Bill Text: CA AB2845 | 2021-2022 | Regular Session | Enrolled
Bill Title: Parent and child relationship.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Vetoed) 2022-09-27 - Vetoed by Governor. [AB2845 Detail]
Download: California-2021-AB2845-Enrolled.html
|
Enrolled
August 26, 2022 |
|
Passed
IN
Senate
August 23, 2022 |
|
Passed
IN
Assembly
August 24, 2022 |
|
Amended
IN
Senate
August 11, 2022 |
|
Amended
IN
Assembly
March 29, 2022 |
|
Amended
IN
Assembly
March 28, 2022 |
CALIFORNIA LEGISLATURE—
2021–2022 REGULAR SESSION
Assembly Bill
No. 2845
| Introduced by Assembly Member Patterson |
February 18, 2022 |
An act to amend Sections 7825, 7851, and 8616.5 of the Family Code, relating to parentage.
LEGISLATIVE COUNSEL'S DIGEST
AB 2845, Patterson.
Parent and child relationship.
(1) 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 if 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, as specified.
This bill would instead require the court to consider the parent’s criminal record, without reference to the timeline of the criminal record, when making the above-described determination.
Existing law requires certain individuals to render to the court a written report of the investigation with
a recommendation of the proper disposition to be made in the proceeding in the best interest of the child, and specifies the contents of that report.
This bill would recast and revise those provisions relating to the investigation and report, would add a social worker with the county child welfare department to the list of individuals, and would add to the required contents of the report a recommendation whether granting or denying the petition would serve the best interest of the child. The bill would authorize the court to order further investigation as it deems appropriate to the case, including, among other things, a summary of the child’s past and current living circumstances and residence history and a background summary regarding each nonagency party to the case. The bill would require each party to cooperate with the investigation, as specified. By
creating new duties for local officials relating to the investigation and report, the bill would impose a state-mandated local program.
(2) 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 additionally declare that some adoptive children may benefit from contact with nonrelative extended family members, as defined, and would also add a definition for birth relatives. The bill would recast and revise certain provisions relating to
postadoption contact agreements.
Existing law authorizes the court, at the time an adoption decree is entered, to grant postadoption privileges if an agreement for those privileges has been executed.
This bill would instead require the court to grant postadoption contact privileges, absent a specific finding that the privileges included in the agreement are not in the best interests of the child.
The bill would require each petitioner to inform the court in writing whether the petitioners have entered or plan to enter into a postadoption contact agreement. The bill would set forth related filing requirements for petitioners and adoption agencies, if applicable.
In the adoption of a child who is not in the legal custody of a public agency, if a postadoption contact agreement is executed but not approved by the court prior to finalization of the adoption, the bill would require the court, at any time during the child’s minority, upon the request of any signatory to the agreement or by the minor’s counsel, to enter the agreement as of the date of the adoption order, unless the court finds by clear and convincing evidence that it is not in the child’s best interest to do so. Under the bill, the court would have discretion to award attorney’s fees and damages against a licensed private adoption agency or any petitioner that fails
to remedy, within a reasonable time after notice thereof, a previous failure to comply with the filing requirements.
To the extent that these provisions would create new filing duties for local officials, the bill would impose a state-mandated local program.
(3) 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 with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
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. 2.
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 child 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 recommendation whether granting or denying the petition would serve the best interest of the child.
(c) The court may order further investigation as it deems appropriate to the case, including, but not limited to, a summary of the child’s past and current living circumstances and residence history, interviews with all real parties in interest, and 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.
(d) 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.
(e) Each party shall cooperate with the investigation. A petitioner’s
failure to cooperate with the investigation may be grounds for the investigator to recommend dismissal of, and for the court to dismiss, the petition.
(f) The court shall receive the report in evidence and shall read and consider its contents in rendering the court’s judgment.
SEC. 3.
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 postadoption contact with birth relatives, nonrelative extended family members, or an Indian tribe if the case is governed by the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) or the tribe is one described in Section 306.6 of the Welfare and Institutions Code. Those agreements are intended to ensure children of an achievable level of continuing contact when contact is beneficial to the children, and when the agreements are voluntarily executed.(b) (1) Each prospective adoptive
parent, any party described in subdivision (a), and the child may voluntarily execute a written agreement to permit continuing contact between them 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 request is granted.
(2) The terms of any postadoption contact agreement executed under this section may include provisions for visitation, contact, or sharing of information, or any combination thereof.
(c) At the time an
adoption decree is entered pursuant to an adoption request filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000, the court entering the decree shall grant postadoption contact privileges if an agreement for those privileges has been executed, including agreements executed pursuant to subdivision (f) of Section 8620, absent a specific finding that the privileges included in the agreement are not in the best interests of the child.
The hearing to grant the adoption request 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 request 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 request 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 request 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 adoption request. 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
signatories, 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 any signatory to the postadoption contact agreement 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) In every adoption, each petitioner shall inform the court in writing whether the petitioners have entered or plan to enter into a postadoption contact agreement. If the parties do enter into an agreement prior to finalization of the adoption, the terms of the agreement shall be
included on or attached to the original form or to an updated form, which shall be filed to reflect any changes after the initial filing and prior to the finalization hearing. In an agency adoption, each licensed private adoption agency consenting to or joining in the adoption shall be responsible to file with the court the signed form and all attachments, and any updates to the form. The agency shall provide a file-marked copy to all signatories to the agreement prior to the finalization of the adoption. In an independent adoption, public agency adoption, or stepparent adoption, the petitioner or petitioners shall file with the court
this signed form and all attachments, and any updates, and shall provide a file-marked copy to all signatories to the agreement prior to the finalization of the adoption.
(m) In the adoption of a child who is not in the legal custody of a public agency, if a postadoption contact agreement is executed but not approved by the court prior to finalization of the adoption, then at any time during the child’s minority, upon the request of any signatory to the agreement or by the minor’s counsel, the court shall enter the agreement as of the date of the adoption order, unless the court finds by clear and convincing
evidence that it is not in the child’s best interest to do so. The court shall have discretion to award attorney’s fees and damages against a licensed private adoption agency or any petitioner that fails to remedy, within a reasonable time after notice thereof, a previous failure to comply with the requirements of subdivision (l).
(n) For purposes of this section, the following definitions apply:
(1) “Birth relative” means any adult or minor 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) “Nonrelative extended family member” has the same meaning as set forth in Section 362.7 of the Welfare and Institutions Code.
SEC. 4.
To the extent that this act has an overall effect of increasing certain costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.However, if the Commission on State Mandates determines that this act contains other 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.
