fifty dollars ($1,550) for
a postplacement evaluation pursuant to Sections 8806 and 8807.
(b) Revenues produced by fees collected by the department pursuant
to subdivision (a) shall be used, when appropriated by the
Legislature, to fund only the direct costs associated with the state
program for independent adoptions. Revenues produced by fees
collected by the delegated county adoption agency pursuant to
subdivision (a) shall be used by the county to fund the county
program for independent adoptions.
(c) The department or delegated county adoption agency may reduce
the fee, to no less than five hundred dollars ($500) when the
prospective adoptive parents are very low income, according to the
income limits published by the Department of Housing and Community
Development, and making the required payment would be detrimental to
the welfare of an adopted child. The department shall develop
additional guidelines regarding income and assets to determine the
financial criteria for reduction of the fee under this subdivision.
(d) This section shall become operative on October 1, 2008.
SEC. 12. Section 8912 of the Family
Code is amended to read:
8912. (a) A person desiring to adopt a child may for
that purpose file a petition in the county in which the petitioner
resides. An international adoption or readoption
request may be filed by a resident of this state in a county
authorized by Section 9211. The court clerk shall
immediately notify the department at Sacramento in writing of the
pendency of the proceeding and of any subsequent action taken.
(b) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth. The name the child had
before adoption shall appear in the joinder signed by the licensed
adoption agency.
(c) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding shall
be consolidated with the adoption proceeding.
(d) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
(e) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
SEC. 13. Section 9211 of the Family
Code is amended to read:
9211. (a) A person
who is a resident of this state may file a petition for the adoption
of a child An adoption request for the adoption of a
non dependent minor may be filed with the court in
the county in which one of the following applies:
(1)
(a) The petitioner resides.
(2)
(b) The child was born or resides at the time of
filing.
(3)
(c) An office of the agency that placed the child for
adoption is located.
(4)
(d) An office of the department or a public adoption
agency that is investigating the petition is located.
(b) A petitioner who is not a resident of this state may file a
petition for the adoption of a child with the court in a county in
which paragraph (2), (3), or (4) of subdivision (a) applies.
(e) The county in which a placing birth parent or parents resided
when the adoptive placement agreement, consent, or relinquishment was
signed.
(f) The county in which a placing birth parent or parents resided
when the petition was filed.
(g) The county in which the child was freed for adoption.
SEC. 14. Section 1513 of the Probate
Code is amended to read:
1513. (a) Unless waived by the court, a court investigator,
probation officer, or domestic relations investigator may
shall make an investigation and file with the
court a report and recommendation concerning each proposed
guardianship of the person or guardianship of the estate.
Investigations where the proposed guardian is a relative shall be
made by a court investigator. Investigations where the proposed
guardian is a nonrelative shall be made by the county agency
designated to investigate potential dependency. The report for the
guardianship of the person shall include, but need not be limited to,
an investigation and discussion of all of the following:
(1) A social history of the guardian.
(2) A social history of the proposed ward, including, to the
extent feasible, an assessment of any identified developmental,
emotional, psychological, or educational needs of the proposed ward
and the capability of the petitioner to meet those needs.
(3) The relationship of the proposed ward to the guardian,
including the duration and character of the relationship, where
applicable, the circumstances whereby physical custody of the
proposed ward was acquired by the guardian, and a statement of the
proposed ward's attitude concerning the proposed guardianship, unless
the statement of the attitude is affected by the proposed ward's
developmental, physical, or emotional condition.
(4) The anticipated duration of the guardianship and the plans of
both natural parents and the proposed guardian for the stable and
permanent home for the child. The court may waive this requirement
for cases involving relative guardians.
(b) The report shall be read and considered by the court prior to
ruling on the petition for guardianship, and shall be reflected in
the minutes of the court. The person preparing the report may be
called and examined by any party to the proceeding.
(b) At the initiation of guardianship proceedings, if the child is
or may be described by Section 300 of the Welfare and Institutions
Code, the court may refer the matter to the local child welfare
services agency to initiate an investigation of the referral pursuant
to Sections 328 and 329 of the Welfare and Institutions Code and to
report the findings of that investigation to the court. Pending
completion of the investigation, the court may take any reasonable
steps it deems appropriate to protect the child's safety, including,
but not limited to, appointment of a temporary guardian or issuance
of a temporary restraining order. If dependency proceedings are
initiated, the guardianship proceedings shall be stayed in accordance
with Section 304 of the Welfare and Institutions Code. Nothing in
this section shall affect the applicability of Section 16504 or 16506
of the Welfare and Institutions Code.
(c) If the investigation finds that any party to the proposed
guardianship alleges the minor's parent is unfit, as defined by
Section 300 of the Welfare and Institutions Code, the case shall be
referred to the county agency designated to investigate potential
dependencies. Guardianship proceedings shall not be completed until
the investigation required by Sections 328 and 329 of the Welfare and
Institutions Code is completed and a report is provided to the court
in which the guardianship proceeding is pending.
(c) Prior to ruling on the petition for guardianship, the court
shall read and consider all reports submitted pursuant to this
section, which shall be reflected in the minutes or stated on the
record. Any person who reports to the court pursuant to this section
may be called and examined by any party to the proceeding. After
considering the reports and any other evidence received, the court
shall make an independent determination as to whether a guardianship
is reasonable or necessary to serve the best interests of the minor.
(d) The report All reports
authorized by this section is are
confidential and shall only be made available to persons who have
been served in the proceedings or their attorneys. The clerk of the
court shall make provisions for the limitation of the report
to limit access to the reports exclusively to
persons entitled to its receipt. The reports
shall be made available to all parties entitled to receipt no less
than three court days before the hearing on the guardianship
petition.
