Bill Text: CA AB1701 | 2013-2014 | Regular Session | Chaptered
Bill Title: Family law: adoption.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2014-09-29 - Chaptered by Secretary of State - Chapter 763, Statutes of 2014. [AB1701 Detail]
Download: California-2013-AB1701-Chaptered.html
BILL NUMBER: AB 1701 CHAPTERED
BILL TEXT
CHAPTER 763
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 2014
APPROVED BY GOVERNOR SEPTEMBER 29, 2014
PASSED THE SENATE AUGUST 26, 2014
PASSED THE ASSEMBLY AUGUST 27, 2014
AMENDED IN SENATE AUGUST 22, 2014
AMENDED IN SENATE AUGUST 5, 2014
AMENDED IN SENATE JULY 1, 2014
AMENDED IN SENATE JUNE 11, 2014
AMENDED IN ASSEMBLY APRIL 23, 2014
AMENDED IN ASSEMBLY APRIL 10, 2014
INTRODUCED BY Assembly Member Patterson
(Coauthor: Senator Anderson)
FEBRUARY 13, 2014
An act to amend Sections 7630, 7662, 7666, 7807, 8603, 8604,
8613.5, 8700, 8804, 8807, 8808, 8814, and 8815 of, and to add
Sections 7671 and 7842 to, the Family Code, and to amend Section 361
of the Welfare and Institutions Code, relating to family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 1701, Patterson. Family law: adoption.
(1) Existing law authorizes, among others, a child's natural
parent to bring an action to declare the existence or nonexistence of
a presumed parent and child relationship. Existing law requires the
court to join to that action specified parties, including prospective
adoptive parents who have physical custody of the child, who have
not been joined as parties, without the necessity of a motion for
joinder.
This bill would instead authorize a child's natural mother to
bring that action. The bill would also require the court to join to
that action additional specified parties who have not been joined as
parties, including a licensed California adoption agency to which the
mother proposes to relinquish the child for adoption.
(2) Existing law provides for the adoption of unmarried minors.
Existing law prohibits a married person, not lawfully separated from
the person's spouse, from adopting a child without the consent of the
spouse if the spouse is capable of giving that consent.
This bill would additionally provide that the consent of the
spouse shall not establish any parental rights or responsibilities on
the part of the consenting spouse unless he or she has consented to
adopt the child in a writing filed with the court and is named in the
final decree as an adoptive parent of the child. The bill would
authorize the court to dispense with a spouse's consent in certain
circumstances and, if consent has been dispensed, prohibit the spouse
from being named as an adoptive parent in the final decree.
(3) Existing law generally provides that a child having a presumed
father, as specified, shall not be adopted without the consent of
the child's birth parents, if living. However, if one birth parent
has been awarded custody by judicial order, or has custody by
agreement of both parents, 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 birth parent who does not have custody has been served with
a specified citation. Under existing law, the failure of a birth
parent to pay for the care, support, and education of the child for
the one-year period or the failure of a birth parent to communicate
with the child for the one-year period is prima facie evidence that
the failure was willful and without lawful excuse.
This bill would authorize the court to issue a temporary custody
order, as specified, if the birth mother of a child for whom there is
not a presumed father leaves the child in certain circumstances,
including in the physical care of a licensed private adoption agency,
and fails to sign a placement agreement, consent, or relinquishment
for adoption. The bill would authorize the temporary custody order to
be voided upon the birth mother's request to have the child returned
to her care and custody.
(4) Existing law requires, if a mother relinquishes for or
consents to, or proposes to relinquish for or consent to, the
adoption of a child, or if a child otherwise becomes the subject of
an adoption proceeding, one of several specified persons to file a
petition to terminate the parental rights of the alleged father,
except as specified.
Existing law permits an interested person to file a petition for
an order or judgment declaring a child free from the custody and
control of either or both parents.
This bill would permit a single petition to be filed to terminate
the parental rights of the alleged father or fathers of 2 or more
biological siblings or to terminate the parental rights of 2 or more
alleged fathers of the same child. The bill would also permit a
single petition to be filed to free a child, or more than one child
if the children are biological siblings, from the custody and control
of both parents. The bill would authorize a court to grant one of
these joint petitions, in whole or in part, and would specify that
the court retains the discretion to bifurcate a case in which a joint
petition was filed. The bill would require a court to bifurcate a
case in which a joint petition was filed whenever it is necessary to
protect the interests of a party or a child who is the subject of the
proceeding.
(5) Existing law authorizes the court to waive the personal
appearance of a prospective adoptive parent and permit him or her to
appear at an adoption proceeding through an attorney if there is
clear and convincing evidence that it is impossible or impracticable
for the prospective adoptive parent to appear at the adoption
proceeding.
This bill would authorize the court to permit a prospective
adoptive parent to appear by telephone, videoconference, or other
remote electronic means that the court deems reasonable, prudent, and
reliable.
(6) Existing law governs independent adoptions, which are defined
to mean adoptions in which neither the State Department of Social
Services nor an agency licensed by that department is a party to or
joins in the adoption petition, and sets forth the procedures for
completing an independent adoption.
Existing law requires, as a part of the independent adoption
procedures, the department or the delegated county adoption agency to
investigate the proposed independent adoption and submit a report to
the court of the facts disclosed by its inquiry with a
recommendation regarding the granting of the adoption petition.
This bill would provide that when the department or a delegated
county adoption agency is investigating a proposed adoption, it is
not required to reinvestigate matters addressed in a valid
preplacement evaluation or a valid private agency adoption home
study, if no new information has been discovered and no new event has
occurred subsequent to the approval of the evaluation or home study
that creates a reasonable belief that further investigation is
necessary, except that the department must complete all background
clearances required by law.
Existing law also requires the department or a delegated county
adoption agency to interview the petitioners within 45 working days
after the filing of the adoption petition and to interview all
persons from whom consent is required and whose addresses are known,
as soon as 50% of the fee has been paid. Existing law requires the
agency, at the interview, to give the placing parent an opportunity
to sign either a statement revoking consent, or a waiver of the right
to revoke consent. In order to facilitate the interview, existing
law requires the petitioner, at the time the petition is filed, to
file, among other things, a copy of the petition and 50% of the fee,
with the department or with the delegated county adoption agency
responsible for the investigation of the adoption.
