BILL ANALYSIS �
AB 1701
Page 1
Date of Hearing: April 22, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1701 (Patterson) - As Amended: April 10, 2014
As Proposed to be Amended
SUBJECT : ADOPTION
KEY ISSUE : SHOULD VARIOUS CHANGES BE MADE TO STREAMLINE THE
PROCESS FOR ADOPTIVE FAMILIES?
SYNOPSIS
This is the Academy of California Adoption Lawyers' (ACAL)
annual adoption bill. According to the author, this bill is
necessary to "clarify existing statutory law and adoption
consent procedures, codify existing case law, and simplify
existing local procedures for filing of cases." Among other
things, this bill creates a procedure to allow a prospective
adoptive parent to have temporary custody of a child when the
birth parents leave without completing the necessary adoption
requirements, but allows the birth parents to regain custody
upon return. This helps ensure that the child is protected in
the birth parents' absence, but also protects their rights upon
return. This bill also seeks to reduce delays in completing
homestudies, and to clarify that out-of-state birth parents may
place their child for adoption in California according to the
law of their state of residence in order to avoid conflicts
between California law and the law of the other state. There is
no opposition to these changes.
SUMMARY : Makes changes to adoption processes. Specifically,
this bill :
1)Provides that a person who gives consent for his or her spouse
to adopt a child has no parental rights or responsibilities,
unless that person has consented to adopt the child in a
writing filed with the court. Provides that the court cannot
name such a consenting spouse as an adoptive parent on the
final adoption decree unless that parent has filed with the
court his or her written consent to be an adoptive parent.
2)If it is impossible or impractical for prospective adoptive
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parents to appear in court, allows the court to either waive
their appearance or allow them to appear by phone,
videoconference, or other electronic means that the court
deems reasonable, prudent and reliable.
3)In a proceeding to terminate parental rights as part of an
adoption proceeding or to allow a child to be free of parental
custody and control, allows a single petition to terminate
parental rights with respect to two or more biological
siblings or to terminate parental rights of two or more
alleged fathers. Allows the court to bifurcate any such cases
and requires the court to bifurcate any case if necessary to
protect the interests of the child or any party.
4)Allows a parent to place a child for independent adoption in
California pursuant to the laws of the state or territory
where that parent resides and provides that, in those cases,
the parent's consent to the adoption is not required, under
California law.
5)Provides that, in an independent adoption, if a birth parent
does not provide consent for the adoption, as provided, or
revokes consent for the adoption, the child shall be returned
to that birth parent, unless the court orders otherwise.
6)If prospective adoptive parents have a pre-placement
evaluation or homestudy, as defined, provides that the
Department of Social Services (DSS) or delegated county
adoption agency is not required to reinvestigate any matters
covered by that study, unless new information or events create
a reasonable belief that further investigation is necessary or
the court so orders.
7)Provides that if DSS or the delegated county adoption agency
does not submit the required homestudy investigation within
210 days of the initial filing of the petition for an
independent adoption, the prospective adoptive parents may
request that the court order the agency to complete the
adoption within 30 days. Before the court can rule on the
request, the court must consider the reasons for the delay,
including any failure of the prospective adoptive parents to
cooperate in the investigation. If the agency fails to
complete the investigation within 30 days, provides the court
with cause to refer the investigation to a licensed private
adoption agency. If the investigation is referred to a
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private agency, requires the state or county agency to turn
over all fees to that private agency.
8)Requires prospective adoptive parents petitioning for an
independent adoption to send a copy of the petition to DSS or
the delegated county adoption agency within five business days
of filing the petition, along with a copy of any pre-placement
evaluation or homestudy.
9)Clarifies that, among others, mothers and presumed parents may
bring an action to establish parentage.
10) Expands the list of those who must be joined in an action
to determine parentage to include any person that the mother
has designated as a prospective adoptive parent, as provided,
and any licensed adoption agency to which the mother proposes
to relinquish the child.
11) Clarifies that a minor birth parent's right to consent to
an adoption is not subject to revocation because the minor's
parent or guardian did not receive notice of the minor's
consent, unless the minor signed an authorization for release
of information to allow the parent or guardian to receive such
notice.
