BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1701 (Patterson)
As Amended June 11, 2014
Hearing Date: June 24, 2014
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:
restoring the marital presumption of parentage for a child
born to a married couple;
clarifying that all actions involving custody of a child are
to be stayed upon filing of an action to terminate parental
rights;
allowing a single petition to terminate parental rights to be
filed for two or more siblings, or for a child with two or
more alleged fathers;
clarifying that in an action to terminate a minor parent's
parental rights, the minor's parents only need to be notified
if agreed to by the minor; and
clarifying that a person who consents to a spouse's adoption
of a child does not assume parental responsibilities for the
adopted child unless the consenting person also adopts the
child.
BACKGROUND
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
(more)
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changes related to adoption, including restoring the
long-established marital presumption of parentage, which
protects a child of a marriage from claims of parentage by third
parties, and would clarify confidentiality protections for
minors who wish to place a child for adoption.
CHANGES TO EXISTING LAW
1.Existing law provides that a child's natural parent, a person
presumed to be a child's parent, or a prospective adoptive
parent may bring an action at any time for the purpose of
declaring a parent and child relationship. (Fam. Code Sec.
7630.)
This bill would replace "natural parent" with "natural mother"
in the above provision.
2.Existing law provides that notice to every person identified
as the biological father or a possible biological father shall
be given prior to a termination of parental rights. (Fam.
Code Secs. 7662, 7841, 8604.)
This bill would clarify that service on the parent or guardian
of a biological father or possible biological father who is a
minor is not required unless the minor has previously provided
written authorization to serve his parent or guardian.
3.Existing law establishes a procedure by which a mother
relinquishing a child for adoption shall petition the court to
have the parental rights of the alleged father terminated, and
a process by which specified entities may petition the court
to declare a child free from the custody and control of either
or both parents. (Fam. Code Secs. 7664, 7840.)
This bill would provide that a single petition may be filed to
terminate (or free a child from the custody and control of
both parents) the parental rights of the alleged father or
fathers of two or more biological siblings or to terminate the
parental rights of two or more alleged fathers of the same
child. This bill would provide that the court shall retain
discretion to bifurcate any case, as specified.
4.Existing law provides that a married person, not lawfully
separated from his or her spouse, may not adopt a child
without the consent of the spouse, provided the spouse is
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capable of giving consent. (Fam. Code Sec. 8603.)
This bill would additionally provide that the consent of the
spouse shall not establish any parental rights or
responsibilities unless he or she has also consented to adopt
the child, as specified. This bill would prohibit the name of
a spouse who does not agree to adopt the child in writing,
from being declared an adoptive parent on the final decree.
This bill would authorize a court to dispense with the
required consent of a spouse who cannot be located after a
diligent search, or a spouse who the court determines lacks
the ability to consent. This bill would prohibit a spouse for
whom consent was dispensed from being named on the final
decree.
5.Existing law provides that if one birth parent has been
awarded custody and the other birth parent, for a period of
one year, willfully fails to communicate with and to pay for
the care, support, and education of the child when able to do
so, then the birth parent having sole custody may consent to
the adoption after the other parent has been served with
notice of the hearing. (Fam. Code Sec. 8604.)
This bill would additionally provide that if a birth mother of
a child, for whom there is not a presumed father, leaves the
child in the physical care of a licensed private adoption
agency, a prospective adoptive parent who has an approved
preplacement evaluation or home study, or in the hospital
after designating a licensed private adoption agency or an
approved prospective adoptive parent in a signed document, as
specified, but fails to sign a placement agreement, consent,
or relinquishment for adoption, the approved prospective
adoptive parent or adoption agency may apply for, and the
court may issue, a temporary custody order placing the child
in the care and custody of the applicant.
This bill would provide that a temporary custody order issued
pursuant to this subdivision may be voided upon the birth
mother's request to have the child returned to her care and
custody.
6.This bill would allow an out-of-state resident to place a
child for independent adoption into California in accordance
with the laws of that person's state of residence.
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7.Existing law allows the court to waive the personal appearance
of a prospective adoptive parent if impossible or
impracticable for him or her to make an appearance in person,
as specified. (Fam. Code Sec. 8613.5.)
This bill would authorize the prospective adoptive parent to
appear by telephone, videoconference, or other remote
electronic means that the court deems reasonable, prudent, and
reliable.