This bill would instead require the department or delegated county
adoption agency to interview the petitioners within 45 working days
after receiving 50% of the fee together with a stamped file copy of
the adoption petition, and to interview all persons from whom consent
is required and whose addresses are known. The bill would provide
that the department is not required to provide the placing parent an
opportunity to sign a statement revoking consent, or a waiver of the
right to revoke consent, if the parent has already signed a waiver of
the right to revoke consent, or if the time period allowed to revoke
consent has expired. The bill would require the petitioner, within 5
days of filing the petition, to provide the department or delegated
county adoption agency, among other things, a stamped file copy of
the petition together with 50% of the fee and a copy of any valid
preplacement evaluation or any valid private agency adoption home
study.
Existing law requires the court, in an independent adoption, if a
birth parent who did not place a child for adoption has refused to
give the required consent, or a birth parent revokes consent, or,
before the time when a revocable consent becomes permanent, a birth
parent requests the return of the child, to order the child restored
to the care and custody of the birth parent.
This bill would instead require, in these circumstances, the child
to be restored to the care and custody of his or her birth parent,
unless the court orders otherwise.
By imposing additional duties on delegated county adoption
agencies, this bill would impose a state-mandated local program.
(7) Existing law authorizes a parent who is a minor to relinquish
his or her child to the department, county adoption agency, or
licensed adoption agency and sign a consent for the adoption.
Existing law provides that the relinquishment and consent are not
subject to revocation by reason of minority.
This bill would also provide that the relinquishment and consent
are not subject to revocation because the parent or guardian of the
minor parent was not served with notice of the relinquishment or
consent, unless the minor parent previously provided written
authorization to serve his or her parent or guardian with those
notices.
(8) Existing law establishes the jurisdiction of the juvenile
court, which may adjudge certain children to be dependents of the
juvenile court under certain circumstances. In all cases in which a
minor is adjudged a dependent child of the juvenile court under those
circumstances, existing law authorizes the court to limit the
control to be exercised over the dependent child by any parent or
guardian. Existing law provides that those provisions do not limit
the ability of a parent to voluntarily relinquish his or her child to
the State Department of Social Services or to a county adoption
agency at any time while the child is a dependent child of the
juvenile court, if the department or county adoption agency is
willing to accept the relinquishment.
This bill would make those provisions applicable to a child who is
the subject of a petition to declare him or her a dependent child of
the juvenile court, and would specify that those provisions do not
limit the ability of the parent of a child who is the subject of a
petition to declare him or her a dependent child of the juvenile
court or a dependent child to voluntarily relinquish that child to a
licensed private adoption agency. The bill would require the juvenile
court, when a child who is the subject of a petition to declare him
or her a dependent child of the juvenile court, or a child who has
been adjudged a dependent child of the juvenile court, has been
relinquished to a licensed private adoption agency, after notice and
a hearing, to determine whether the relinquishment should be approved
or denied. The bill would authorize the court to dispense with
notice and a hearing and issue an ex parte order approving the
relinquishment if the relinquishment is accompanied by the written
agreement of all parties. The bill would require notification of a
parent relinquishing a child to a licensed private adoption agency
that the relinquishment is subject to court approval.
This bill would also require, when a child who is the subject of a
petition to declare him or her a dependent child of the juvenile
court, or a child who has been adjudged a dependent child of the
juvenile court, has been relinquished to the department or a county
adoption agency, the department or the county adoption agency to file
notice of the relinquishment with the court and all parties and
their counsel.
(9) This bill would incorporate additional changes to Section 361
of the Welfare and Institutions Code proposed by Senate Bill 977 that
would become operative if this bill and Senate Bill 977 are both
enacted and this bill is enacted last.
(10) 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.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7630 of the Family Code is amended to read:
7630. (a) A child, the child's natural mother, a person presumed
to be the child's parent under subdivision (a), (b), or (c) of
Section 7611, an adoption agency to whom the child has been
relinquished, or a prospective adoptive parent of the child may bring
an action as follows:
(1) At any time for the purpose of declaring the existence of the
parent and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the parent
and child relationship presumed under subdivision (a), (b), or (c) of
Section 7611 only if the action is brought within a reasonable time
after obtaining knowledge of relevant facts. After the presumption
has been rebutted, parentage of the child by another person may be
determined in the same action, if that person has been made a party.
(b) Any interested party may bring an action at any time for the
purpose of determining the existence or nonexistence of the parent
and child relationship presumed under subdivision (d) or (f) of
Section 7611.
(c) Except as to cases coming within Chapter 1 (commencing with
Section 7540) of Part 2, an action to determine the existence of the
parent and child relationship may be brought by the child, a personal
representative of the child, the Department of Child Support
Services, a presumed parent or the personal representative or a
parent of that presumed parent if that parent has died or is a minor,
or, in cases in which the natural mother is the only presumed parent
or an action under Section 300 of the Welfare and Institutions Code
or adoption is pending, a man alleged or alleging himself to be the
father or the personal representative or a parent of the alleged
father if the alleged father has died or is a minor.
(d) (1) If a proceeding has been filed under Chapter 2 (commencing
with Section 7820) of Part 4, an action under subdivision (a) or (b)
shall be consolidated with that proceeding. The parental rights of
the presumed parent shall be determined as set forth in Sections 7820
to 7829, inclusive.
(2) If a proceeding pursuant to Section 7662 has been filed under
Chapter 5 (commencing with Section 7660), an action under subdivision
(c) shall be consolidated with that proceeding. The parental rights
of the alleged natural father shall be determined as set forth in
Section 7664.
(3) The consolidated action under paragraph (1) or (2) shall be
heard in the court in which the proceeding under Section 7662 or
Chapter 2 (commencing with Section 7820) of Part 4 is filed, unless
the court finds, by clear and convincing evidence, that transferring
the action to the other court poses a substantial hardship to the
petitioner. Mere inconvenience does not constitute a sufficient basis
for a finding of substantial hardship. If the court determines there
is a substantial hardship, the consolidated action shall be heard in
the court in which the parentage action is filed.
