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AB-2390 The parent and child relationship.(2019-2020)

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Date Published: 04/27/2020 09:00 PM
AB2390:v97#DOCUMENT

Amended  IN  Assembly  May 04, 2020
Amended  IN  Assembly  March 11, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 2390


Introduced by Assembly Member Patterson

February 18, 2020


An act to amend Sections 7613, 7825, 7851, 8616.5, and 8802 of, and to add Section 8700.1 to, the Family Code, and to amend Section 6451 of the Probate Code, relating to the parent and child relationship.


LEGISLATIVE COUNSEL'S DIGEST


AB 2390, as amended, Patterson. The parent and child relationship.
(1) The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents, and provides rebuttable presumptions as to the parentage of a child born under the circumstances of conception through assisted reproduction using donated ova, sperm, or both. The act defines “assisted reproduction” for these purposes to mean conception by any means other than sexual intercourse.
This bill would establish that a provider of an embryo for use in assisted reproduction to an intended parent who is not the provider’s spouse or nonmarital partner is treated in law as if the provider is not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the provider and the intended parent intended for the provider to be a parent. If a donated embryo includes ova or sperm from a person other than a provider of the embryo, the bill would require that person’s consent to the donation unless the person has executed a writing to consent, waive, or relinquish their right to the embryo, or as otherwise ordered by a court of law.
(2) Existing law permits a proceeding to be brought for the purpose of having a child under 18 years of age declared free from the custody and control of either or both parents when the child’s parent or parents have been convicted of a felony of a nature that proves the unfitness of the parent or parents to have future custody and control of the child. Existing law authorizes the court to consider the parent’s criminal record prior to the felony conviction for these purposes.
This bill instead would require the court to consider the parent’s criminal record, and would not restrict that consideration to the period prior to the felony conviction.
Existing law authorizes specified individuals to provide the court with a written recommendation of the proper disposition to be made in the best interest of the child, and specifies the contents of that report.
This bill would recast and revise those provisions and would add to the required contents of the report a summary of the child’s past and current living circumstances and residence history, a background summary regarding each nonagency party to the case, and a recommendation whether granting or denying the petition would serve the child’s best interest. The bill would require each party to cooperate with the investigation.
(3) Existing law authorizes an adoption request for the adoption of a nondependent minor to be filed with the court in the county in which one of specified criteria applies and sets forth those individuals who may file an adoption request. Under existing law, an order of adoption is required to contain the child’s adopted name, but not the name of the child before the adoption.
This bill would add to the list of persons authorized to file an adoption request a person named in a court order terminating parental rights as the child’s legal guardian or prospective adoptive parent. The bill would require the adoption order to include both the child’s adopted name and the name of the child before the adoption. The bill would replace references to an adoption petition and refer instead to an adoption request.
(4) Existing law declares that some adoptive children may benefit from contact with birth relatives, as specified, after being adopted, and that 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 executed by the parties. Existing law requires the Judicial Council to adopt rules of court and forms for motions to enforce, terminate, or modify postadoption contact agreements.
This bill would specify the party responsible for filing the executed postadoption contact agreement with the court prior to the finalization of the adoption, in the case of agency adoptions, independent adoptions, and stepparent adoptions. If the responsible person or entity fails to file the executed postadoption contact agreement with the court prior to the finalization of the adoption, the bill would authorize any party to file the executed agreement in the court that finalized the adoption, as specified. The bill would make related conforming changes.
(5) Under existing law, when a parent is seeking to relinquish a child for adoption, the department or agency is required to 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, and, if so, to obtain specified additional information and notify the Indian tribe of the right to intervene in the proceeding on its own behalf or on behalf of a tribal member relative of the child. Existing law specifies procedures under which an Indian child may be relinquished for adoption, in compliance with the federal Indian Child Welfare Act (ICWA). Existing department regulations require an adoption agency to inform all parents of the option to place a holding period on the filing of a signed relinquishment, during which time the parent is permitted to revoke the relinquishment.
This bill would codify those regulations and would further require the agency, if the child is, or may be, a member of, or eligible for membership in, a tribal organization, to hold the signed relinquishment form until it is determined, as specified, whether the child is subject to the ICWA, in which case the agency would be required to void the relinquishment and inform the parent that they may proceed with relinquishment of the Indian child in accordance with the applicable provisions of existing law or request the return of the Indian child, as specified. By imposing additional requirements on county adoption agencies, the bill would create a state-mandated local program.
(6) Existing law provides, for purposes of intestate succession, that adoption severs the parent-child relationship.
This bill would except from that requirement a final adoption order that provides otherwise.
(7) 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 the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 7613 of the Family Code is amended to read:

7613.
 (a) (1) If a woman conceives through assisted reproduction with semen or ova or both donated by a donor who is not the woman’s spouse, with the consent of another intended parent, that intended parent is treated in law as if that intended parent is the natural parent of a child thereby conceived. The other intended parent’s consent shall be in writing and signed by the other intended parent and the woman conceiving through assisted reproduction.
(2) Failure to consent in writing, as required by paragraph (1), does not preclude the court from finding that the intended parent consented if the court finds by clear and convincing evidence that, prior to the conception of the child, the woman and the intended parent had an oral agreement that the woman and the intended parent would both be parents of the child.
(b) (1) The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if the donor is not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.
(2) If the semen is not provided to a licensed physician and surgeon or a licensed sperm bank as specified in paragraph (1), the donor of semen for use in assisted reproduction by a woman other than the donor’s spouse is treated in law as if the donor is not the natural parent of a child thereby conceived if either of the following are met:
(A) The donor and the woman agreed in a writing signed prior to conception that the donor would not be a parent.
(B) A court finds by clear and convincing evidence that the child was conceived through assisted reproduction and that, prior to the conception of the child, the woman and the donor had an oral agreement that the donor would not be a parent.
(3) Paragraphs (1) and (2) do not apply to a man who provided semen for use in assisted reproduction by a woman other than the man’s spouse pursuant to a written agreement signed by the man and the woman prior to conception of the child stating that they intended for the man to be a parent.
(c) The donor of ova for use in assisted reproduction by a person other than the donor’s spouse or nonmarital partner is treated in law as if the donor is not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the person providing ova and the person intended for the person providing ova to be a parent.
(d) (1) A provider of an embryo for use in assisted reproduction to an intended parent who is not the provider’s spouse or nonmarital partner is treated in law as if the provider is not the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the provider and the intended parent intended for the provider to be a parent.
(2) If a donated embryo includes ova or sperm from a person other than a provider of the embryo, that person’s consent to the donation is required unless that person has executed a writing to consent, waive, or relinquish their right to the embryo, or as otherwise ordered by a court of law.

SEC. 2.

 Section 7825 of the Family Code is amended to read:

7825.
 (a) A proceeding under this part may be brought where both of the following requirements are satisfied:
(1) The child is one whose parent or parents are convicted of a felony.
(2) The facts of the crime of which the parent or parents were convicted are of such a nature so as to prove the unfitness of the parent or parents to have the future custody and control of the child. In making a determination pursuant to this section, the court shall consider the parent’s criminal record to determine whether the criminal record demonstrates a pattern of behavior substantially related to the welfare of the child or the parent’s ability to exercise custody and control regarding the child.
(b) The mother of a child may bring a proceeding under this part against the father of the child, where the child was conceived as a result of an act in violation of Section 261 of the Penal Code, and where the father was convicted of that violation. For purposes of this subdivision, there is a conclusive presumption that the father is unfit to have custody or control of the child.

SEC. 3.

 Section 7851 of the Family Code is amended to read:

7851.
 (a) Upon the filing of the petition, an investigation as to the circumstances of the child and the allegations set forth in the petition shall be conducted by a juvenile probation officer, qualified court investigator, licensed clinical social worker, licensed marriage and family therapist, licensed professional clinical counselor, or social worker with the county welfare department.
(b) The investigator shall file a written report with the court, which shall include all of the following:
(1) A statement that the investigator explained to the child the nature of the proceeding to end parental custody and control.
(2) A statement of the child’s feelings and thoughts concerning the pending proceeding.
(3) A statement of the child’s attitude towards the child’s parent or parents and particularly whether or not the child would prefer living with the parent or parents.
(4) A statement that the child was informed of the child’s right to attend the hearing on the petition and the child’s feelings concerning attending the hearing.
(5) A summary of the child’s past and current living circumstances and residence history.
(6) A background summary regarding each nonagency party to the case, including, but not limited to, previous guardianship investigations and any criminal or child welfare agency history.
(7) A recommendation whether granting or denying the petition will serve the best interest of the child.
(c) If the age, or the physical, emotional, or other condition of the child precludes the child’s meaningful response to the explanations, inquiries, and information required by subdivision (b), a description of the condition shall satisfy the requirement of that subdivision.
(d) The court shall receive the report in evidence and shall read and consider its contents in rendering the court’s judgment.
(e) Each party shall cooperate with the investigation.

SEC. 4.

 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 any siblings, 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 executed by birth relatives, including the birth parent or parents or any siblings, or an Indian tribe, and adoptive parents. This section does not require all of the listed parties to participate in the development of a postadoption contact agreement in order for the agreement to be executed.
(b) (1) The adoption laws of this state do not prevent the adopting parent or parents, the birth relatives, including the birth parent or parents or any siblings, or an Indian tribe, and the child from voluntarily executing a written agreement to permit continuing contact between the birth relatives, including the birth parent or parents or any siblings, or an Indian tribe, and the child if the agreement is found by the court to have been executed 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.
(3) The terms of any postadoption contact agreement with birth relatives, including siblings, other than the child’s birth parent or parents shall be limited to the sharing of information about the child, unless the child has a preexisting relationship with the birth relative.
(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 executed, including agreements executed 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. A 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, including a sibling, 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).
(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 shall 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, including a sibling, 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, including a sibling, 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 execute 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 execute 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.
(l) As used in this section, “sibling” means a person related to the identified child by blood, adoption, or affinity through a common legal or biological parent.
(m) (1) (A) In an agency adoption, the adoption agency with legal custody of the child shall be responsible for filing the executed postadoption contact agreement, if any, with the court prior to the finalization of the adoption.
(B) In an independent or stepparent adoption, the petitioner or petitioners shall be responsible for filing the executed postadoption contact agreement, if any, with the court prior to the finalization of the adoption.
(2) If the responsible person or entity fails to file the executed postadoption contact agreement with the court prior to the finalization of the adoption, then at any time during the child’s minority, any party may file the executed agreement in the court that finalized the adoption, and may thereafter petition that court to enter the executed agreement nunc pro tunc to the date of the adoption finalization.

SEC. 5.

 Section 8700.1 is added to the Family Code, to read:

8700.1.
 (a) Except as provided in subdivision (b), the agency representative shall inform all parents who sign a relinquishment of the following options for the time period for filing the signed relinquishment form with the department:
(1) The parent may request that the agency file the signed relinquishment form without a holding period, in which case the agency may submit the relinquishment to the department on the next business day after the parent signs the relinquishment.
(2) The parent may request that the agency hold the signed relinquishment form for a specified period of up to 30 days before the agency submits it to the department for filing. This time period may be extended by written agreement of the agency and the parent.
(3) The parent may request that the agency hold the signed relinquishment form until the parental rights of all other parents of the child have been resolved by court order terminating parental rights, or by voluntary signature on a relinquishment form, Waiver Right to Further Notice of Adoption Planning, or Denial of Paternity. The agency shall notify the parent in writing within three business days after all other parental rights have been resolved, in order to free the child for adoption. The agency may then file the relinquishment on the fifth business day after that notification has been made.
(b) If the required inquiry pursuant to Section 8620 reveals that the child is, or may be, a member of, or eligible for membership in, an Indian tribe, the parent shall be advised that the agency is required to hold the signed relinquishment form until one of the following occurs:
(1) At least 60 days have passed since the service of all notices required by Section 8620, not all tribal responses have been received, no tribe has indicated that the child is a member or is eligible for membership, and a court has determined that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply, at which time the agency may file the relinquishment.
(2) The agency has received a response from every tribe that received notice pursuant to Section 8620, in which case the agency shall take one of the following actions, as applicable:
(A) If the tribal responses indicate that the child is not a member of, nor eligible for tribal membership in, any tribe, the agency shall notify the parent thereof in writing within three business days, and the agency may file the relinquishment on the fifth business day after that notification has been made.
(B) If one or more tribal responses indicate that the child is a member of, or is eligible for membership in, a tribe, the agency shall void the relinquishment. The agency representative shall inform the parent within three business days of the voided relinquishment, and simultaneously shall inquire whether the parent wishes to proceed with relinquishment of the Indian child pursuant to Section 8606.5, or whether the parent requests the return of the Indian child, in which case the agency shall take prompt action to assist the parent with the child’s return.
(c) The parent is permitted to revoke the relinquishment at any time prior to the expiration of any holding period and at any time before the relinquishment form is filed by the department. If the last day of the holding period falls on a weekend or legal holiday, the time to revoke the relinquishment shall be extended to the next working day following the weekend or holiday.

