Bill Text: CA AB2020 | 2009-2010 | Regular Session | Chaptered
Bill Title: Family law.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 588, Statutes of 2010. [AB2020 Detail]
Download: California-2009-AB2020-Chaptered.html
BILL NUMBER: AB 2020 CHAPTERED
BILL TEXT
CHAPTER 588
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2010
APPROVED BY GOVERNOR SEPTEMBER 30, 2010
PASSED THE SENATE AUGUST 11, 2010
PASSED THE ASSEMBLY AUGUST 16, 2010
AMENDED IN SENATE AUGUST 3, 2010
AMENDED IN SENATE JUNE 3, 2010
AMENDED IN ASSEMBLY APRIL 5, 2010
AMENDED IN ASSEMBLY MARCH 15, 2010
INTRODUCED BY Assembly Member Fletcher
FEBRUARY 17, 2010
An act to amend Sections 7630, 7662, 7667, 8620, 8710, 8814.5, and
9001 of, and to repeal Section 7631 of, the Family Code, and to
amend Section 1516.5 of the Probate Code, relating to family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 2020, Fletcher. Family law.
Existing law provides that a man may bring an action at any time
to determine that he is the father of a child having no presumed
father. Under existing law, a man who is not a presumed father may
bring an action to establish that he is the natural father of a child
having a presumed father if the mother has relinquished for, or
consents to, the adoption of the child, and requires that he bring
this action within 30 days after (1) he is served with notice that he
is or could be the father or (2) the birth of the child, whichever
is later.
This bill would delete the latter provisions relating to the time
periods in which a man may bring an action to establish paternity and
would instead provide that a man may bring an action at any time to
establish that he is the father of a child, subject to a specified
exception.
Existing law provides that if a mother consents to, or
relinquishes for, the adoption of a child, a petition to terminate
the parental rights of the father is required, subject to specified
exceptions, and an action to terminate the parental rights of the
father shall be set for a hearing.
This bill would authorize the court in an action to terminate
parental rights to dispense with a hearing and issue an ex parte
order terminating parental rights if the identity or whereabouts of
the alleged father is unknown, he has been served with a written
notice of his alleged paternity and the potential adoption and has
failed to respond, or he has signed a waiver of his right to notice
or a denial of paternity.
Existing law provides that if a child is being considered for
adoption, the State Department of Social Services or licensed
adoption agency is required to first consider adoptive placement in
the home of a relative, unless it is not in the child's best interest
or if other specified conditions exist, in which case the foster
parent of the child shall be considered along with all other
prospective adoptive parents, if certain criteria are met.
This bill would include the birth parent's refusal to consider a
relative or sibling placement for the child as a condition upon which
the foster parent of the child shall be considered for placement, if
certain criteria are met.
Under existing law, if a parent is seeking to relinquish a child
or execute an adoption placement agreement, the State Department of
Social Services, licensed adoption agency, or adoption service
provider is required to ask the child and the child's parent or
custodian whether the child is, or may be, a member of an Indian
tribe. Existing law provides that these entities are required to send
a specified notice and a request for confirmation of the child's
Indian status to any parent or custodian of the child, and to any
Indian tribe of which the child is, or may be, a member.
This bill would additionally include an attorney for the
prospective adoptive parents among the entities that are required to
send this notice and request for confirmation of a child's Indian
status.
Existing law provides that in each case of stepparent adoption,
the probation officer, qualified court investigator, licensed
clinical social worker, licensed marriage family therapist, or the
county welfare department is required to conduct an investigation.
This bill would additionally include a private licensed adoption
agency among the entities that are required to conduct the
investigation, and would require the adoption agency to assign the
investigation to a licensed clinical social worker or licensed
marriage and family therapist associated with the agency. The bill
would also require that any grievance regarding the investigation be
directed to the licensing authority of the clinical social worker or
marriage and family therapist.
Existing law provides that a court may appoint a guardian of the
person or estate of a minor child if it appears necessary or
convenient, as specified. Under existing law, a proceeding to have
the child declared free from the custody and control of one or both
parents may be brought in the guardianship proceeding if specified
requirements are met, including a requirement that the child has been
in the physical custody of the guardian for a period of not less
than 2 years.