(e) (1) If any prospective adoptive parent who has physical
custody of the child, any licensed California adoption agency that
has legal custody of the child or to which the mother proposes to
relinquish the child for adoption, or any person whom the mother has
designated as the prospective adoptive parent in a written statement
executed before a hospital social worker, an adoption service
provider, an adoption agency representative, or a notary public, has
not been joined as a party to an action to determine the existence of
a parent and child relationship under subdivision (a), (b), or (c),
or an action for custody by the alleged natural father, the court
shall join the prospective adoptive parent or licensed California
adoption agency as a party upon application or on its own motion,
without the necessity of a motion for joinder. A joined party shall
not be required to pay a fee in connection with this action.
(2) If a person brings an action to determine parentage and
custody of a child who he or she has reason to believe is in the
physical or legal custody of an adoption agency, or of one or more
persons other than the child's parent who are prospective adoptive
parents, he or she shall serve his or her entire pleading on, and
give notice of all proceedings to, the adoption agency or the
prospective adoptive parents, or both.
(f) A party to an assisted reproduction agreement may bring an
action at any time to establish a parent and child relationship
consistent with the intent expressed in that assisted reproduction
agreement.
(g) (1) In an action to determine the existence of the parent and
child relationship brought pursuant to subdivision (b), if the child'
s other parent has died and there are no existing court orders or
pending court actions involving custody or guardianship of the child,
then the persons having physical custody of the child shall be
served with notice of the proceeding at least 15 days prior to the
hearing, either by mail or in any manner authorized by the court. If
any person identified as having physical custody of the child cannot
be located, the court shall prescribe the manner of giving notice.
(2) If known to the person bringing the parentage action,
relatives within the second degree of the child shall be given notice
of the proceeding at least 15 days prior to the hearing, either by
mail or in any manner authorized by the court. If a person identified
as a relative of the second degree of the child cannot be located,
or his or her whereabouts are unknown or cannot be ascertained, the
court shall prescribe the manner of giving notice, or shall dispense
with giving notice to that person.
(3) Proof of notice pursuant to this subdivision shall be filed
with the court before the proceeding to determine the existence of
the parent and child relationship is heard.
SEC. 2. Section 7662 of the Family Code is amended to read:
7662. (a) If a mother relinquishes for or consents to, or
proposes to relinquish for or consent to, the adoption of a child, or
if a child otherwise becomes the subject of an adoption proceeding,
the agency or person to whom the child has been or is to be
relinquished, or the mother or the person having physical or legal
custody of the child, or the prospective adoptive parent, shall file
a petition to terminate the parental rights of the alleged father,
unless one of the following occurs:
(1) The alleged father's relationship to the child has been
previously terminated or determined not to exist by a court.
(2) The alleged father has been served as prescribed in Section
7666 with a written notice alleging that he is or could be the
biological father of the child to be adopted or placed for adoption
and has failed to bring an action for the purpose of declaring the
existence of the father and child relationship pursuant to
subdivision (c) of Section 7630 within 30 days of service of the
notice or the birth of the child, whichever is later.
(3) The alleged father has executed a written form developed by
the department to waive notice, to deny his paternity, relinquish the
child for adoption, or consent to the adoption of the child.
(b) The alleged father may validly execute a waiver or denial of
paternity before or after the birth of the child, and, once signed,
no notice of, relinquishment for, or consent to adoption of the child
shall be required from the alleged father for the adoption to
proceed.
(c) Except as provided in this subdivision and subdivision (d),
all proceedings affecting a child, including proceedings under
Divisions 8 (commencing with Section 3000) to 11 (commencing with
Section 6500), inclusive, Part 1 (commencing with Section 7500) to
Part 3 (commencing with Section 7600), inclusive, of this division,
and Part 1 (commencing with Section 1400), Part 2 (commencing with
Section 1500), and Part 4 (commencing with Section 2100) of Division
4 of the Probate Code, and any motion or petition for custody or
visitation filed in a proceeding under this part, shall be stayed.
The petition to terminate parental rights under this section is the
only matter that may be heard during the stay until the court issues
a final ruling on the petition.
(d) This section does not limit the jurisdiction of the court
pursuant to Part 3 (commencing with Section 6240) and Part 4
(commencing with Section 6300) of Division 10 with respect to
domestic violence orders, or pursuant to Article 6 (commencing with
Section 300) of Chapter 2 of Part 1 of Division 2 of the Welfare and
Institutions Code with respect to dependency proceedings.
SEC. 3. Section 7666 of the Family Code is amended to read:
7666. (a) Except as provided in subdivision (b), notice of the
proceeding shall be given to every person identified as the
biological father or a possible biological father in accordance with
the Code of Civil Procedure for the service of process in a civil
action in this state at least 10 days before the date of the
proceeding, except that publication or posting of the notice of the
proceeding is not required, and 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 or her parent or guardian. Proof of giving
the notice shall be filed with the court before the petition is
heard.
(b) Notice to a man identified as or alleged to be the biological
father shall not be required, and the court shall issue an order
dispensing with notice to him, under any of the following
circumstances:
(1) The relationship to the child has been previously terminated
or determined not to exist by a court.
(2) The alleged father has executed a written form to waive
notice, deny his paternity, relinquish the child for adoption, or
consent to the adoption of the child.
(3) The whereabouts or identity of the alleged father are unknown
or cannot be ascertained.
(4) The alleged father has been served with written notice of his
alleged paternity and the proposed adoption, and he has failed to
bring an action pursuant to subdivision (c) of Section 7630 within 30
days of service of the notice or the birth of the child, whichever
is later.
SEC. 4. Section 7671 is added to the Family Code, immediately
following Section 7670, to read:
7671. A single petition may be filed pursuant to Section 7662 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. A petition filed in
accordance with this section may be granted in whole or in part in
accordance with the procedures set forth in this chapter. The court
shall retain discretion to bifurcate any case in which the petition
was filed in accordance with this section, and shall do so whenever
it is necessary to protect the interests of a party or a child who is
the subject of the proceeding.