12) Clarifies that custody actions, as well as guardianship
proceedings are stayed, upon the filing of an action to
terminate parental rights under the Family Code, but that
actions regarding domestic violence and juvenile dependency
may proceed.
13) Allows a licensed private adoption agency or prospective
adoptive parents or a hospital, with whom a child has been
left by the birth mother and there is no presumed father, to
petition the court for temporary custody of the child. Allows
the court to issue a temporary custody order placing the child
with the adoption agency or prospective adoptive parents, but
requires that the adoption agency or prospective adoptive
parents keep the court informed of the child's residence and
not remove the child from the state. The order may be
effective for no longer than six months, and may be voided
upon the request of the birth mother, unless the court orders
otherwise.
14) Makes other technical changes.
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EXISTING LAW :
1)Allows for agency and independent adoptions of children.
(Family Code Sections 8700 et seq. and 8880 et seq. Unless
stated otherwise, all further statutory references are to the
Family Code.)
2)Provides that a married person, who is not legally separated,
may not adopt a child without the consent of his or her
spouse, provided the spouse is capable of giving consent.
(Section 8603.)
3)Allows a court, if it is impossible or impractical for
prospective adoptive parents to appear in court, to waive
their personal appearance if the circumstances are established
by clear and convincing evidence. (Section 8613.5.)
4)Establishes a procedure to declare a child free from parental
custody and control. (Section 7840 et seq.)
5)Establishes a procedure to terminate parental rights in
adoption proceedings. (Section 7662.)
6)Allows a parent who resides outside of California to
relinquish a child for agency adoption pursuant to the laws of
the parent's state of residence and thus consent from that
parent is not required for the adoption. (Section 8606.)
7)Provides that if a birth parent does not provide consent for
an independent adoption as provided or revokes consent for the
adoption, the court shall order that the child be returned to
that birth parent. (Section 8804(c).)
8)Requires DSS or delegated county adoption agency, within 180
days after receiving payment, to investigate any proposed
independent adoption and submit to the court a report, along
with a recommendation on whether to grant the adoption.
(Section 8807.)
9)Requires prospective adoptive parents petitioning for an
independent adoption to file a copy of the petition with DSS
or the delegated county adoption agency at the same time the
petition is filed in court. (Section 8808.)
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10) Allows a birth parent who is a minor to consent to an
adoption and provides that the consent is not subject to
revocation by reason of minority. (Sections 8700 and 8814.)
11) Allows, among others, a natural and a presumed parent to
bring an action to establish parentage. Requires that a
prospective adoptive parent with physical custody of the child
and the licensed adoption agency with legal custody of the
child be joined as parties to that action. (Section 7630.)
12) Provides that custody actions are stayed upon the filing
of an action to terminate parental rights under the Family
Code, but that domestic violence actions may proceed.
(Sections 7662 and 7807.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This is the Academy of California Adoption Lawyers'
annual adoption bill. According to the author, this bill is
necessary to resolve technical issues and other more substantive
issues in order to streamline adoption procedures. Writes the
author:
Adoption law is a blend of statutes, regulations, case law,
and local practices. When statutory language is vague or
confusing, or when local courts apply different
interpretations of the law, this can and does result in
unequal treatment for similarly situated adoptive families.
The changes proposed in this bill are intended to clarify
existing statutory law and adoption consent procedures,
codify existing case law, and simplify existing local
procedures for filing of cases.
This Bill Provides for Temporary Custody of a Child When a Birth
Mother Leaves the Child Without Completing the Adoption
Paperwork . It sometimes happens that a birth mother will leave
an infant at the hospital, with prospective adoptive parents or
with an adoption agency without completing all the necessary
paperwork to relinquish the child. Without legal custody,
prospective adoptive parents may be unable to obtain medical
insurance for the child and otherwise care for the child
effectively.
This bill creates a mechanism for prospective adoptive parents,
in very limited and narrowly defined instances when the birth
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mother leaves the child with some, but not all necessary forms
completed and there is no other parent, to properly care for the
child until such time as the birth mother returns and claims the
child, the birth mother completes the needed paperwork to
relinquish the child or the child is freed from her custody and
control. The temporary order is limited to no more than six
months and may be voided upon the request of the birth mother,
as provided. This allows the child to be protected in the birth
mother's absence, but also protects her rights upon return.
