Advokids Adoption Resources – Advokids: A Legal Resource for California Foster Children and Their Advocates

Adoption

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Adoption is the legal process which transfers parental rights to adoptive parents. There are different types of adoption. The information here will encompass the agency adoption process after parental rights have been terminated by a California juvenile dependency court (hereinafter referred to as the “court”).

After parental rights are terminated by the court (or relinquished by the birth parents), the court places the child for adoption with the county social services agency (or the state adoption agency if the county does not have an adoption unit). No one other than the prospective adoptive parents with whom the agency has placed the child for adoption can file a petition to adopt the child. California Family Code §8704(b). Prospective adoptive parents have to have had foster care placement of the child in their home for at least six months prior to qualifying for this designation and the child must be placed with them for adoption for at least six months before they may file an adoption petition.

The court retains dependency jurisdiction until an adoption petition is granted and reviews the status of the child every six months “to ensure that the adoption . . . is completed as expeditiously as possible.” Welfare and Institutions Code (WIC) §366.3. The agency has “exclusive custody and control of the child” until adoption is granted. See WIC §366.26(j); Calif. Fam. Code, § 8704(a); see also In re Shirley K. (2006) 140 Cal.App.4th 65. The court’s role is limited to reviewing adoptive placement decisions for abuse of discretion unless the child is placed with a caregiver who has either been designated as or meets the qualifications for “prospective adoptive parent,” in which case the agency may not remove the child from that placement without prior notice and an opportunity for a hearing before the court at which the agency must prove that removing the child from that placement is in the child’s best interests. WIC §366.26(n). For more information on Prospective Adoptive Parent, please visit this webpage.

After an adoption petition has been filed, the agency may remove the child from the prospective adoptive parents only with court approval and must submit an affidavit explaining the reasons for its refusal to consent to the adoption. The court may still order the adoption if it finds that the agency’s refusal to consent is not in the child’s best interest. See Calif. Fam. Code §8704(b).

Requirements for the Adoption Process

Filing the Adoption Petition

A petition for adoption must be filed in court. In many counties, the agency files the petition on behalf of the prospective adoptive parents. After a petition for adoption is filed, the court sets a hearing and proceeds with the adoption after the birth parents’ appeal rights are exhausted. (WIC § 366.26(b)(1).) The standard for granting an adoption petition is whether “the interest of the child will be promoted by the adoption.” The adoption petition refers to the following group of forms:

ADOPT-200: Adoption Request Form
- The information contained on this form provides necessary details for the judge about you and the child you intend to adopt.
ADOPT-210: Adoption Agreement Form
- This form must be signed at the time of the adoption hearing. This form states that you, the child (if over the age of 12), and any other persons affected by the adoption have agreed to the adoption. (Fill this form out but wait until the judge asks you to sign it)
ADOPT-215: Adoption Order Form
- This form will be signed by the judge when the adoption is approved.
ADOPT- 230: Adoption Expenses Form (for agency and independent adoptions only)
- The information on this form makes the judge aware of what payments were made related to the child you are adopting.

Post Adoption contact agreements must be filed with the adoption petition, and the agency’s report must address whether the agreement was entered into voluntarily and whether it is in the child’s best interest. To read more about post adoption contact agreements, please visit this page.

NOTE: Some appellate districts may have their own forms to file a Notice of Appeal. This Notice of Appeal form is used by Appellate Defenders, Inc. (ADI), the court appointed attorneys for the Fourth Appellate District (which includes appellants in San Diego, Imperial, Riverside, San Bernardino, Inyo, and Orange Counties).

The Agency's Adoption Report

A comprehensive court report is to be prepared within 180 days of filing the adoption petition pursuant to California Family Code section 8715. This report is to include the detailed facts of the case. Specifically, if the child is a dependent of the juvenile court and has been freed for adoption, the report must also address whether the requirements of Welfare and Institutions Code section 16002(e) have been met and whether any plans exist for post-adoption contact with the child's siblings or half-siblings.

Finalizing an Adoption

To finalize the adoption, there must be an adoption finalization hearing in court. Before the adoption finalization hearing, the prospective adoptive parents must sign an adoptive placement agreement and execute a post adoption contact agreement if applicable. Any adoption assistance rate agreement (AAP) must be negotiated and executed prior to adoption finalization (see AAP section below for more info).