SEC. 5. Section 7807 of the Family Code is amended to read:
7807. (a) Sections 3020, 3022, 3040 to 3043, inclusive, and 3409
do not apply in a proceeding under this part.
(b) Except as provided in this subdivision and subdivision (c),
all proceedings affecting a child, including proceedings under
Divisions 8 (commencing with Section 3000) to 11 (commencing with
Section 6500), inclusive, Part 1 (commencing with Section 7500) to
Part 3 (commencing with Section 7600), inclusive, of this division,
and Part 1 (commencing with Section 1400), Part 2 (commencing with
Section 1500), and Part 4 (commencing with Section 2100) of Division
4 of the Probate Code, and any motion or petition for custody or
visitation filed in a proceeding under this part, shall be stayed.
The petition to free the minor from parental custody and control
under this section is the only matter that may be heard during the
stay until the court issues a final ruling on the petition.
(c) This section does not limit the jurisdiction of the court
pursuant to Part 3 (commencing with Section 6240) and Part 4
(commencing with Section 6300) of Division 10 with respect to
domestic violence orders, or pursuant to Article 6 (commencing with
Section 300) of Chapter 2 of Part 1 of Division 2 of the Welfare and
Institutions Code with respect to dependency proceedings.
SEC. 6. Section 7842 is added to the Family Code, immediately
following Section 7841, to read:
7842. A single petition may be filed under this part to free a
child, or more than one child if the children are biological
siblings, from the custody and control of both parents. A petition
filed in accordance with this section may be granted in whole or in
part in accordance with the procedures set forth in this chapter. The
court shall retain discretion to bifurcate any case in which the
petition was filed in accordance with this section, and shall do so
whenever it is necessary to protect the interests of a party or a
child who is the subject of the proceeding.
SEC. 7. Section 8603 of the Family Code is amended to read:
8603. (a) A married person, not lawfully separated from the
person's spouse, shall not adopt a child without the consent of the
spouse, provided that the spouse is capable of giving that consent.
(b) The consent of the spouse shall not establish any parental
rights or responsibilities on the part of the consenting spouse
unless he or she has consented to adopt the child in a writing filed
with the court and is named in the final decree as an adoptive
parent. The court shall not name the consenting spouse as an adoptive
parent in the final decree unless the consenting spouse has filed a
written consent to adopt the child with the court and has an approved
adoption home study.
(c) The court may dispense with the consent of a spouse who cannot
be located after diligent search, or a spouse determined by the
court to lack the capacity to consent. A spouse for whom consent was
dispensed shall not be named as an adoptive parent in the final
decree.
SEC. 8. Section 8604 of the Family Code is amended to read:
8604. (a) Except as provided in subdivision (b), a child having a
presumed father under Section 7611 shall not be adopted without the
consent of the child's birth parents, if living. The consent of a
presumed father is not required for the child's adoption unless he
became a presumed father as described in Chapter 1 (commencing with
Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2
of Division 12, or subdivision (a), (b), or (c) of Section 7611
before the mother's relinquishment or consent becomes irrevocable or
before the mother's parental rights have been terminated.
(b) If one birth parent has been awarded custody by judicial
order, or has custody by agreement of both parents, 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, but only after the birth parent not having
custody has been served with a copy of a citation in the manner
provided by law for the service of a summons in a civil action that
requires the birth parent not having custody to appear at the time
and place set for the appearance in court under Section 8718, 8823,
8913, or 9007.
(c) Failure of a birth parent to pay for the care, support, and
education of the child for the period of one year or failure of a
birth parent to communicate with the child for the period of one year
is prima facie evidence that the failure was willful and without
lawful excuse. If the birth parent or parents have made only token
efforts to support or communicate with the child, the court may
disregard those token efforts.
(d) (1) If the 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, in the physical care of a prospective
adoptive parent who has an approved preplacement evaluation or
private agency adoption home study, or in the hospital after
designating a licensed private adoption agency or an approved
prospective adoptive parent in a signed document, completed with a
hospital social worker, adoption service provider, licensed private
adoption agency worker, notary, or attorney, but fails to sign a
placement agreement, consent, or relinquishment for adoption, the
approved prospective adoptive parent or the licensed private 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.
(2) A temporary custody order issued pursuant to this subdivision
shall include all of the following:
(A) A requirement that the applicant keep the court informed of
the child's residence at all times.
(B) A requirement that the child shall not be removed from the
state or concealed within the state.
(C) The expiration date of the order, which shall not be more than
six months after the order is issued.
(3) 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.
SEC. 9. Section 8613.5 of the Family Code is amended to read:
8613.5. (a) (1) If it is impossible or impracticable for either
prospective adoptive parent to make an appearance in person, and the
circumstances are established by clear and convincing documentary
evidence, the court may, in its discretion, do either of the
following:
(A) Waive the personal appearance of the prospective adoptive
parent. The appearance may be made for the prospective adoptive
parent by counsel, commissioned and empowered in writing for that
purpose. The power of attorney may be incorporated in the adoption
petition.
(B) Authorize the prospective adoptive parent to appear by
telephone, videoconference, or other remote electronic means that the
court deems reasonable, prudent, and reliable.
(2) For purposes of this section, if the circumstances that make
an appearance in person by a prospective adoptive parent impossible
or impracticable are temporary in nature or of a short duration, the
court shall not waive the personal appearance of that prospective
adoptive parent.
(b) If the prospective adoptive parent is permitted to appear by
counsel, the agreement may be executed and acknowledged by the
counsel, or may be executed by the absent party before a notary
public, or any other person authorized to take acknowledgments
including the persons authorized by Sections 1183 and 1183.5 of the
Civil Code.
(c) If the prospective adoptive parent is permitted to appear by
counsel, or otherwise, the court may, in its discretion, cause an
examination of the prospective adoptive parent, other interested
person, or witness to be made upon deposition, as it deems necessary.
The deposition shall be taken upon commission, as prescribed by the
Code of Civil Procedure, and the expense thereof shall be borne by
the petitioner.
(d) The petition, relinquishment or consent, agreement, order,
report to the court from any investigating agency, and any power of
attorney and deposition shall be filed in the office of the clerk of
the court.
