The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the childs parents, including the mother and child relationship and the father and child relationship. The act governs actions to establish the existence or nonexistence of the parent and child relationship and requires notice of an action to be served, among others, on a natural parent, each person presumed to be a parent, and each man alleged to be a natural father.

This bill would authorize in an adoption proceeding an action to establish the existence or nonexistence of the parent and child relationship without notice and an opportunity to be heard given to a presumed father if it is specified factors are established by clear and convincing evidence evidence, including, among others, that the presumed father is not the biological father and the presumed father was so designated because of a reason other than he receives the child into his home and openly holds out the child as his natural child. father, he has never had a relationship with the child, and notice is not in the best interest of the child.

The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the childs parents, including the mother and child relationship and the father and child relationship. The act governs actions to establish the existence or nonexistence of the parent and child relationship and requires notice of an action to be served, among others, on a natural parent, each person presumed to be a parent, and each man alleged to be a natural father.

This bill would authorize an action to establish the existence or nonexistence of the parent and child relationship without notice and an opportunity to be heard given to a presumed father if it is established by clear and convincing evidence that the presumed father is not the biological father and the presumed father was so designated because of a reason other than he receives the child into his home and openly holds out the child as his natural child.

Date of Hearing: May 9, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1352

Author:(Friedman) – As Amended Ver:May 1, 2017

As Proposed to be Amended

SUBJECT: ADOPTION: ELIMINATION OF notice to a presumed father

KEY ISSUE: IN AN ADOPTION CASE, SHOULD A COURT BE GIVEN DISCRETION TO DISPENSE WITH NOTICE, based on clEAr and convincing evidence, of the adoption TO A NON-BIOLOGICAL PARENT WHO IS A presumed PARENT, but who never had a relationship with the child; IS THE SUBJECT OF A PERMANENT RESTRAINING ORDER protecting the mother; and whose recognition as a presumed parent is not in the child's best interest?

SYNOPSIS

Parents have rights to raise and have contact with their children that are strongly protected by the U.S. Constitution. In order to ensure that parents are not deprived of their parental rights without due process, the law requires that all persons who are, or who are reasonably thought to be, a child’s parents are properly notified about an adoption proceeding regarding the child. For example, existing law requires notice of an adoption action be given to every person identified as the biological father or a possible biological father of the subject child. This bill, sponsored by the Academy of California Adoption Lawyers, would allow a court to dispense with notice to a person who is a presumed parent of a child if the petitioner proves all of the following are proven by clear and convincing evidence: (1) The presumed parent has never had a relationship with the child or attempted to have a relationship with the child; (2) The presumed parent has not provided support to the mother of the child during her pregnancy with the child or after the child was born; (3) The presumed parent is subject to a domestic violence restraining order protecting the mother that was issued after a hearing; (4) The presumed parent is not a presumed parent under any other law; and (5) It is not in the best interests of the child to recognize the presumed parent as a presumed parent. Nevertheless, the bill would allow a court, even if the presumption of parentage is rebutted by clear and convincing evidence, and all of the above conditions are satisfied, to have full discretion to either dispense with notice or require notice, as the court determines is appropriate for the specific facts of the case. There is no opposition on file to the bill.

SUMMARY: Allows a court, in an adoption case, to dispense with notice to a person who is a presumed parent based on being married to the mother, but is not the biological parent of the child when the court makes specified findings. Specifically, this bill:

1. Provides a court in an adoption proceeding with the discretion to conduct an evidentiary hearing to determine whether the presumption of parentage has been rebutted and thereafter whether to dispense with notice to a presumed father or require notice, as provided, if all of the following are established by clear and convincing evidence:
   1. The presumed parent has never had a relationship with the child or attempted to have a relationship with the child.
   2. The presumed parent has not provided support to the mother of the child during her pregnancy with the child or after the child was born.
   3. The presumed parent is subject to a domestic violence restraining order protecting the mother that was issued after a hearing pursuant to Section 6340.
   4. The presumed parent is not a presumed parent under any law other than Section 7611.
   5. It is not in the best interests of the child to recognize the presumed parent as a presumed parent.
2. Provides that even if the presumption of parentage is rebutted by clear and convincing evidence under 1), above, the court retains full discretion to dispense with notice or require notice, as the court determines is appropriate for the specific facts of the case.