This bill would provide that a proceeding to have a child who is
the subject of a guardianship declared free from the custody and
control of one or both parents may be brought in the guardianship
proceeding, in an adoption action, or in a separate action filed for
the purpose.
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 man presumed to
be the child's father 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
father and child relationship presumed under subdivision (a), (b), or
(c) of Section 7611.
(2) For the purpose of declaring the nonexistence of the father
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, paternity of the child by another man may be
determined in the same action, if he 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 father
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
father and child relationship may be brought by the child or personal
representative of the child, the Department of Child Support
Services, the mother or the personal representative or a parent of
the mother if the mother has died or is a minor, 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 father 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 paternity action is filed.
(e) (1) If any prospective adoptive parent who has physical
custody of the child, or any licensed California adoption agency that
has legal custody of the child, has not been joined as a party to an
action to determine the existence of a father 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 man brings an action to determine paternity and custody
of a child who he 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 mother who are prospective adoptive parents, he shall
serve his 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.
SEC. 2. Section 7631 of the Family Code is repealed.
SEC. 3. 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 father, unless one
of the following occurs:
(1) The father's relationship to the child has been previously
terminated or determined not to exist by a court.
(2) The father has been served as prescribed in Section 7666 with
a written notice alleging that he is or could be the natural 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 birth 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 birth father for the adoption to proceed.
(c) All proceedings affecting a child under Divisions 8
(commencing with Section 3000) to 11 (commencing with Section 6500),
inclusive, and Parts 1 (commencing with Section 7500) to 3
(commencing with Section 7600), inclusive, of this division, other
than an action brought pursuant to this section, shall be stayed
pending final determination of proceedings to terminate the parental
rights of the father pursuant to this section.
(d) Nothing in this section may 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.
SEC. 4. Section 7667 of the Family Code is amended to read:
7667. (a) Notwithstanding any other provision of law, an action
to terminate the parental rights of a father of a child as specified
in this part shall be set for hearing not more than 45 days after
filing of the petition therefor and completion of service thereon or
the entry of an order dispensing with notice of the proceedings. The
petition shall either specify the date of the hearing or state that a
hearing will be held on a date as determined pursuant to this
section, which shall be separately noticed.
(b) The matter so set shall have precedence over all other civil
matters on the date set for trial, except an action to terminate
parental rights pursuant to Part 4 (commencing with Section 7800).
(c) The court may dispense with a hearing and issue an ex parte
order terminating parental rights if any of the following apply:
(1) The identity or whereabouts of the father are unknown.
(2) The alleged father has validly executed a waiver of the right
to notice or a waiver or denial of paternity.
(3) 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. 5. Section 8620 of the Family Code is amended to read:
8620. (a) (1) If a parent is seeking to relinquish a child
pursuant to Section 8700 or execute an adoption placement agreement
pursuant to Section 8801.3, the department, licensed adoption agency,
or adoption service provider, as applicable, shall ask the child and
the child's parent or custodian whether the child is, or may be, a
member of, or eligible for membership in an Indian tribe or whether
the child has been identified as a member of an Indian organization.
The department, licensed adoption agency, or adoption service
provider, as applicable, shall complete the forms provided for this
purpose by the department and shall make this completed form a part
of the file.
(2) If there is any oral or written information that indicates
that the child is, or may be, an Indian child, the department,
licensed adoption agency, or adoption service provider, as
applicable, shall obtain the following information:
(A) The name of the child involved, and the actual date and place
of birth of the child.
(B) The name, address, date of birth, and tribal affiliation of
the birth parents, maternal and paternal grandparents, and maternal
and paternal great-grandparents of the child.
(C) The name and address of extended family members of the child
who have a tribal affiliation.
(D) The name and address of the Indian tribes or Indian
organizations of which the child is, or may be, a member.
(E) A statement of the reasons why the child is, or may be, an
Indian.