(e) The provisions of this section permitting an appearance by
counsel or electronically pursuant to subparagraph (B) of paragraph
(1) of subdivision (a) are equally applicable to the spouse of a
prospective adoptive parent who resides with the prospective adoptive
parent outside this state.
(f) If, pursuant to this section, neither prospective adoptive
parent need appear before the court, the child proposed to be adopted
need not appear. If the law otherwise requires that the child
execute any document during the course of the hearing, the child may
do so through counsel.
(g) If none of the parties appear, the court may not make an order
of adoption until after a report has been filed with the court
pursuant to Section 8715, 8807, 8914, or 9001.
SEC. 10. Section 8700 of the Family Code is amended to read:
8700. (a) Either birth parent may relinquish a child to the
department, county adoption agency, or licensed adoption agency for
adoption by a written statement signed before two subscribing
witnesses and acknowledged before an authorized official of the
department, county adoption agency, or licensed adoption 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, county
adoption agency, or licensed adoption agency, and the relinquishment
is not subject to revocation by the relinquishing parent by reason of
the minority, or because the parent or guardian of the relinquishing
minor parent was not served with notice that the relinquishing minor
parent relinquished his or her child for adoption, unless the
relinquishing minor parent has previously provided written
authorization to serve his or her parent or guardian with that
notice.
(c) If a parent resides outside this state and the other parent
has relinquished the child for adoption pursuant to subdivision (a)
or (d), the parent residing out of state may relinquish the child by
a written statement signed before a notary on a form prescribed by
the department, and previously signed by an authorized official of
the department, county adoption agency, or licensed adoption agency
that signifies the willingness of the department, county adoption
agency, or licensed adoption agency to accept the relinquishment.
(d) If a parent and child reside outside this state and the other
parent has not relinquished the child for adoption to the department,
county adoption agency, or licensed adoption agency, the parent
residing out of state may relinquish the child to the department,
county adoption agency, or licensed adoption agency by a written
statement signed by the relinquishing parent, after the following
requirements have been satisfied:
(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, county adoption agency, or licensed
adoption agency, that signifies the willingness of the department,
county adoption agency, or licensed adoption 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 county adoption agency or 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 applies:
(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, county adoption agency, 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, county adoption agency,
or licensed adoption agency.
(g) Notwithstanding subdivision (e), if the relinquishment names
the person or persons with whom placement by the department, county
adoption agency, 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, county adoption agency, or licensed
adoption 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, county adoption agency, or licensed
adoption agency shall rescind the relinquishment.
(2) If the relinquishing parent does not request rescission during
the 30-day period, the department, county adoption agency, or
licensed adoption agency shall select adoptive parents for the child.
(3) If the relinquishing parent and the department, county
adoption agency, 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) Subject to the requirements of subdivision (b) of Section 361
of the Welfare and Institutions Code, a parent may sign a
relinquishment of a child described in paragraph (1) of subdivision
(b) of Section 361 of the Welfare and Institutions Code. If the
relinquishment is to a licensed private adoption agency, the parent
shall be advised, in writing, that the relinquishment shall have no
effect and will be not
be filed with, or acknowledged by, the department, unless the court
approves the relinquishment pursuant to paragraph (3) of subdivision
(b) of Section 361 of the Welfare and Institutions Code. If the court
issues an order approving the relinquishment, the licensed private
adoption agency shall file the relinquishment and the order with the
department. If the court denies the relinquishment, the licensed
private adoption agency shall void the relinquishment and inform the
parent of that fact.
(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. 11. Section 8804 of the Family Code is amended to read:
8804. (a) Whenever the petitioners move to withdraw the petition
for the adoption or to dismiss the proceeding, the clerk of the court
in which the proceeding is pending shall immediately notify the
department at Sacramento of the action. The department or the
delegated county adoption agency shall file a full report with the
court recommending a suitable plan for the child in every case where
the petitioners move to withdraw the petition for the adoption or
where the department or delegated county adoption agency recommends
that the petition for adoption be denied and shall appear before the
court for the purpose of representing the child.
(b) Notwithstanding the withdrawal or dismissal of the petition,
the court may retain jurisdiction over the child for the purposes of
making any order for the child's custody that the court deems to be
in the child's best interest.
(c) If a birth parent who did not place a child for adoption as
specified in Section 8801.3 has refused to give the required consent,
or a birth parent revokes consent as specified in Section 8814.5,
the child shall be restored to the care and custody of the birth
parent or parents, unless the court orders otherwise, subject to
Section 3041.
SEC. 12. Section 8807 of the Family Code is amended to read:
8807. (a) Except as provided in subdivisions (b) and (c), within
180 days after receiving 50 percent of the fee, the department or
delegated county adoption agency shall investigate the proposed
independent adoption and, after the remaining balance of the fee is
paid, submit to the court a full report of the facts disclosed by its
inquiry with a recommendation regarding the granting of the
petition. If the petitioners have a valid preplacement evaluation or
a valid private agency adoption home study, as described in paragraph
(2) of subdivision (a) of Section 8810, and no new information has
been discovered and no new event has occurred subsequent to the
approval of the evaluation or home study that creates a reasonable
belief that further investigation is necessary, the department or
delegated county adoption agency may elect not to reinvestigate any
matters covered in the evaluation or home study, except that the
department shall complete all background clearances required by law.
(b) If the investigation establishes that there is a serious
question concerning the suitability of the petitioners, the care
provided to the child, or the availability of the consent to
adoption, the report shall be filed immediately.
(c) In its discretion, the court may allow additional time for the
filing of the report, after at least five days' notice to the
petitioner or petitioners and an opportunity for the petitioner or
petitioners to be heard with respect to the request for additional
time.
(d) If a petitioner is a resident of a state other than
California, an updated and current home study report, conducted and
approved by a licensed adoption agency or other authorized resource
in the state in which the petitioner resides, shall be reviewed and
endorsed by the department or delegated county adoption agency, if
the standards and criteria established for a home study report in the
other state are substantially commensurate with the home study
standards and criteria established in California adoption
regulations.