EXISTING LAW:

1. Establishes the California Uniform Parentage Act. Defines a parent and child relationship as the legal relationship between a child and the child’s natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. (Family Code Section 7600 et seq. Unless stated otherwise, all further statutory references are to that code.)
2. Provides that the child of a wife who is living with her husband, who is not sterile, is conclusively presumed to be a child of the marriage, except as provided. (Sections 7540-41.)
3. Provides that paternity may be established by voluntary declaration for unmarried parents, or through a civil action brought by any interested party, as specified. (Sections 7630, 7570 et seq.)
4. Defines a person as a presumed parent if, among other things: (a) the person was married to the child's mother and the child was born within 300 days of the marriage; (b) the person attempted to marry the child's mother; or (c) the person receives the child into his or her home and openly holds the child out as his or her own. (Section 7611.)
5. Permits a court in an appropriate case, as defined, to find that more than two individuals have valid claims of parentage. (Section 7612 (c).)
6. Provides that a parent and child relationship may be established:
   1. Between a child and the natural parent, it may be established by proof of having given birth to a child or as otherwise provided; and
   2. Between a child and an adoptive parent, it may be established by proof of adoption. (Section 7610.)
7. If two or more paternity presumptions conflict with one another, the presumption that is founded on the weightier considerations of policy and logic controls. The presumption may be rebutted by clear and convincing evidence. Provides that a presumption of parentage under Section 7611 is rebutted by a judgment establishing paternity of the child by another person, unless provided otherwise. (Section 7612.)
8. Except as provided, a child with a presumed father may not be adopted without the consent of the birth parents, if living. (Section 8604.)
9. Requires notice of an adoption proceeding to be given to every person identified as the biological father or a possible biological father if:
   1. The relationship to the child has been previously terminated or determined not to exist by a court.
   2. The alleged father has executed a written form to waive notice, deny his paternity, relinquish the child for adoption, or consent to the adoption of the child.
   3. The whereabouts or identity of the alleged father are unknown or cannot be ascertained.
   4. The alleged father has been served with written notice of his alleged paternity and the proposed adoption, and he has failed to bring an action, as provided. (Section 7666.)
10. Requires that if a mother relinquishes for or consents to, or proposes to relinquish for or consent to, the adoption of a child who has a presumed parent, the presumed parent shall be given notice of the adoption proceeding, unless that parent’s relationship to the child has been previously terminated or determined by a court not to exist or the presumed parent has voluntarily relinquished for or consented to the adoption of the child. (Section 7660.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: This bill would allow courts to dispense with notice in an adoption proceeding to a man who is a presumed father because he is married to the child's mother, but who is not the child's biological father and has not otherwise had any relationship with the child. The author explains the need for the bill as follows:

[I]t is a fairly frequent occurrence for a birthmother who seeks to place her child, born or unborn, for adoption to be married to one who is not the biological father and whom she has been estranged for a significant period of time . . . . In many of these cases, it can be proven that the presumed-but-not-biological father has been incarcerated, without access to conjugal visits, for a period longer than the possible gestation of the child. In other cases, the mother has a restraining order against him due to severe domestic violence in the past; giving notice would put her very life at risk. Sometimes the child is a product of sexual assault. In such cases, requiring notice of the adoption to a man who has no biological connection to, or actual parental relationship with the child unnecessarily subjects the biological mother to great physical danger, public disclosure of private facts, and other deep indignities that stem from the disclosures made via the notice process.

Parents have constitutionally protected rights regarding the adoption of their children. Parents have rights to raise and have contact with their children that are strongly protected by the U.S. Constitution. According to the U.S. Supreme Court, because “the relationship between parent and child is constitutionally protected,” an adoption can only occur if the legal parents either consented to the adoption or had their parentage rights terminated. (Quilloin v. Walcott (1978) 434 U.S. 246, 255.)

A person is presumed to be a child's legal parent and thus be entitled to these constitutionally protected rights if, among other things, he or she received the child into his or her home and openly held out the child as his or her own. (Section 7611.) A presumed parent – generally someone who is married to the child's mother, executed a voluntary paternity declaration, or lived with the child and held the child out as his or her own – has the same rights to the child as the birth mother and must either consent to the adoption or have his or her rights terminated. An alleged father, on the other hand, is generally a biological father who does not qualify as a presumed parent, but may nevertheless bring an action to determine parentage against a married couple. (V.S. v. M.L. (2013) 222 Cal.App.4^th 730.)

In order to ensure that parents are not deprived of their parental rights without due process, existing law requires that all persons who are, or who are reasonably thought to be, a child’s parents are properly notified about an adoption proceeding regarding the child. For example, existing law requires that notice of an adoption action be given to every person identified as the biological father or a possible biological father of the subject child. (Section 7666 (a).) Likewise, existing law provides that the natural parent and each person presumed to be a parent may be made a party to an adoption action but shall be given notice of such an action. (Section 7635 (b).)

