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Chapter 1.5. Adoption Facilitators of California Family Law Code >> Division 13. >> Part 2. >> Chapter 1.5.
A person or organization is an adoption facilitator if the
person or organization is not licensed as an adoption agency by the
State of California and engages in either of the following
activities:
(a) Advertises for the purpose of soliciting parties to an adoption or locating children for an adoption or acting as an intermediary between the parties to an adoption.
(b) Charges a fee or other valuable consideration for services rendered relating to an adoption.
(a) Advertises for the purpose of soliciting parties to an adoption or locating children for an adoption or acting as an intermediary between the parties to an adoption.
(b) Charges a fee or other valuable consideration for services rendered relating to an adoption.
Any advertising by an adoption facilitator shall:
(a) Identify the name of the party placing the advertisement and shall state that the party is an adoption facilitator.
(b) Be subject to Section 17500 of the Business and Professions Code.
(c) Provide, in any written advertisement, the disclosure required by subdivision (a) in print that is the same size and typeface as the name required pursuant to subdivision (a) or any telephone number specified in the advertisement, whichever is the larger print size.
(d) Provide the disclosure required by subdivision (a) in the same color as the most prominent print in the advertisement where the advertisement contains more than one color.
(e) Present the disclosure required by subdivision (a) in a readily understandable manner and at the same speed and volume, if applicable, as the rest of the advertisement if the advertisement is a television advertisement.
(a) Identify the name of the party placing the advertisement and shall state that the party is an adoption facilitator.
(b) Be subject to Section 17500 of the Business and Professions Code.
(c) Provide, in any written advertisement, the disclosure required by subdivision (a) in print that is the same size and typeface as the name required pursuant to subdivision (a) or any telephone number specified in the advertisement, whichever is the larger print size.
(d) Provide the disclosure required by subdivision (a) in the same color as the most prominent print in the advertisement where the advertisement contains more than one color.
(e) Present the disclosure required by subdivision (a) in a readily understandable manner and at the same speed and volume, if applicable, as the rest of the advertisement if the advertisement is a television advertisement.
An adoption facilitator shall not:
(a) Mislead any person into believing, or imply by any document, including any form of advertising or by oral communications, that the adoption facilitator is a licensed adoption agency.
(b) Represent to any person that he or she is able to provide services for which the adoption facilitator is not properly licensed.
(c) Make use of photolisting to advertise minor children for placement in adoption.
(d) Post in any advertising specific information about particular minor children who are available for adoption placement.
(a) Mislead any person into believing, or imply by any document, including any form of advertising or by oral communications, that the adoption facilitator is a licensed adoption agency.
(b) Represent to any person that he or she is able to provide services for which the adoption facilitator is not properly licensed.
(c) Make use of photolisting to advertise minor children for placement in adoption.
(d) Post in any advertising specific information about particular minor children who are available for adoption placement.
An adoption facilitator shall disclose in the first oral
communication in which there is a description of services, that the
facilitator is not a licensed adoption agency.
If the facilitator is acting on behalf of more than one
party, all of the parties on whose behalf the facilitator is acting
shall have signed a written agreement authorizing the facilitator to
act on behalf of all of the parties.
An adoption facilitator shall report in writing to the
prospective adoptive parents all information that is provided to the
facilitator by the birthparents concerning a particular child.
For a period of 72 hours after signing a contract or after
the payment of any fee, the birthparents or the prospective adoptive
parents may revoke the contract and request the return of any fees
paid, without penalty, except for any reasonable fees actually earned
by the facilitator and which are supported by written records or
documentation.
The amount of fees paid to an adoption facilitator and any
fees or expenses an adoption facilitator pays to a third party shall
be reported to the court in the adoption accounting report as an
adoption-related expense.
All contracts entered into by an adoption facilitator shall
be in writing and, at a minimum, shall include the following:
(a) A statement that the adoption facilitator is not licensed by the State of California as an adoption agency.
(b) A statement disclosing on whose behalf the facilitator is acting.
(c) A statement that the information provided by any party is not confidential but that this waiver of confidentiality shall only apply to the parties to the facilitation contract and any disclosures required by Chapter 7 (commencing with Section 9200) of Part 2 of Division 13.