SEC. 13. Section 8808 of the Family Code is amended to read:
8808. (a) The department or delegated county adoption agency
shall interview the petitioners within 45 working days, excluding
legal holidays, after the department or delegated county adoption
agency receives 50 percent of the investigation fee together with a
stamped file copy of the adoption petition.
(b) The department or delegated county adoption agency shall
interview all persons from whom consent is required and whose
addresses are known. The interview with the placing parent or parents
shall include, but not be limited to, discussion of any concerns or
problems that the parent has with the placement and, if the placing
parent was not interviewed as provided in Section 8801.7, the content
required in that interview. At the interview, the agency shall give
the parent an opportunity to sign either a statement revoking the
consent, or a waiver of the right to revoke consent, as provided in
Section 8814.5, unless the parent has already signed a waiver or the
time period allowed to revoke consent has expired.
(c) In order to facilitate the interview described in this
section, within five business days of filing the petition, the
petitioners shall provide the department or delegated county adoption
agency a stamped file copy of the petition together with 50 percent
of the fee, a copy of any valid preplacement evaluation or any valid
private agency adoption home study, as described in paragraph (2) of
subdivision (a) of Section 8810, and the names, addresses, and
telephone numbers of all parties to be interviewed, if known.
SEC. 14. Section 8814 of the Family Code is amended to read:
8814. (a) Except as provided in Section 7662, the consent of the
birth parent or parents who did not place the child for adoption, as
described in Section 8801.3, to the adoption shall be signed in the
presence of an agent of the department or of a delegated county
adoption agency on a form prescribed by the department. The consent
shall be filed with the clerk of the appropriate superior court.
(b) The consent described in subdivision (a), when reciting that
the person giving it is entitled to the sole custody of the child and
when acknowledged before that agent, is prima facie evidence of the
right of the person making it to the sole custody of the child and
that person's sole right to consent.
(c) If the birth parent described in subdivision (a) is located
outside this state for an extended period of time unrelated to the
adoption at the time of signing the consent, the consent may be
signed before a notary or other person authorized to perform notarial
acts, and in that case the consent of the department or of the
delegated county adoption agency is also necessary.
(d) A birth parent who is a minor has the right to sign a consent
for the adoption of the birth parent's child and the consent is not
subject to revocation by the birth parent by reason of minority, or
because the parent or guardian of the consenting minor parent was not
served with notice that the minor parent consented to the adoption,
unless the minor parent has previously provided written authorization
to serve his or her parent or guardian with that notice.
SEC. 15. Section 8815 of the Family Code is amended to read:
8815. (a) Once the revocable consent to adoption has become
permanent as provided in Section 8814.5, the consent to the adoption
by the prospective adoptive parents may not be withdrawn.
(b) Before the time when the revocable consent becomes permanent
as provided in Section 8814.5, the birth parent or parents may
request return of the child. In that case the child shall immediately
be returned to the requesting birth parent or parents, unless a
court orders otherwise.
(c) If the person or persons with whom the child has been placed
have concerns that the birth parent or parents requesting return of
the child are unfit or present a danger of harm to the child, that
person or those persons may report their concerns to the appropriate
child welfare agency. These concerns shall not be a basis for failure
to immediately return the child, unless a court orders otherwise.
SEC. 16. Section 361 of the Welfare and Institutions Code is
amended to read:
361. (a) (1) In all cases in which a minor is adjudged a
dependent child of the court on the ground that the minor is a person
described by Section 300, the court may limit the control to be
exercised over the dependent child by any parent or guardian and
shall by its order clearly and specifically set forth all those
limitations. Any limitation on the right of the parent or guardian to
make educational or developmental services decisions for the child
shall be specifically addressed in the court order. The limitations
may not exceed those necessary to protect the child. If the court
specifically limits the right of the parent or guardian to make
educational or developmental services decisions for the child, or,
for the nonminor dependent, if the court finds the appointment of a
developmental services decisionmaker to be in the best interests of
the nonminor dependent, the court shall at the same time appoint a
responsible adult to make educational or developmental services
decisions for the child or nonminor dependent until one of the
following occurs:
(A) The minor reaches 18 years of age, unless the child or
nonminor dependent chooses not to make educational or developmental
services decisions for himself or herself, or is deemed by the court
to be incompetent.
(B) Another responsible adult is appointed to make educational or
developmental services decisions for the minor pursuant to this
section.
(C) The right of the parent or guardian to make educational or
developmental services decisions for the minor is fully restored.
(D) A successor guardian or conservator is appointed.
(E) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) of subdivision (g) of Section
366.21, Section 366.22, Section 366.26, or subdivision (i) of Section
366.3, at which time, for educational decisionmaking, the foster
parent, relative caretaker, or nonrelative extended family member as
defined in Section 362.7, has the right to represent the child in
educational matters pursuant to Section 56055 of the Education Code,
and for decisions relating to developmental services, unless the
court specifies otherwise, the foster parent, relative caregiver, or
nonrelative extended family member of the planned permanent living
arrangement has the right to represent the child or nonminor
dependent in matters related to developmental services.
(2) An individual who would have a conflict of interest in
representing the child or nonminor dependent may not be appointed to
make educational or developmental services decisions. For purposes of
this section, "an individual who would have a conflict of interest,"
means a person having any interests that might restrict or bias his
or her ability to make educational or developmental services
decisions, including, but not limited to, those conflicts of interest
prohibited by Section 1126 of the Government Code, and the receipt
of compensation or attorney's fees for the provision of services
pursuant to this section. A foster parent may not be deemed to have a
conflict of interest solely because he or she receives compensation
for the provision of services pursuant to this section.
(3) If the court limits the parent's educational rights pursuant
to this subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
If the court cannot identify a responsible adult who is known to
the child and available to make educational decisions for the child,
subparagraphs (A) to (E), inclusive, of paragraph (1) do not apply,
and the child has either been referred to the local educational
agency for special education and related services, or has a valid
individualized education program, the court shall refer the child to
the local educational agency for appointment of a surrogate parent
pursuant to Section 7579.5 of the Government Code.
If the court cannot identify a responsible adult to make
educational decisions for the child, the appointment of a surrogate
parent as defined in subdivision (a) of Section 56050 of the
Education Code is not warranted, and there is no foster parent to
exercise the authority granted by Section 56055 of the Education
Code, the court may, with the input of any interested person, make
educational decisions for the child.