The legislature has provided extremely limited opportunities to deny notice to a presumed parent, but only when the presumed parents had notice of earlier court proceedings regarding their child. Existing law generally requires that all presumed parents are given notice of an adoption proceeding. (Section 7660.) However, existing law provides for two limited exceptions to the requirement. A presumed parent is not required to be notified of adoption proceedings in either of the following circumstances: (1) when that parent’s relationship to the child has been previously terminated or determined by a court not to exist, or (2) when the presumed parent has voluntarily relinquished for or consented to the adoption of the child. (Ibid.) In both of those instances, however, the presumed parent at least has an opportunity to be notified of court proceedings. In one case, the presumed parent was required to be notified of a prior hearing regarding the child (i.e. to terminate parental rights). In the other case, the presumed parent consented to relinquishing his or her parental rights.

By contrast, under this bill, the presumed parent would not necessarily have been notified or aware of a prior court proceeding regarding the child. However, as described in more detail below, the presumed parent would have been given notice of, and an opportunity to be heard at, a hearing regarding a protective order prior to the court issuing the order to protect the mother of the child from the presumed parent.

The legislature has provided opportunities to rebut the presumption of parentage. Existing law provides that when two or more rebuttable presumptions arise about the parentage of a child (such as when there is a natural father, an estranged husband, or a “de facto” presumed father), the court has discretion to allow a rebuttal, and if so, to determine whether rebuttal of the presumption has been proven by clear and convincing evidence. (Section 7612 (b).) The trial court must then identify which presumption “is founded on the weightier considerations of policy and logic” and “make a determination which gives the greatest weight to [the child's] well-being.” (In re Jesusa V. (2004) 32 Cal. 4th 588, 606-607.) The court retains a great deal of discretion to determine whether it is appropriate to even allow the paternity presumption to be rebutted. Rebuttal is allowed “only in an appropriate case. . . A juvenile court confronted with such a claim must instead consider whether rebuttal of the presumption would be appropriate in the circumstances of the case.” (Id., at p. 606.)

This bill retains the clear and convincing standard to rebut the presumption of parentage. However, retention of the standard would not necessarily protect the rights of a presumed parent. Without being given notice of an adoption proceeding and had the opportunity to be heard at the proceeding, the presumed parent would never have the opportunity to make an argument on his or her behalf. In a case where the presumed parent is not notified of the adoption proceeding, the presumption of parentage is meaningless as a practical matter. Overcoming a presumption of parentage is significantly less burdensome to the petitioner if no one is arguing against her petition.

Nevertheless, the bill provides the court with the type of discretion that—according to the appellate court in In re Jesusa V.—is appropriate in adoption cases, especially when competing parentage claims may be involved. The bill gives the court discretion to either dispense with notice or require notice, as the court determines is appropriate for the specific facts of the case. As a result, the court would have wide discretion to determine whether a legitimate right to notice exists, or whether all the facts of the case, including the best interests of the child, justify dispensing with notice.

This bill provides a very narrow exception to the right that all presumed parents have to notice of adoption proceedings. This bill would allow a court to dispense with notice to a person who is a presumed parent of a child if the petitioner proves all of the following are proven by clear and convincing evidence: (1) The presumed parent has never had a relationship with the child or attempted to have a relationship with the child; (2) The presumed parent has not provided support to the mother of the child during her pregnancy with the child or after the child was born; (3) The presumed parent is subject to a domestic violence restraining order protecting the mother that was issued after a hearing; (4) The presumed parent is not a presumed parent under any other law; and (5) It is not in the best interests of the child to recognize the presumed parent as a presumed parent.

Considering all of these requirements, the bill is likely to apply to an admittedly small number of circumstances. As currently in print, the bill does not require that the presumed parent must be subject to a domestic violence restraining order that protects the mother which was issued after a hearing. As a result, the bill in print would apply on a far more general basis. Given the author’s stated need for the bill (to save a mother from being required to give notice to a former abuser, which “would put her very life at risk” or “unnecessarily subject the biological mother to great physical danger”) and the unprecedented nature of removing the requirement that a presumed parent be notified of adoption proceedings, this limitation appears to be appropriate.

REGISTERED SUPPORT / OPPOSITION:

Support

Academy of California Adoption Lawyers (sponsor)

Opposition

None on file

Analysis Prepared by: Alison Merrilees and Leora Gershenzon / JUD. / (916) 319-2334