8.Existing law provides that a parent who is a minor has the
right to relinquish his or her child for adoption, and that
relinquishment is not subject to revocation by reason of the
minority. (Fam. Code Sec. 8700.)
This bill would additionally provide that the relinquishment
is not subject to revocation because the parent of the minor
was not served with notice, unless the relinquishing minor had
previously provided written authorization to serve his or her
parent or guardian with that notice.
9.Existing law provides that within 180 days after receiving 50
percent of the fee, a prospective adoptive parent may obtain a
preplacement investigation, evaluation, or home study. If the
investigation establishes that there is a serious question
concerning the suitability of the petitioners, a report must
be filed with the court immediately. (Fam. Code Sec. 8807.)
This bill would instead provide that prospective adoptive
parents need to pay the full fee up front, and if after 210
days the report is not completed, this bill would allow
parties to request the court to issue an order requiring the
department or county to complete the investigation within 30
days.
This bill would make other clarifying and technical changes.
COMMENT
1.Stated need for the bill
According to 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
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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.
2.Creates judicial efficiencies related to adoption
This bill would create a number of efficiencies related to
adoption. In support of the bill, the California Alliance of
Child and Family Services writes, "these and other technical
changes may seem small, but they mean the world to parents and
children going through the adoption process."
For example, all natural, alleged, and presumed parents' rights
must be terminated before an adoption can be completed.
However, existing law and practice is unclear as to whether a
single petition may be filed for the termination of parental
rights of more than one sibling, or in relation to a child with
more than one alleged father. This bill allows for consolidated
termination of parental rights by expressly providing that a
single petition may be filed to terminate the parental rights of
the alleged father or fathers of two or more biological siblings
or to terminate the parental rights of two or more alleged
fathers of the same child. By allowing termination of multiple
relationships to happen in one proceeding, this bill will create
a more efficient system for the court and the parties involved.
However, in the event that it is not efficient, fair, or
rational to allow a consolidated termination proceeding, this
bill would ensure that the court retains discretion to bifurcate
any case.
Existing law also authorizes the court to waive the personal
appearance of a prospective adoptive parent if impossible or
impracticable for him or her to make a court appearance in
person. This bill would additionally authorize the prospective
adoptive parent to appear by telephone, videoconference, or
other remote means if the court deems such an appearance
reasonable, prudent, and reliable. Finally, this bill would
authorize a court to dispense with the consent requirement of a
spouse who cannot be located or who the court determines lacks
the ability to consent. Arguably, these provisions will help
eliminate some of the hurdles that parents, both natural and
prospective, face when seeking to place a child with a new
family.
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3.Homestudy investigations
This bill seeks to give prospective adoptive parents the ability
to compel the Department of Social Services (Department) or
county adoption agency to complete homestudy investigations in a
timely manner. Under existing law, the Department or 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 would require the homestudy to be
completed within 180 days of paying the entire fee, and would
provide that if the Department or the 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.
In opposition to this provision American Federation of State,
County, and Municipal Employees (AFSCME) Local 2620 argues that
they would like to continue to process adoption cases where the
adoption petition and/or the Adoption Placement Agreement have
been received by the Department even if half of the fee has not
yet been received. AFSCME also argues that they have their own
process in place for requesting extensions when an investigation
is not completed by a certain date, and that the provisions of
this bill would create further delays in completing an adoption.
The author, therefore, offers the following amendments which
would allow the agencies and Department to conduct
investigations after half the fee has been received and return
the timelines to those under existing law.
Author's amendments
a) Page 22, line 15, strike "100" and insert "50"
b) Page 22, lines 17-18, reinsert red-lined language
c) Page 22, strike lines 39-40
d) Page 23, strike lines 1-15
e) Page 23, line 28, after "received" insert "50 percent
of"
f) Page 24, line 7, reinsert red-lined language
1.Restores marital presumption of parentage
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
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and openly held out the child as his or her own. (Fam. Code
Sec. 7611.) An alleged father, on the other hand, is generally
a biological father who does not qualify as a presumed parent.
Recent revisions to the Family Code have made gendered terms,
where appropriate, gender neutral. (See AB 2020 (Fletcher, Ch.