(3) (A) The department, licensed adoption agency, attorney for the
prospective adoptive parents, or adoption service provider shall
send a notice, which shall include information obtained pursuant to
paragraph (2) and a request for confirmation of the child's Indian
status, to any parent and any custodian of the child, and to any
Indian tribe of which the child is, or may be, a member or eligible
for membership. If any of the information required under paragraph
(2) cannot be obtained, the notice shall indicate that fact.
(B) The notice sent pursuant to subparagraph (A) shall describe
the nature of the proceeding and advise the recipient of the Indian
tribe's right to intervene in the proceeding on its own behalf or on
behalf of a tribal member relative of the child.
(b) The department shall adopt regulations to ensure that if a
child who is being voluntarily relinquished for adoption, pursuant to
Section 8700, is an Indian child, the parent of the child shall be
advised of his or her right to withdraw his or her consent and
thereby rescind the relinquishment of an Indian child for any reason
at any time prior to entry of a final decree of termination of
parental rights or adoption, pursuant to Section 1913 of Title 25 of
the United States Code.
(c) If a child who is the subject of an adoption proceeding after
being relinquished for adoption pursuant to Section 8700, is an
Indian child, the child's Indian tribe may intervene in that
proceeding on behalf of a tribal member relative of the child.
(d) Any notice sent under this section shall comply with Section
180.
(e) If all prior notices required by this section have been
provided to an Indian tribe, the Indian tribe receiving those prior
notices is encouraged to provide notice to the department and to the
licensed adoption agency or adoption service provider, not later than
five calendar days prior to the date of the hearing to determine
whether or not the final adoption order is to be granted, indicating
whether or not it intends to intervene in the proceeding required by
this section, either on its own behalf or on behalf of a tribal
member who is a relative of the child.
(f) The Legislature finds and declares that some adoptive children
may benefit from either direct or indirect contact with an Indian
tribe. Nothing in the adoption laws of this state shall be construed
to prevent the adopting parent or parents, the birth relatives,
including the birth parent or parents, an Indian tribe, and the
child, from voluntarily entering into a written agreement to permit
continuing contact between the Indian tribe and the child, if the
agreement is found by the court to have been entered into voluntarily
and to be in the best interest of the child at the time the adoption
petition is granted.
(g) With respect to giving notice to Indian tribes in the case of
voluntary placements of Indian children pursuant to this section, a
person, other than a birth parent of the child, shall be subject to a
civil penalty if that person knowingly and willfully:
(1) Falsifies, conceals, or covers up by any trick, scheme, or
device, a material fact concerning whether the child is an Indian
child or the parent is an Indian.
(2) Makes any false, fictitious, or fraudulent statement,
omission, or representation.
(3) Falsifies a written document knowing that the document
contains a false, fictitious, or fraudulent statement or entry
relating to a material fact.
(4) Assists any person in physically removing a child from the
State of California in order to obstruct the application of
notification.
(h) Civil penalties for a violation of subdivision (g) by a person
other than a birth parent of the child are as follows:
(1) For the initial violation, a person shall be fined not more
than ten thousand dollars ($10,000).
(2) For any subsequent violation, a person shall be fined not more
than twenty thousand dollars ($20,000).
SEC. 6. Section 8710 of the Family Code is amended to read:
8710. (a) If a child is being considered for adoption, the
department or licensed adoption agency shall first consider adoptive
placement in the home of a relative or, in the case of an Indian
child, according to the placement preferences and standards set out
in subdivisions (c), (d), (e), (f), (g), (h), and (i) of Section
361.31 of the Welfare and Institutions Code. However, if the birth
parent refuses to consider a relative or sibling placement, if a
relative is not available, if placement with an available relative is
not in the child's best interest, or if placement would permanently
separate the child from other siblings who are being considered for
adoption or who are in foster care and an alternative placement would
not require the permanent separation, the foster parent or parents
of the child shall be considered with respect to the child along with
all other prospective adoptive parents where all of the following
conditions are present:
(1) The child has been in foster care with the foster parent or
parents for a period of more than four months.
(2) The child has substantial emotional ties to the foster parent
or parents.
(3) The child's removal from the foster home would be seriously
detrimental to the child's well-being.
(4) The foster parent or parents have made a written request to be
considered to adopt the child.