Limits Unnecessary Homestudies and Helps Reduce Delays in
Completing Those Evaluations : Before an adoption can be
approved, DSS or the county child welfare agency must do a
homestudy of the prospective adoptive parents and evaluate
whether the proposed adoption is appropriate. In this bill, the
author seeks to address two problems regarding homestudies.
First, prospective adoptive parents who have already obtained a
valid and current pre-placement evaluation or homestudy may
still be subject to a full evaluation because current law is
silent on the subject. This bill allows DSS or the county
adoption agency to not reinvestigate any matters covered by that
study, unless new information or events create a reasonable
belief that further investigation is necessary or the court so
orders. This allows for maximum discretion to the evaluators to
review what is necessary, but also allows them to not
unnecessarily redo a current and valid assessment. This should
save the prospective adoptive parents both time and money, while
still ensuring that children are adequately protected.
Secondly, this bill seeks to provide some consequences to DSS or
the county adoption agency if they don't meet the existing
timelines for completing the required assessment. Currently,
the agencies are required to investigate the prospective parents
within 180 days of being paid half their fee, but there is no
consequence if they do not. This bill provides that if DSS or
the delegated county adoption agency does not submit the
required homestudy investigation within 210 days of the initial
filing of the petition for an independent adoption, the
prospective adoptive parents may request that the court order
the agency to complete the adoption within 30 days. Before the
court can rule on the request, the court must consider the
reasons for the delay, including any failure of the prospective
adoptive parents to cooperate in the investigation. If the
agency fails to complete the report within the court-ordered 30
days, the court then has cause to refer the investigation to a
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licensed private adoption agency. If the investigation is
referred to a private agency, the bill requires that the state
or county agency turn over all fees to that private agency. The
author believes that this provision should speed the completion
of homestudies and help prevent prospective adoptive parents and
children from languishing in the system.
Protects Parentage Marital Presumption : In 2010, ACAL again
sponsored adoption legislation and that bill included a change
to streamline the process for determining parent-child
relationships for alleged and presumed parents. (AB 2020
(Fletcher), Chap. 588, Stats. 2010.) A person is presumed to
be a child's legal parent if, among other things, he or she
received the child into his or her home and openly held out the
child as his or her own. (Section 7611.) An alleged father, on
the other hand, is generally a biological father who does not
qualify as a presumed parent. The revisions of AB 2020, as
interpreted by a recent appellate court decision, allowed an
alleged father to bring an action to determine parentage against
a married couple. (V.S. v. M.L. (2013) 222 Cal.App.4th 730.)
Prior law had always protected the marital presumption of
parentage for a child born to the marriage from an alleged
parent, although not a presumed parent.
The change in this bill will still permit alleged fathers to
bring parentage actions when an adoption or dependency case is
already pending. It will not, however, allow them to initiate a
parentage action against a married couple, as had long been the
law of California. (See, e.g., Dawn D. v. Superior Court (1998)
17 Cal.4th 932.) Presumed parents, on the other hand, retain
their right to bring such an action.
The bill also provides that the adoption agency to whom the
birth mother proposes to relinquish a child or any person
designated as a prospective adoptive parent, as provided, should
be noticed and joined in any action to determine parentage of
the child. The author notes that this change will preserve
judicial resources by preventing delays and continuances by
ensuring that all interested parties are joined in the same
action.
Clarifies that A Spouse Who Consents to an Adoption, But Does
Not Adopt the Child Has No Parental Rights or Responsibilities :
Under current law, if a couple is married and one person seeks
to adopt a child, the other spouse must either adopt the child
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as well or consent to the adoption. However, the consent to the
adoption does not establish any parental rights or obligations.
This bill simply clarifies that by specifically providing that a
spouse who consents to an adoption, but does not adopt the
child, has no parental rights or responsibilities.