588, Stats. 2010) and AB 1403 (Committee on Judiciary, Ch. 510,
Stats. 2013).) 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. As this result was not the intention of the
recent legislation, this bill would restore the martial
presumption in California law thereby protecting married couples
and their children from allegations of parentage from an outside
third party.
This change will still allow alleged fathers to bring parentage
actions when an adoption or dependency case is pending, but will
not, however, allow them to initiate a parentage action against
a married couple, as has long been the law of California. (See
Dawn D. v. Superior Court (1998) 17 Cal.4th 932.)
2.Protects the privacy of minors when relinquishing a child for
adoption
A parent who is also minor has the right to relinquish his or
her child for adoption. Existing law provides that the
relinquishment is not subject to revocation simply because the
parent has not reached the age of majority. (Fam. Code Sec.
8700.) California law also protects the privacy rights of minors
and provides that minors, 12 years of age and older, may consent
to specified health care and determine whether to keep it
confidential, including sexual and reproductive health services,
drug treatment, and mental health treatment or counseling
services.
Accordingly, this bill, which would clarify that a minor's
parents shall not be notified of his or her decision to
terminate parental rights or relinquish a child for adoption
unless previously agreed to by the minor, is consistent with
privacy policies the state has enacted to protect the
confidentiality of a minor's reproductive health and mental
health decisions. (Fam. Code Secs. 6924-6929.)
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3.Choice of law provisions for interstate adoptions
When a parent who resides outside of this state seeks to place a
child for independent adoption in California, the laws of his or
her state may be substantially different from those of
California. The author argues that "this creates conflicts in
application of law and procedure, and great uncertainty as to
whether the out-of-state parent can or should waive all legal
and parental rights granted by his or her state of residence."
Accordingly, this bill would amend and add to existing law to
allow for an out-of-state resident to place a child for
independent adoption in California in accordance with the laws
of that person's state of residence.
AFSCME Local 2620 writes in opposition that they "do not want to
dispense with the need for an Adoption Placement Agreement for
Independent Adoption cases filed in a California court unless
the adoptive family is related to the child or there has been
guardianship for at least one year. We cannot be responsible
for knowing the laws in 49 other states that may be in conflict
with the Independent Adoption laws/statutes of California."
In response to these concerns, the author offers the following
amendments which would remove the above choice of law
provisions.
Author's Amendments:
a) Page 19, strike lines 21-40
b) Page 20, strike lines 1-2
1.Additional author's amendments
The author offers the following technical and clarifying
amendments:
Author's amendments:
a) Page 16, line 23, after "relinquished the child for
adoption" insert "pursuant to subdivision (a) above or (d)
below.
b) Page 24, line 34, strike "relinquishing" and insert
"consenting"
c) Page 24, line 35, strike "relinquishing"
d) Page 24, line 36, strike "relinquishing"
e) Page 29, line 10, after "parties" strike "strictly"
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f) Page 29, line 10, after "regarding the" insert
"strictly"
Support : Angels of Grace; California Alliance of Child and
Family Services; Infant of Prague; Valley Teen Ranch
Opposition : American Federation of State, County and Municipal
Employees (AFSCME) Local 2620; Concerned United Birth Parents;
Service Employees International Union (SEIU); numerous
individuals
HISTORY
Source : Academy of California Adoption Lawyers
Related Pending Legislation : None Known
Prior Legislation :
AB 848 (Patterson, Chapter 743, Statutes of 2013) made several
changes to adoption processes and adoptive placement
considerations including clarifying when a birth parent's waiver
of the right to revoke consent to an adoption is void or able to
be rescinded, and that an abbreviated home study assessment may
only be used for specified individuals.
AB 1757 (Fletcher, Chapter 638, Statutes of 2012) among other
things, clarified the probate court's role when a child in a
guardianship proceeding may fall within the jurisdiction of the
dependency court, authorized birth parents to waive their right
to revoke consent in agency adoptions, and consolidated venue
provisions for adoption petitions into one code section.
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.
SB 1726 (Scott, Chapter 534, Statutes of 2008) made several
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substantive and technical changes to adoption law, including
providing that consolidated guardianship and adoption cases
shall be heard and decided by the court in which the adoption is
pending.
AB 538 (Cardozo, Chapter 353, Statutes of 2001) among other
things, authorized licensed clinical social workers and licensed
marriage therapists to conduct step-parent adoption
investigations.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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