(b) In the case of an Indian child whose foster parent or parents
or other prospective adoptive parents do not fall within the
placement preferences established in subdivision (c) or (d) of
Section 361.31 of the Welfare and Institutions Code, the foster
parent or parents or other prospective adoptive parents shall only be
considered if the court finds, supported by clear and convincing
evidence, that good cause exists to deviate from these placement
preferences.
(c) This section does not apply to a child who has been adjudged a
dependent of the juvenile court pursuant to Section 300 of the
Welfare and Institutions Code.
(d) Upon a request to move a child from a prospective adoptive
home for the purpose of placement with siblings or other relatives,
the court shall consider the best interests of the child.
SEC. 7. Section 8814.5 of the Family Code is amended to read:
8814.5. (a) After a consent to the adoption is signed by the
birth parent or parents pursuant to Section 8801.3 or 8814, the birth
parent or parents signing the consent shall have 30 days to take one
of the following actions:
(1) Sign and deliver to the department or delegated county
adoption agency a written statement revoking the consent and
requesting the child to be returned to the birth parent or parents.
After revoking consent, in cases where the birth parent or parents
have not regained custody, or the birth parent or parents have failed
to make efforts to exercise their rights under subdivision (b) of
Section 8815, a written notarized statement reinstating the original
consent may be signed and delivered to the department or delegated
county adoption agency, in which case the revocation of consent shall
be void and the remainder of the original 30-day period shall
commence. After revoking consent, in cases in which the birth parent
or parents have regained custody or made efforts to exercise their
rights under subdivision (b) of Section 8815 by requesting the return
of the child, upon the delivery of a written notarized statement
reinstating the original consent to the department or delegated
county adoption agency, the revocation of consent shall be void and a
new 30-day period shall commence. The birth mother shall be informed
of the operational timelines associated with this section at the
time of signing of the statement reinstating the original consent.
(2) (A) Sign a waiver of the right to revoke consent on a form
prescribed by the department in the presence of any of the following:
(i) A representative of the department or delegated county
adoption agency.
(ii) A judicial officer of a court of record if the birth parent
is represented by independent legal counsel.
(iii) An adoption service provider, including, but not limited to,
the adoption service provider who advised the birth mother and
witnessed the signing of the consent, if the birth parent or parents
are represented by independent legal counsel. The adoption service
provider shall ensure that the waiver is delivered to the department,
the petitioners, or their counsel no earlier than the end of the
business day following the signing of the waiver. The adoption
service provider shall inform the birth parent that during this time
period he or she may request that the waiver be withdrawn and that,
if he or she makes that request, the waiver shall be withdrawn.
(B) An adoption service provider may assist the birth parent or
parents in any activity where the primary purpose of that activity is
to facilitate the signing of the waiver with the department, a
delegated county agency, or a judicial officer. The adoption service
provider or another person designated by the birth parent or parents
may also be present at any interview conducted pursuant to this
section to provide support to the birth parent or parents, except
when the interview is conducted by independent legal counsel for the
birth parent or parents.
(C) The waiver of the right to revoke consent may not be signed
until an interview has been completed by the department or delegated
county adoption agency unless the waiver of the right to revoke
consent is signed in the presence of a judicial officer of a court of
record or an adoption service provider as specified in this section.
If the waiver is signed in the presence of a judicial officer, the
interview and the witnessing of the signing of the waiver shall be
conducted by the judicial officer. If the waiver is signed in the
presence of an adoption service provider, the interview shall be
conducted by the independent legal counsel for the birth parent or
parents. If the waiver is to be signed in the presence of an adoption
service provider, prior to the waiver being signed the waiver shall
be reviewed by the independent legal counsel who (i) counsels the
birth parent or parents about the nature of his or her intended
waiver and (ii) signs and delivers to the birth parent or parents and
the department a certificate in substantially the following form:
I, (name of attorney), have counseled my client, (name of client), on
the nature and legal effect of the waiver of right to revoke consent
to adoption. I am so disassociated from the interest of the
petitioner(s)/prospective adoptive parent(s) as to be in a position
to advise my client impartially and confidentially as to the
consequences of the waiver. (Name of client) is aware that California
law provides for a 30-day period during which a birth parent may
revoke consent to adoption. On the basis of this counsel, I conclude
that it is the intent of (name of client) to waive the right to
revoke, and make a permanent and irrevocable consent to adoption.