(4) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's or nonminor dependent's information and records
pursuant to subdivision (u) of Section 4514 and subdivision (y) of
Section 5328, and to act on the child's or nonminor dependent's
behalf for the purposes of the individual program plan process
pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing
process pursuant to Chapter 7 (commencing with Section 4700) of
Division 4.5, and as set forth in the court order.
If the court cannot identify a responsible adult to make
developmental services decisions for the child or nonminor dependent,
the court may, with the input of any interested person, make
developmental services decisions for the child or nonminor dependent.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must be consistent with the child's or nonminor dependent's
individual program plan and pursuant to the provisions of the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)).
(5) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child. If an educational
representative or surrogate is appointed for the child, the
representative or surrogate shall meet with the child, shall
investigate the child's educational needs and whether those needs are
being met, and shall, prior to each review hearing held under this
article, provide information and recommendations concerning the child'
s educational needs to the child's social worker, make written
recommendations to the court, or attend the hearing and participate
in those portions of the hearing that concern the child's education.
(6) Nothing in this section in any way removes the obligation to
appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.
(b) (1) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services, to a county adoption agency, or to a licensed
private adoption agency at any time while the child is the subject of
a petition to declare him or her, or is, a dependent child of the
juvenile court, if the department, county adoption agency, or
licensed private adoption agency is willing to accept the
relinquishment.
(2) When accepting the relinquishment of a child described in
paragraph (1), the department or a county adoption agency shall
comply with Section 8700 of the Family Code and, within five court
days of accepting the relinquishment, shall file written notice of
that fact with the court and all parties to the case and their
counsel.
(3) When accepting the relinquishment of a child described in
paragraph (1), a licensed private adoption agency shall comply with
Section 8700 of the Family Code and, within five court days of
accepting the relinquishment, shall file with the court one original
and 10 copies of a request to approve the relinquishment. The clerk
of the court shall file the request under seal, subject to
examination only by the parties and their counsel or by others upon
court approval. If the request is accompanied by the written
agreement of all parties, the court may issue an ex parte order
approving the relinquishment. Unless approved pursuant to that
agreement, the court shall set the matter for hearing no later than
10 court days after filing, and shall provide notice of the hearing
to all parties and their counsel, and to the licensed private
adoption agency and its counsel. The licensed private adoption agency
and any prospective adoptive parent or parents named in the
relinquishment shall be permitted to attend the hearing and
participate as parties regarding the strictly limited issue of
whether the court should approve the relinquishment. The court shall
issue an order approving or denying the relinquishment within 10
court days after the hearing.
(c) A dependent child may not be taken from the physical custody
of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following
circumstances listed in paragraphs (1) to (5), inclusive, and, in an
Indian child custody proceeding, paragraph (6):
(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor's physical health can be
protected without removing the minor from the minor's parent's or
guardian's physical custody. The fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or
guardian with whom the minor resided at the time of injury. The court
shall consider, as a reasonable means to protect the minor, the
option of removing an offending parent or guardian from the home. The
court shall also consider, as a reasonable means to protect the
minor, allowing a nonoffending parent or guardian to retain physical
custody as long as that parent or guardian presents a plan acceptable
to the court demonstrating that he or she will be able to protect
the child from future harm.
(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor's emotional health may be
protected without removing the minor from the physical custody of his
or her parent or guardian.
(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate
him or her have been unsuccessful.
(6) In an Indian child custody proceeding, continued custody of
the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child, and that finding
is supported by testimony of a "qualified expert witness" as
described in Section 224.6.
(A) Stipulation by the parent, Indian custodian, or the Indian
child's tribe, or failure to object, may waive the requirement of
producing evidence of the likelihood of serious damage only if the
court is satisfied that the party has been fully advised of the
requirements of the federal Indian Child Welfare Act (25 U.S.C. Sec.
1901 et seq.), and has knowingly, intelligently, and voluntarily
waived them.
(B) Failure to meet non-Indian family and child-rearing community
standards, or the existence of other behavior or conditions that meet
the removal standards of this section, will not support an order for
placement in the absence of the finding in this paragraph.
(d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts, or, in the case of an Indian child custody proceeding,
whether active efforts as required in Section 361.7 were made and
that these efforts have proved unsuccessful. The court shall state
the facts on which the decision to remove the minor is based.
(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
(1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
(2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
SEC. 16.5. Section 361 of the Welfare and Institutions Code is
amended to read:
361. (a) (1) In all cases in which a minor is adjudged a
dependent child of the court on the ground that the minor is a person
described by Section 300, the court may limit the control to be
exercised over the dependent child by any parent or guardian and
shall by its order clearly and specifically set forth all those
limitations. Any limitation on the right of the parent or guardian to
make educational or developmental services decisions for the child
shall be specifically addressed in the court order. The limitations
may not exceed those necessary to protect the child. If the court
specifically limits the right of the parent or guardian to make
educational or developmental services decisions for the child, or,
for the nonminor dependent, if the court finds the appointment of a
developmental services decisionmaker to be in the best interests of
the nonminor dependent, the court shall at the same time appoint a
responsible adult to make educational or developmental services
decisions for the child or nonminor dependent until one of the
following occurs:
(A) The minor reaches 18 years of age, unless the child or
nonminor dependent chooses not to make educational or developmental
services decisions for himself or herself, or is deemed by the court
to be incompetent.
(B) Another responsible adult is appointed to make educational or
developmental services decisions for the minor pursuant to this
section.
(C) The right of the parent or guardian to make educational or
developmental services decisions for the minor is fully restored.
(D) A successor guardian or conservator is appointed.
(E) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) of subdivision (g) of Section
366.21, Section 366.22, Section 366.26, or subdivision (i) of Section
366.3, at which time, for educational decisionmaking, the foster
parent, relative caretaker, or nonrelative extended family member as
defined in Section 362.7, has the right to represent the child in
educational matters pursuant to Section 56055 of the Education Code,
and for decisions relating to developmental services, unless the
court specifies otherwise, the foster parent, relative caregiver, or
nonrelative extended family member of the planned permanent living
arrangement has the right to represent the child or nonminor
dependent in matters related to developmental services.
