Bill Text: CA AB941 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Adoption.

Spectrum: Partisan Bill (Democrat 7-0)

Status: (Passed) 2009-10-11 - Chaptered by Secretary of State - Chapter 492, Statutes of 2009. [AB941 Detail]

Download: California-2009-AB941-Amended.html

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BILL NUMBER: AB 941	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 20, 2009
	AMENDED IN ASSEMBLY  APRIL 2, 2009

INTRODUCED BY   Committee on Judiciary (Feuer (Chair), Brownley,
Evans, Jones, Krekorian, Lieu, and Monning)

                        FEBRUARY 26, 2009

   An act to amend Sections 8616.5, 8814.5, and 9007 of the Family
Code, relating to adoption.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 941, as amended, Committee on Judiciary. Adoption.
   Existing law allows for continuing contact between the birth
relatives and the child if  an   a postadoption
contact  agreement is entered into voluntarily and in the best
interests of the child at the time the adoption petition is granted.
Existing law limits postadoption contact to the sharing of
information about the child, unless the child had an existing
relationship with the birth relative.
   This bill would permit contact between the child and birth
relatives, including visitation and sharing of information, where
there was not an existing relationship, as specified.
   Existing law provides that, after a consent to an adoption is
signed by the birth parent or parents, the birth parent or parents
signing the consent have 30 days to take one of specified actions,
including signing a waiver of the right to revoke consent. Existing
law requires a waiver to be signed in the presence of a
representative of the department or the delegated county adoption
agency, or if the birth parents are represented by independent legal
counsel, the waiver can also be signed in the presence of a judicial
officer of the court of record or an adoption service provider.
Existing law allows for the witnessing and signing of a waiver of the
right to revoke consent by a birth parent living outside of
California to be conducted in the state where the birth parent is
located, as provided.
   This bill would allow for the adoption service provider who
advised the birth mother and witnessed the signing of the consent to
be the adoption service provider present for the signing of a waiver,
if the birth parents are represented by independent legal counsel.
 This bill would make these provisions applicable to waivers
signed in California. 
   Existing law requires that in a stepparent adoption the
prospective adoptive parent and the child proposed to be adopted
shall appear before the court, as specified.
   This bill would provide that 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, waive the
personal appearance of the prospective adoptive parent and the
appearance may be made for the prospective adoptive parent by
counsel, commissioned and empowered in writing for that purpose, as
specified.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 8616.5 of the Family Code is amended to read:
   8616.5.  (a) The Legislature finds and declares that some adoptive
children may benefit from either direct or indirect contact with
birth relatives, including the birth parent or parents or an Indian
tribe, after being adopted. Postadoption contact agreements are
intended to ensure children of an achievable level of continuing
contact when contact is beneficial to the children and the agreements
are voluntarily entered into by birth relatives, including the birth
parent or parents or an Indian tribe, and adoptive parents. Nothing
in this section requires all of the listed parties to participate in
the development of a postadoption contact agreement in order for the
agreement to be entered into.
   (b) (1) 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 or an Indian tribe,
and the child from voluntarily entering into a written agreement to
permit continuing contact between the birth relatives, including the
birth parent or parents or an 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 interests of the child at the time the
adoption petition is granted.
   (2) The terms of any postadoption contact agreement executed under
this section shall be limited to, but need not include, all of the
following:
   (A) Provisions for visitation between the child and a birth parent
or parents and other birth relatives, including siblings, and the
child's Indian tribe if the case is governed by the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
   (B) Provisions for future contact between a birth parent or
parents or other birth relatives, including siblings, or both, and
the child or an adoptive parent, or both, and in cases governed by
the Indian Child Welfare Act, the child's Indian tribe.
   (C) Provisions for the sharing of information about the child in
the future.
   (c) At the time an adoption decree is entered pursuant to a
petition filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000,
the court entering the decree may grant postadoption privileges if
an agreement for those privileges has been entered into, including
agreements entered into pursuant to subdivision (f) of Section 8620.
The hearing to grant the adoption petition and issue an order of
adoption may be continued as necessary to permit parties who are in
the process of negotiating a postadoption agreement to reach a final
agreement.
   (d) The child who is the subject of the adoption petition shall be
considered a party to the postadoption contact agreement. The
written consent to the terms and conditions of the postadoption
contact agreement and any subsequent modifications of the agreement
by a child who is 12 years of age or older is a necessary condition
to the granting of privileges regarding visitation, contact, or
sharing of information about the child, unless the court finds by a
preponderance of the evidence that the agreement, as written, is in
the best interests of the child. Any child who has been found to come