(e) For the purpose of writing the either
report authorized by this section, the person making the
investigation and report shall have access to the proposed ward's
school records, probation records, and public and private social
services records, and to an oral or written summary of the proposed
ward's medical records and psychological records prepared by any
physician, psychologist, or psychiatrist who made or who is
maintaining those records. The physician, psychologist, or
psychiatrist shall be available to clarify information regarding
these records pursuant to the investigator's responsibility to gather
and provide information for the court.
(f) This section does not apply to guardianships resulting from a
permanency plan for a dependent child pursuant to Section 366.26 of
the Welfare and Institutions Code.
(g) For purposes of this section, a "relative" means a person who
is a spouse, parent, stepparent, brother, sister, stepbrother,
stepsister, half-brother, half-sister, uncle, aunt, niece, nephew,
first cousin, or any person denoted by the prefix "grand" or "great,"
or the spouse of any of these persons, even after the marriage has
been terminated by death or dissolution.
(h) In an Indian child custody proceeding, the
any person making the an
investigation and report shall consult with the Indian child's tribe
and include in the report information provided by the tribe.
SEC. 15. Section 1513.5 is added to the
Probate Code , to read:
1513.5. (a) If the child who is the subject of a guardianship
proceeding is or may be described by Section 300 of the Welfare and
Institutions Code, the court may refer the matter to the local child
welfare services agency to conduct an investigation of the
allegations pursuant to Section 328 of the Welfare and Institutions
Code and to report the findings of that investigation to the probate
court.
(b) After a referral made pursuant to subdivision (a), and pending
completion of the investigation, the court may take any reasonable
steps it deems appropriate to protect the child's safety, including,
but not limited to, appointment of a temporary guardian or issuance
of a temporary restraining order.
(c) If a dependency proceeding is initiated, the guardianship
proceeding shall be stayed in accordance with Section 304 of the
Welfare and Institutions Code. If a dependency proceeding is not
initiated, the probate court shall retain jurisdiction to hear the
guardianship matter.
(d) Nothing in this section shall affect the applicability of
Section 16504 or 16506 of the Welfare and Institutions Code.
SEC. 16. Section 329 of the Welfare and
Institutions Code is amended to read:
329. Whenever any person applies to the social worker to commence
proceedings in the juvenile court, the application shall be in the
form of an affidavit alleging that there was or is within the county,
or residing therein, a child within the provisions of Section 300,
and setting forth facts in support thereof. The social worker shall
immediately investigate as he or she deems necessary to determine
whether proceedings in the juvenile court should be commenced. If the
social worker does not take action under Section 330
301 and does not file a petition in the juvenile
court within three weeks after the application, he or she shall
endorse upon the affidavit of the applicant his or her decision not
to proceed further , including any recommendation to the
applicant to consider commencing a probate guardianship for the
child, and his or her reasons therefor and shall immediately
notify the applicant of the action taken or the decision rendered by
him or her under this section. The social worker shall retain the
affidavit and his or her endorsement thereon for a period of 30 days
after notifying the applicant.
SEC. 17. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.
SECTION 1. Section 8811 of the Family Code is
amended to read:
8811. (a) The department or delegated county adoption agency
shall require each person filing an adoption petition to be
fingerprinted and shall secure from the appropriate law enforcement
agency any criminal record of that person to determine whether the
person has ever been convicted of a crime other than a minor traffic
violation. The department or delegated county adoption agency may
also secure the person's full criminal record, if any. Any
federal-level criminal offender record requests to the Department of
Justice shall be submitted with fingerprint images and related
information required by the Department of Justice for the purposes of
obtaining information as to the existence and content of a record of
an out-of-state or federal conviction or arrest of a person or
information regarding any out-of-state or federal crimes or arrests
for which the Department of Justice establishes that the person is
free on bail, or on his or her own recognizance pending trial or
appeal. The Department of Justice shall forward to the Federal Bureau
of Investigation any requests for federal summary criminal history
information received pursuant to this section. The Department of
Justice shall review the information returned from the Federal Bureau
of Investigation and shall compile and disseminate a response to the
department or delegated county adoption agency.
(b) Notwithstanding subdivision (c), the criminal record, if any,
shall be taken into consideration when evaluating the prospective
adoptive parent, and an assessment of the effects of any criminal
history on the ability of the prospective adoptive parent to provide
adequate and proper care and guidance to the child shall be included
in the report to the court.
(c) (1) Under no circumstances shall the department or a delegated
county adoption agency give final approval for an adoptive placement
in any home where the prospective adoptive parent or any adult
living in the prospective adoptive home has either of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means the violent crimes
contained in clause (i) of subparagraph (A), and subparagraph (B), of
paragraph (1) of subdivision (g) of Section 1522 of the Health and
Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug- or alcohol-related offense.
(2) This subdivision shall become operative on October 1, 2008,
and shall remain operative only to the extent that compliance with
its provisions is required by federal law as a condition of receiving
funding under Title IV-E of the federal Social Security Act (42
U.S.C. 670 and following).
(d) Any fee charged by a law enforcement agency for fingerprinting
or for checking or obtaining the criminal record of the petitioner
shall be paid by the petitioner. The department or delegated county
adoption agency may defer, waive, or reduce the fee when its payment
would cause economic hardship to the prospective adoptive parents
detrimental to the welfare of the adopted child, when the child has
been in the foster care of the prospective adoptive parents for at
least one year, or if necessary for the placement of a special-needs
child.