During the adoption finalization hearing, the adoptive parent(s) may be asked to provide a brief testimony on why the adoption should be approved and the judge may ask follow up questions. If the child is 12 years old or older, the child will also have to sign the Adoption Agreement form. Younger children may sign but are not required to do so. Lastly, the judge will sign an adoption decree finalizing the adoption. Once the adoption is finalized, the adoptive parents have all the legal rights and responsibilities of the parent-child relationship. The legal rights and responsibilities that come with that new parent-child relationship are permanent and are exactly the same as those of birth parents.

Adoption Assistance Program

The California Adoption Assistance Program (AAP) provides financial and other support to help adoptive families meet the basic and unique needs of children in care, including making it easier for the families to access medical care, counseling or therapy, special equipment, tutoring programs, and other services. Adoption assistance is designed to ensure that children have the best possible chance of finding and thriving in an adoptive family. The request for AAP benefits, the eligibility determination, benefit negotiation and execution of the AAP agreement must be completed prior to the adoption finalization.

For more resources and information, please visit Families Rising California AAP webpage.

Birth Certificate Information

At the completion of the legal proceeding, a new birth certificate is issued for the child. To receive the new birth certificate, the following items must be mailed to the State Registrar at the California Department of Health Services.

A certified copy of the Court Report of Adoption (VS-44 rev. 5/2020)
A certified copy of the Adoption Order or of the Final Decree of Adoption (signed by the judge at the adoption finalization hearing).
A $20 fee (if the child was adopted outside of California).

Please note: A “certified” copy means that the order must be a copy of the order that was originally prepared by the court, not an original printout. In addition, the “certified copy” must have the following:

An original court seal.
A signature (or signature stamp) of the judge.
A signature (or signature stamp) of the court clerk.

Please visit this link for more information on how to request a birth certificate.

Obtaining Adoption Records

Adoption files are typically distinguished from juvenile dependency court files. For information on how to obtain juvenile case files, please visit this webpage on Accessing Juvenile Dependency Records.

Similar to juvenile court records, adoption records are confidential. Only the adopting parent, the adopting parent’s lawyer, the adoptee (if over the age of 18 for non- identifying information and over 21 for identifying information), and the birth parents (with consent of an adult adoptee) can get copies of court documents related to the adoption. The birth parent(s) may request information only if the adoptee has provided written consent and is over the age of 21. Similarly, the adoptee may request information about the birth parent(s) only if the birth parents have provided written consent. Please visit this link for more information on who can access adoption information.

To obtain adoption records, a petition must be filed in the clerk’s office of the superior court where the adoption was finalized. The petition must provide a good and compelling cause that the court should release the record(s). The court possesses sole discretion as to whether any information will be released. Please visit this link to locate the appropriate court’s contact information.

Adoption related fees and tax credits

At the time of drafting this information, adoptive parents could expect to pay a fee of no more than a $500 fee for a public agency adoption. The fee may be deferred, reduced, or waived under certain conditions. You should also expect to pay for fingerprinting, medical examination, court filing, and other adoption-related costs that usually total no more than $100-$300.

Families who adopt children who are eligible for AAP may qualify for the “non-recurring adoption expense program” which reimburses families for adoption related expenses that they incur during the adoption process. At the time of writing, the amount of reimbursement was been limited to $400 per child. The payment rate is determined on a case-by-case basis but generally is equivalent to the foster care rate. Adopted dependent children remain eligible for Medi-Cal regardless of the adoptive parents’ income. Adoptive parents remain eligible for AAP benefits even if they move out of county or out of state. In addition, adoptive parents are eligible for post adoption support services such as respite care, counseling/therapy, and facilitation of post adoption contact. For more information regarding this program, please visit this webpage.

Please note: Adoptive parents may qualify for a federal tax credit for certain expenses paid to adopt an eligible child with special needs and a state tax credit for adopting a child who was in the custody of a California public child welfare agency. For further information about the federal adoption tax benefit, contact the Internal Revenue Services (IRS) and request Publication 968. For further information about the state tax benefit, contact the California Franchise Tax Board and request information on Credit for Child Adoption Costs - Tax Credit Code 197.

At the time of writing this page, the fee for the cost of the investigation of an independent adoption petition was approximately $4,500. The fee for the cost of the investigation of an independent adoption petition for a family with a completed, approved pre-placement evaluation was $1,550. The pre-placement evaluation must meet the requirements of California Family Code Section 8811.5.

Services of an attorney are generally not necessary in an agency adoption. Although independent adoptions can be done without the involvement of an attorney in some instances, the involvement and consultation of a legal professional is generally desirable to ensure all legal requirements are met and the rights of the parties to the adoption are protected.