BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1757 (Fletcher)
As Amended April 11, 2012
Hearing Date: June 26, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Family Law: Adoption
DESCRIPTION
This bill, sponsored by the Academy of California Adoption
Lawyers, would make several changes to adoption processes and
adoptive placement considerations, including:
authorizing a licensed social worker or marriage and family
therapist who is performing the investigation for stepparent
adoption to help identify a child's natural father;
clarifying the timelines for setting initial hearings and
contested trials in cases involving the termination of
parental rights of presumed fathers and mothers by requiring
that a proceeding to declare a child free from parental
custody and control be set for hearing not more than 45 days
after filing of the petition, and authorizing a court to issue
an order based on the pleading if no interested person
contests the petition;
allowing birth parents that use an agency for an adoption to
waive their right to revoke relinquishment of their child for
adoption;
clarifying the venue for adoption petitions filed on behalf
of a nondependent minor;
authorizing the court to refer any case of possible child
abuse or neglect to the child welfare agency, and allowing the
court, pending the results of that investigation, to take any
reasonable steps to protect the child's safety; and
other clarifying and conforming changes.
BACKGROUND
(more)
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Every year, the Academy of California Adoption Lawyers (ACAL)
seeks to clarify or modify provisions in the Family and related
codes 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. Accordingly,
this bill, sponsored by ACAL, would make various clarifying
changes related to adoption, including clarifying the probate
court's role when a child in a guardianship proceeding may fall
within the jurisdiction of the dependency court, authorizing
birth parents to waive their right to revoke consent in agency
adoptions, and consolidating venue provisions for adoption
petitions into one code section.
CHANGES TO EXISTING LAW
1.Existing law requires that efforts be made to identify the
natural father in a proceeding to terminate parental rights as
part of an adoption proceeding. In the case of a step-parent
adoption, existing law allows the board of supervisors to
determine who should attempt to identify the father, as
specified. (Fam. Code Sec. 7663.)
This bill would authorize a licensed social worker or marriage
and family therapist performing an investigation in a
stepparent adoption to help identify the child's natural
father.
2.Existing law provides a process for terminating the parental
rights of dependent children. (Welf. & Inst. Code Sec.
366.26.)
Existing law provides that a proceeding to declare a child
free from parental custody and control be set for trial within
45 days after the filing of the petition and completion of
service of process. (Fam. Code Sec. 7870.)
This bill would require that initial hearings and contested
trials in cases involving termination of parental rights of
presumed fathers and mothers be set for hearing not more than
45 days after the filing of the petition. This bill would
require the court to set the matter for trial if an interested
person contests the petition, but would authorize the court to
issue an order based on the pleading if no interested person
contests.
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3.Existing law provides that a birth parent, who is represented
by independent counsel, may waive the right to revoke consent
to an independent adoption by signing the waiver in the
presence of a representative of the Department of Social
Services or the delegated county adoption agency; a judicial
officer if the birth parent is represented by independent
legal counsel; or an adoption service provider. (Fam. Code
Sec. 8814.5.)
This bill would allow a birth parent to waive the right to
revoke consent to an independent adoption by signing a waiver,
under the same conditions imposed under independent adoptions
above.
4.Existing law provides that a nonresident may file an adoption
petition anywhere except where the petitioner resides, but a
resident of California must file petition in the county where
any of the following exists:
the petitioner resides;
the child was born or resides;
an office of the agency that placed the child is
located; or
an office of the department of public agency that is
investigating the adoption is located. (Fam. Code Secs.
8714, 8802, 8912, 9211.)
This bill would instead provide that the appropriate venue for
an adoption petition to be filed on behalf of a nondependent
minor is the court in the county where one of the following
exists:
the petitioner resides;
the child was born or resides;
an office of the agency that placed the child is
located;
an office of the department of public agency that is
investigating the adoption is located; or
the child was freed for adoption.
1.Existing law provides that a court investigator may conduct an
investigation as part of a guardianship proceeding and report
to the court, unless waived by the court, and requires the
court to read and consider such report before ruling on the
guardianship petition. If the investigation alleges that the
child's parent is unfit, existing law requires the case to be
referred to the child welfare agency for investigation and
stays guardianship proceedings pending completion of that
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investigation. (Prob. Code Sec. 1513.)
This bill would authorize the probate court in a guardianship
proceeding to refer any case of possible child abuse or
neglect to the child welfare agency for investigation, and
allow the court to take any reasonable steps it deems
appropriate to protect the child while that investigation is
pending. This bill would provide that the guardianship
proceedings shall be stayed if dependency proceedings are
initiated as a result of the investigation.
COMMENT
1.Stated need for the bill
According to the author:
Laws that govern adoption processes are spread throughout the
Family Code, Welfare & Institutions Code, and Probate Code.
As these code sections are gradually amended, they may
conflict with other sections, resulting in contradictory
provisions. Such convoluted laws may be misinterpreted and
misapplied in judicial procedures, presenting unnecessary and
costly hurdles to parents that would like to adopt. This
bill reconciles the various inconsistencies in the statute to
clarify adoption law and streamline adoption processes. By
doing so, we make it easier for California's children to be
placed in permanent, stable homes with loving parents.
2.Guardianship proceedings concerning minors who may have been
subject to abuse or neglect
Existing law requires the probate court, in guardianship
proceedings where the parent has been alleged to be unfit, to
order an investigation of the case by the county welfare agency.
During this investigation, the guardianship proceeding is
stayed. If the investigation reveals serious maltreatment of
the child, the case will be referred to the dependency court.