Author's Amendment: In order to make clear that a consenting
spouse who does not wish to adopt the child is not inadvertently
added to the final adoption decree as an adopting parent, the
author rightly proposes to amend the bill by adding the
following sentence to page 11, line 11 of the bill:
The court shall not name the consenting spouse as an adoptive
parent in the final decree unless the consenting spouse has
filed that written consent to adopt the child with the court
and has an approved adoption homestudy.
Clarifies Which Law Applies When an Out-of-State Birth Parent
Places a Child for Adoption in California : Current law requires
a parent who is placing the child for an independent adoption in
California to do so under California laws. However, if the
parent lives out of state, that state may have different
requirements for placing the child for adoption and may provide
the birth parent with different legal and parental rights. This
bill makes clear that a birth parent may place a child for
adoption according to the laws of his or her state of residence.
This does not prevent birth parents from following California
laws, but instead allows them to choose to follow the laws of
their resident state. This is how current law already treats
birth parents using agency adoption.
Codifies Case Law to Ensure a Court Can Make Necessary Orders to
Protect a Child if a Prospective Adoption Fails : Under current
law, if a prospective adoption is not completed and the birth
parents' rights are not terminated, the birth parents will
regain custody of their child. However, a court may, in that
situation, consider a guardianship for the child if that is
necessary to protect the child, just like a court may consider a
guardianship for a child in other situations. (Guardianship of
Zachary H (1999) 73 Cal.App.4th 51.) This bill codifies that
holding by clarifying that if an adoption falls apart before it
is finalized, the child must be returned to the birth parents
unless the court orders otherwise, subject to existing
requirements in the Family Code. The bill also confirms that if
the prospective adoptive parents have any concerns about the
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child's safety, they may report those concerns to the child
welfare agency.
Author's Amendments: In order to clarify that while a court may
order that a child may not be returned to their parents the
court must do so according to existing law in the Family Code,
the author proposes to amend the bill as follows:
On page 20, line 7, after "parents" insert: , unless the court
orders otherwise
On page 20, line 8, strikeout: ", unless the court orders
otherwise
Clarifies That the Parents of a Minor Who is Giving Up a Child
for Adoption Have no Right to Notice Unless the Minor Parent
Authorizes It : A minor may relinquish his or her child for
adoption, or consent to the adoption, without the consent of the
minor's parents. The minor parent has the right to decide if
his or her parents should be notified. This bill clarifies that
the parents of the minor should not be served with notice of the
proceeding, unless the minor parent, in writing, authorizes it.
In addition, failure to notify the parents of the minor parent's
relinquishment of the child does provide grounds for revocation
of that relinquishment, unless the minor parent had provided
authorization that his or her parents receive notice and they
did not receive notice.
Author's Amendments: In order to make clear that it is the
minor parent who may revoke the relinquishment or the consent to
the adoption, the author proposes to amend the bill as follows:
On page 14, line 34, after "revocation" insert: by the
relinquishing parent
On page 22, line 28, after "revocation" insert: by the birth
parent
Allows Actions to Terminate Parental Rights to be Filed Jointly
for Siblings or Multiple Alleged Fathers : To reduce burdens to
courts and families, this bill allows parties to file a single
petition to terminate the parent rights for full siblings or to
terminate the rights of two or more alleged fathers of the same
child. However, to ensure that this combining of cases does not
harm any child or party or interest, the bill makes clear that
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the court can bifurcate any such cases and must do so if such
bifurcation is necessary to protect the interests of the child
or children, or the interests of any party.
Makes Other Clarifications to Existing Law : This bill also
makes a number of other, more minor changes to current law to
ensure that some more ambiguous provisions are made more
understandable. In particular, this bill clarifies that:
A court may permit a prospective adoptive parent who
cannot appear in court the option of appearing by
telephone, videoconference or other electronic means that
the court deems reasonable, prudent and reliable.
Custody actions are stayed pending a Family Code action
to terminate parental rights. However, the bill makes
clear that domestic violence actions and dependency actions
can continue even when a Family Code action to terminate
parental rights is pending.
REGISTERED SUPPORT / OPPOSITION :
Support
Academy of California Adoption Lawyers (sponsor)
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334