(2) An individual who would have a conflict of interest in
representing the child or nonminor dependent shall not be appointed
to make educational or developmental services decisions. For purposes
of this section, "an individual who would have a conflict of
interest" means a person having any interests that might restrict or
bias his or her ability to make educational or developmental services
decisions, including, but not limited to, those conflicts of
interest prohibited by Section 1126 of the Government Code, and the
receipt of compensation or attorney's fees for the provision of
services pursuant to this section. A foster parent shall not be
deemed to have a conflict of interest solely because he or she
receives compensation for the provision of services pursuant to this
section.
(3) If the court limits the parent's educational rights pursuant
to this subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
If the court cannot identify a responsible adult who is known to
the child and available to make educational decisions for the child,
subparagraphs (A) to (E), inclusive, of paragraph (1) do not apply,
and the child has either been referred to the local educational
agency for special education and related services, or has a valid
individualized education program, the court shall refer the child to
the local educational agency for appointment of a surrogate parent
pursuant to Section 7579.5 of the Government Code.
If the court
cannot identify a responsible adult to make educational decisions for
the child, the appointment of a surrogate parent as defined in
subdivision (a) of Section 56050 of the Education Code is not
warranted, and there is no foster parent to exercise the authority
granted by Section 56055 of the Education Code, the court may, with
the input of any interested person, make educational decisions for
the child.
(4) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's or nonminor dependent's information and records
pursuant to subdivision (u) of Section 4514 and subdivision (y) of
Section 5328, and to act on the child's or nonminor dependent's
behalf for the purposes of the individual program plan process
pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing
process pursuant to Chapter 7 (commencing with Section 4700) of
Division 4.5, and as set forth in the court order.
If the court cannot identify a responsible adult to make
developmental services decisions for the child or nonminor dependent,
the court may, with the input of any interested person, make
developmental services decisions for the child or nonminor dependent.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must be consistent with the child's or nonminor dependent's
individual program plan and pursuant to the provisions of the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)).
(5) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child. If an educational
representative or surrogate is appointed for the child, the
representative or surrogate shall meet with the child, shall
investigate the child's educational needs and whether those needs are
being met, and shall, prior to each review hearing held under this
article, provide information and recommendations concerning the child'
s educational needs to the child's social worker, make written
recommendations to the court, or attend the hearing and participate
in those portions of the hearing that concern the child's education.
(6) Nothing in this section in any way removes the obligation to
appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.
(b) (1) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services, to a county adoption agency, or to a licensed
private adoption agency at any time while the child is the subject of
a petition to declare him or her, or is, a dependent child of the
juvenile court, if the department, county adoption agency, or
licensed private adoption agency is willing to accept the
relinquishment.
(2) When accepting the relinquishment of a child described in
paragraph (1), the department or a county adoption agency shall
comply with Section 8700 of the Family Code and, within five court
days of accepting the relinquishment, shall file written notice of
that fact with the court and all parties to the case and their
counsel.
(3) When accepting the relinquishment of a child described in
paragraph (1), a licensed private adoption agency shall comply with
Section 8700 of the Family Code and, within five court days of
accepting the relinquishment, shall file with the court one original
and 10 copies of a request to approve the relinquishment. The clerk
of the court shall file the request under seal, subject to
examination only by the parties and their counsel or by others upon
court approval. If the request is accompanied by the written
agreement of all parties, the court may issue an ex parte order
approving the relinquishment. Unless approved pursuant to that
agreement, the court shall set the matter for hearing no later than
10 court days after filing, and shall provide notice of the hearing
to all parties and their counsel, and to the licensed private
adoption agency and its counsel. The licensed private adoption agency
and any prospective adoptive parent or parents named in the
relinquishment shall be permitted to attend the hearing and
participate as parties regarding the strictly limited issue of
whether the court should approve the relinquishment. The court shall
issue an order approving or denying the relinquishment within 10
court days after the hearing.
(c) A dependent child shall not be taken from the physical custody
of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following
circumstances listed in paragraphs (1) to (5), inclusive, and, in an
Indian child custody proceeding, paragraph (6):
(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor's physical health can be
protected without removing the minor from the minor's parent's or
guardian's physical custody. The fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or
guardian with whom the minor resided at the time of injury. The court
shall consider, as a reasonable means to protect the minor, each of
the following:
(A) The option of removing an offending parent or guardian from
the home.
(B) Allowing a nonoffending parent or guardian to retain physical
custody as long as that parent or guardian presents a plan acceptable
to the court demonstrating that he or she will be able to protect
the child from future harm.
(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor's emotional health may be
protected without removing the minor from the physical custody of his
or her parent or guardian.
(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate
him or her have been unsuccessful.
(6) In an Indian child custody proceeding, continued custody of
the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child, and that finding
is supported by testimony of a "qualified expert witness" as
described in Section 224.6.
(A) Stipulation by the parent, Indian custodian, or the Indian
child's tribe, or failure to object, may waive the requirement of
producing evidence of the likelihood of serious damage only if the
court is satisfied that the party has been fully advised of the
requirements of the federal Indian Child Welfare Act (25 U.S.C. Sec.
1901 et seq.), and has knowingly, intelligently, and voluntarily
waived them.
(B) Failure to meet non-Indian family and child-rearing community
standards, or the existence of other behavior or conditions that meet
the removal standards of this section, will not support an order for
placement in the absence of the finding in this paragraph.
(d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts, or, in the case of an Indian child custody proceeding,
whether active efforts as required in Section 361.7 were made and
that these efforts have proved unsuccessful. The court shall state
the facts on which the decision to remove the minor is based.
(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
(1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
(2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
SEC. 17. Section 16.5 of this bill incorporates amendments to
Section 361 of the Welfare and Institutions Code proposed by both
this bill and Senate Bill 977. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2015, (2) each bill amends Section 361 of the Welfare and
Institutions Code, and (3) this bill is enacted after Senate Bill
977, in which case Section 16 of this bill shall not become
operative.
SEC. 18. 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.