(Name of client) understands that he/she will not be able to regain
custody of the child unless the petitioner(s)/prospective adoptive
parent(s) agree(s) to withdraw their petition for adoption or the
court denies the adoption petition.
(D) Within 10 working days of a request made after the department
or the delegated county adoption agency has received a copy of the
petition for the adoption and the names and addresses of the persons
to be interviewed, the department or the delegated county adoption
agency shall interview, at the department or agency office, any birth
parent requesting to be interviewed.
(E) Notwithstanding subparagraphs (A) and (C), the interview, and
the witnessing of the signing of a waiver of the right to revoke
consent of a birth parent residing outside of California or located
outside of California for an extended period of time unrelated to the
adoption may be conducted in the state where the birth parent is
located, by any of the following:
(i) A representative of a public adoption agency in that state.
(ii) A judicial officer in that state where the birth parent is
represented by independent legal counsel.
(iii) An adoption service provider.
(3) Allow the consent to become a permanent consent on the 31st
day after signing.
(b) The consent may not be revoked after a waiver of the right to
revoke consent has been signed or after 30 days, beginning on the
date the consent was signed or as provided in paragraph (1) of
subdivision (a), whichever occurs first.
SEC. 8. Section 9001 of the Family Code is amended to read:
9001. (a) The probation officer, qualified court investigator,
licensed clinical social worker, licensed marriage family therapist,
private licensed adoption agency, or, at the option of the board of
supervisors, the county welfare department in the county in which the
adoption proceeding is pending shall make an investigation of each
case of stepparent adoption. The court may not make an order of
adoption until after the probation officer, qualified court
investigator, licensed clinical social worker, licensed marriage
family therapist, private licensed adoption agency, or county welfare
department has filed its report and recommendation and they have
been considered by the court.
(b) If a private licensed adoption agency conducts the
investigation, it shall assign the investigation to a licensed
clinical social worker or licensed marriage and family therapist
associated with the agency. Any grievance regarding the investigation
shall be directed to the licensing authority of the clinical social
worker or marriage and family therapist, as applicable.
(c) Unless ordered by the court, no home study may be required of
the petitioner's home in a stepparent adoption. The agency conducting
the investigation or any interested person may request the court to
order a home study or the court may order a home study on its own
motion.
(d) "Home study" as used in this section means a physical
investigation of the premises where the child is residing.
(e) Nothing in this section shall be construed to require the
State Department of Social Services to issue regulations for
stepparent adoptions.
SEC. 9. Section 1516.5 of the Probate Code is amended to read:
1516.5. (a) A proceeding to have a child declared free from the
custody and control of one or both parents may be brought in
accordance with the procedures specified in Part 4 (commencing with
Section 7800) of Division 12 of the Family Code within an existing
guardianship proceeding, in an adoption action, or in a separate
action filed for that purpose, if all of the following requirements
are satisfied:
(1) One or both parents do not have the legal custody of the
child.
(2) The child has been in the physical custody of the guardian for
a period of not less than two years.
(3) The court finds that the child would benefit from being
adopted by his or her guardian. In making this determination, the
court shall consider all factors relating to the best interest of the
child, including, but not limited to, the nature and extent of the
relationship between all of the following:
(A) The child and the birth parent.
(B) The child and the guardian, including family members of the
guardian.
(C) The child and any siblings or half siblings.
(b) The court shall appoint a court investigator or other
qualified professional to investigate all factors enumerated in
subdivision (a). The findings of the investigator or professional
regarding those issues shall be included in the written report
required pursuant to Section 7851 of the Family Code.
(c) The rights of the parent, including the rights to notice and
counsel provided in Part 4 (commencing with Section 7800) of Division
12 of the Family Code, shall apply to actions brought pursuant to
this section.
(d) This section does not apply to any child who is a dependent of
the juvenile court or to any Indian child.