within Section 300 of the Welfare and Institutions Code or who is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code shall be
represented by an attorney for purposes of consent to the
postadoption contact agreement.
   (e) A postadoption contact agreement shall contain the following
warnings in bold type:
   (1) After the adoption petition has been granted by the court, the
adoption cannot be set aside due to the failure of an adopting
parent, a birth parent, a birth relative, an Indian tribe, or the
child to follow the terms of this agreement or a later change to this
agreement.
   (2) A disagreement between the parties or litigation brought to
enforce or modify the agreement shall not affect the validity of the
adoption and shall not serve as a basis for orders affecting the
custody of the child.
   (3) A court will not act on a petition to change or enforce this
agreement unless the petitioner has participated, or attempted to
participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute.
   (f) Upon the granting of the adoption petition and the issuing of
the order of adoption of a child who is a dependent of the juvenile
court, juvenile court dependency jurisdiction shall be terminated.
Enforcement of the postadoption contact agreement shall be under the
continuing jurisdiction of the court granting the petition of
adoption. The court may not order compliance with the agreement
absent a finding that the party seeking the enforcement participated,
or attempted to participate, in good faith in mediation or other
appropriate dispute resolution proceedings regarding the conflict,
prior to the filing of the enforcement action, and that the
enforcement is in the best interests of the child. Documentary
evidence or offers of proof may serve as the basis for the court's
decision regarding enforcement. No testimony or evidentiary hearing
shall be required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
   (g) The court may not award monetary damages as a result of the
filing of the civil action pursuant to subdivision (e) of this
section.
   (h) A postadoption contact agreement may be modified or terminated
only if either of the following occurs:
   (1) All parties, including the child if the child is 12 years of
age or older at the time of the requested termination or
modification, have signed a modified postadoption contact agreement
and the agreement is filed with the court that granted the petition
of adoption.
   (2) The court finds all of the following:
   (A) The termination or modification is necessary to serve the best
interests of the child.
   (B) There has been a substantial change of circumstances since the
original agreement was executed and approved by the court.
   (C) The party seeking the termination or modification has
participated, or attempted to participate, in good faith in mediation
or other appropriate dispute resolution proceedings prior to seeking
court approval of the proposed termination or modification.
   Documentary evidence or offers of proof may serve as the basis for
the court's decision. No testimony or evidentiary hearing shall be
required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
   (i) All costs and fees of mediation or other appropriate dispute
resolution proceedings shall be borne by each party, excluding the
child. All costs and fees of litigation shall be borne by the party
filing the action to modify or enforce the agreement when no party
has been found by the court as failing to comply with an existing
postadoption contact agreement. Otherwise, a party, other than the
child, found by the court as failing to comply without good cause
with an existing agreement shall bear all the costs and fees of
litigation.
   (j) The Judicial Council shall adopt rules of court and forms for
motions to enforce, terminate, or modify postadoption contact
agreements.
   (k) The court may not set aside a decree of adoption, rescind a
relinquishment, or modify an order to terminate parental rights or
any other prior court order because of the failure of a birth parent,
adoptive parent, birth relative, an Indian tribe, or the child to
comply with any or all of the original terms of, or subsequent
modifications to, the postadoption contact agreement, except as
follows:
   (1) Prior to issuing the order of adoption, in an adoption
involving an Indian child, the court may, upon a petition of the
birth parent, birth relative, or an Indian tribe, order the parties
to engage in family mediation services for the purpose of reaching a
postadoption contact agreement if the prospective adoptive parent
fails to negotiate in good faith to enter into a postadoption contact
agreement, after having agreed to enter into negotiations, provided
that the failure of the parties to reach an agreement is not in and
of itself proof of bad faith.
   (2) Prior to issuing the order of adoption, if the parties fail to
negotiate in good faith to enter into a postadoption contact
agreement during the negotiations entered into pursuant to and in
accordance with paragraph (1), the court may modify prior orders or
issue new orders as necessary to ensure the best interest of the
Indian child is met, including, but not limited to, requiring parties
to engage in further family mediation services for the purpose of
reaching a postadoption contact agreement, initiating guardianship
proceeding in lieu of adoption, or authorizing a change of adoptive
placement for the child.
  SEC. 2.  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 signed in the presence of an adoption
service provider, 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. 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.  The following provisions apply to waivers which
are signed within California. However 
 (D)     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. 3.  Section 9007 of the Family Code is amended to read:
   9007.  The prospective adoptive parent and the child proposed to
be adopted shall appear before the court pursuant to Sections 8612,
8613, and 8613.5.