If not, the stay is lifted and the probate court may continue
with the guardianship proceeding.
This bill would repeal that process and, instead, give the court
discretion to order an investigation when it appears that a
child has been abused or neglected. This bill would also
authorize the probate court to take any reasonable steps the
court deems necessary to protect the child's safety, including
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appointing a temporary guardian or issuing a temporary
restraining order, during that investigation.
The author states that a recent appellate decision "radically
altered the long-standing interpretation of the Probate code,
resulting in a deluge of guardianship investigation cases in the
county welfare departments." In Christian G. ((2011) 195
Cal.App.4th 581), the trial court appointed a boy's uncle as his
guardian after an investigation revealed that the boy's father
was unable to care for him. The court of appeals reversed that
appointment, finding that the probate court should have instead
referred the case to the child welfare agency for an
investigation.
Arguably, requiring the court to order an investigation every
time a party alleges that a parent is unfit, denies the court
discretion to evaluate whether the allegations are credible.
Further, under the holding of Christian G., the probate court
has no authority to act in the best interest of the child while
the guardianship proceeding is stayed, pending the investigation
from the county. In effect, this creates a gap of time where no
entity may protect the child from potential abuse. This bill
seeks to address these problems by giving courts the discretion
to order investigations when evidence of abuse or neglect is
presented, and would also allow the court to act during the
interim to protect the child. The sponsor writes that these
changes "would constitute a return to the standards used by
probate courts for decades prior to the issuance of the
Christian G. decision."
The Judicial Council of California suggests the following
clarifying amendment to remove redundancy and ensure that the
probate court shall retain jurisdiction to hear the guardianship
matter in the event that a dependency proceeding is not
initiated. The author agrees and offers the following amendment
to clarify the issue.
Suggested amendment:
Page 17, line 14 strike "After"
Page 17, strike lines 15-18 inclusive
3.Ability of birth parents to revoke relinquishment of consent
in agency adoptions
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Under existing law, birth parents who relinquish their child for
adoption are able to revoke their consent for that adoption
(within 30 days for parents using independent adoption and 10
days for using an agency). Existing law also authorizes birth
parents using independent adoption to waive their right to
revoke consent for the adoption, thus, finalizing the
termination of their rights earlier. This bill would similarly
authorize birth parents using an agency adoption to waive their
right to revoke consent for the adoption.
To provide some safeguards for birth parents that are using an
agency for the adoption, this bill would extend the waiver
protections currently afforded to birth parents going through an
independent adoption, to those using an agency. These
protections include: limiting who may accept the waiver;
specifying the warnings that must be provided to the birth
parents as part of the waiver process; and requiring that
independent counsel advise the birth parents as to their rights,
as specified. In support, the sponsor argues that "birth
parents choosing to place through an agency adoption would
benefit from the same option for earlier closure regarding their
placement decision?" That waiver of the right to revoke consent
would also appear to be of significant benefit to adoptive
parents who would have certainty that a birth mother will not be
able to revoke consent if second thoughts arise after returning
home from the hospital without the baby. As a result, early
termination of parental rights may arguably provide quicker
closure to both birth and adoptive parents.
4.Stepparent adoption
If a mother consents to the adoption of a child who has a
presumed father, existing law requires that efforts be made to
identify and notify the father. In these situations, the court
is required to inquire of the mother as to the identity and
location of the father, and may inquire of the Department of
Social Services or the adoption agency. In the event of a
stepparent adoption, the court may inquire of the county
department designated by the board of supervisors to administer
the public social services program, or the county probation
department.
Investigations pursuant to stepparent adoptions are authorized
under two different sections in the Family Code-Family Code
section 7663 and section 9001. In 2002, section 9001 was
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amended to allow clinical social workers and marriage and family
therapists (MFT) to complete stepparent adoption investigations,
but section 7663 was left unaltered. This bill would authorize
social workers and MFTs to complete investigations in stepparent
adoptions under that section. The sponsor writes that "by
expanding this to include the additional investigation often
required by 7663 for stepparent adoptions, this relieves the
financial burden on courts and county welfare departments, and
provides options for families living in counties with extremely
long waits for completion of these reports."
5.Setting initial hearings for the termination of parental
rights of presumed parents
Existing law provides that "a proceeding to declare a child free
from parental custody and control shall be set for trial not
more than 45 days after the filing notification therefor and
completion of service thereon?" (Fam. Code Sec. 7870.) This
bill would instead provide that a hearing shall be set not more
than 45 days after the filing of the petition, and that, if, at
the time set for hearing, 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. In support of the change, the sponsor writes
that "because the wording of 7870 is unclear, courts in
different jurisdictions have developed different jurisdictions
have developed different timelines and procedures over the years
as to setting hearing dates and trials."
6.Appropriate venue for filing of adoption petitions
This bill would consolidate adoption venue provisions into a
single code section for clarity. Under existing law, the venue
provisions for filing adoption petitions are found in four
different sections. This bill would not change existing venue
provisions options, but would instead consolidate all available
venue options into one code section.
Support : County Welfare Directors Association of California
Opposition : None Known
HISTORY
Source : Academy of California Adoption Lawyers
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Related Pending Legislation : None Known
Prior Legislation :
AB 687 (Fletcher, Chapter 462, Statutes of 2011) streamlined the
process for determining parent-child relationships, and made
other technical and substantive changes to adoption laws.
AB 2020 (Fletcher, Chapter 588, Statutes of 2010) among other
things, streamlined the process for determining parent-child
relationships and made other substantive and technical changes
to adoption laws.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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