SEC. 6.

 Section 8802 of the Family Code is amended to read:

8802.
 (a) Any of the following persons who desire to adopt a child may, for that purpose, file an adoption request in a county authorized by Section 8609.5:
(1) An adult who is related to the child or the child’s half sibling by blood or affinity, including all relatives whose status is preceded by the words “step,” “great,” “great-great,” or “grand,” or the spouse of any of these persons, even if the marriage was terminated by death or dissolution.
(2) A person named in the will of a deceased parent as an intended adoptive parent where the child has no other parent.
(3) A person with whom a child has been placed for adoption, in which case a copy of the independent adoption placement agreement shall be attached to the petition.
(4) A person who has been the child’s legal guardian for more than one year. However, if the guardian was nominated by a parent for a purpose other than adoption and for a specified time period, or if the guardianship was established pursuant to Section 360 of the Welfare and Institutions Code, the guardianship shall have been in existence for at least two years. three years, unless parental rights have already been terminated.
(5) If the child is alleged to have been abandoned pursuant to Section 7822, a person who has been the child’s legal guardian for more than six months. The legal guardian may file a petition pursuant to Section 7822 in the same court and concurrently with the adoption request.
(6) A person named in a court order terminating parental rights as the child’s legal guardian or prospective adoptive parent.
(b) The court clerk shall immediately notify the department in Sacramento in writing of the pendency of the proceeding and of any subsequent action taken.
(c) The petition shall contain an allegation that the petitioners will file promptly with the department or delegated county adoption agency information required by the department in the investigation of the proposed adoption. The omission of the allegation from a petition does not affect the jurisdiction of the court to proceed or the validity of an adoption order or other order based on the petition.
(d) The caption of the adoption request shall contain the names of the petitioners, but not the child’s name. The body of the adoption request shall state the child’s sex and date of birth and the name the child had before adoption.
(e) If the child is the subject of a guardianship petition, the adoption request shall so state and shall include the caption and docket number or have attached a copy of the letters of the guardianship or temporary guardianship. The petitioners shall notify the court of any petition for guardianship or temporary guardianship filed after the adoption request. The guardianship proceeding shall be consolidated with the adoption proceeding, and the consolidated case shall be heard and decided in the court in which the adoption is pending.
(f) The order of adoption shall contain the child’s adopted name and the name the child had before adoption.

SEC. 7.

 Section 6451 of the Probate Code is amended to read:

6451.
 (a) Except as otherwise reflected in the final order of adoption, an adoption severs the relationship of parent and child between an adopted person and a natural parent of the adopted person unless both of the following requirements are satisfied:
(1) The natural parent and the adopted person lived together at any time as parent and child, or the natural parent was married to or cohabiting with the other natural parent at the time the person was conceived and died before the person’s birth.
(2) The adoption was by the spouse of either of the natural parents or after the death of either of the natural parents.
(b) Neither a natural parent nor a relative of a natural parent, except for a wholeblood brother or sister of the adopted person or the issue of that brother or sister, inherits from or through the adopted person on the basis of a parent and child relationship between the adopted person and the natural parent that satisfies the requirements of paragraphs (1) and (2) of subdivision (a), unless the adoption is by the spouse or surviving spouse of that parent.
(c) For the purpose of this section, a prior adoptive parent and child relationship is treated as a natural parent and child relationship.

SEC. 8.

 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.