(d) A statement that the adoption facilitator cannot provide any services for which the facilitator is not properly licensed, such as legal or therapeutic counseling.
(e) A list of all the services that the adoption facilitator is required to provide under the contract.
(f) Notice that for a period of 72 hours after signing the contract any party may revoke the contract, and if a fee has been paid by the prospective adoptive parents, they may, within that 72-hour period, request the return of the fees paid, except for any reasonable fee actually earned by the facilitator that is supported by written record or documentation.
(a) A statement that the adoption facilitator is not licensed by the State of California as an adoption agency.
(b) A statement disclosing on whose behalf the facilitator is acting.
(c) A statement that the information provided by any party is not confidential but that this waiver of confidentiality shall only apply to the parties to the facilitation contract and any disclosures required by Chapter 7 (commencing with Section 9200) of Part 2 of Division 13.
(d) A statement that the adoption facilitator cannot provide any services for which the facilitator is not properly licensed, such as legal or therapeutic counseling.
(e) A list of all the services that the adoption facilitator is required to provide under the contract.
(f) Notice that for a period of 72 hours after signing the contract any party may revoke the contract, and if a fee has been paid by the prospective adoptive parents, they may, within that 72-hour period, request the return of the fees paid, except for any reasonable fee actually earned by the facilitator that is supported by written record or documentation.
The adoption facilitator shall also explain the terms of the
written contract verbally to the prospective adoptive parents and the
birthparents.
(a) The department shall establish and adopt regulations
for a statewide registration and enforcement process for adoption
facilitators. The department shall also establish and adopt
regulations to require adoption facilitators to post a bond as
required by this section.
(b) The department may adapt the process it uses to register adoption service providers in order to provide a similar registration process for adoption facilitators. The process used by the department shall include a procedure for determining the status of bond compliance by adoption facilitators, a means for accepting or denying organizations seeking inclusion in the adoption facilitator registry, a means for removing adoption facilitators from the adoption facilitator registry, and an appeals process for those entities denied inclusion in or removed from the adoption facilitator registry. The department may deny or revoke inclusion in the registry for adoption facilitators to an applicant who does not possess a criminal record clearance or exemption issued by the department pursuant to Section 1522 of the Health and Safety Code and the criminal record clearance regulations applicable to personnel of private adoption agencies. Criminal record clearances and exemptions granted to adoption facilitators are not transferable.
(c) Upon the establishment by the department of a registration process, all adoption facilitators that operate independently from a licensed public or private adoption agency or an adoption attorney in this state shall be required to register with the department.
(d) An adoption facilitator, when posting a bond, shall also file with the department a disclosure form containing the adoption facilitator's name, date of birth, residence address, business address, residence telephone number, business telephone number, and the number of adoptions facilitated for the previous year. Along with the disclosure form, the adoption facilitator shall provide all of the following information to the department:
(1) Proof that the facilitator and any member of the staff who provides direct adoption services has completed two years of college courses, with at least half of the units and hours focusing on social work or a related field.
(2) Proof that the facilitator and any member of the staff who provides direct adoption services has a minimum of three years of experience employed by a public or private adoption agency licensed by the department, a registered adoption facilitator, or an adoption attorney who assists in bringing adopting persons and placing parents together for the purpose of adoption placement.
(A) An adoption facilitator and any member of the staff subject to this paragraph may waive the educational and experience requirements by satisfying all of the following requirements:
(i) He or she has over five years of work experience providing direct adoption services for a licensed adoption agency.
(ii) He or she has not been found liable of malfeasance in connection with providing adoption services.
(iii) He or she provides three separate letters of support attesting to his or her ethics and work providing direct adoption services from any of the following:
(I) A licensed public or private adoption agency.
(II) A member of the Academy of California Adoption Lawyers.
(III) The State Department of Social Services.
(B) An adoption facilitator who is registered with the department may also register staff members under the designation of "trainee." A trainee may provide direct adoption services without meeting the requirements of this paragraph. Any trainee registered with the department shall be directly supervised by an individual who meets all registration requirements.
(3) A valid business license.
(4) A valid, current, government-issued identification to determine the adoption facilitator's identity, such as a California driver's license, identification card, passport, or other form of identification that is acceptable to the department.
(5) Fingerprint images for a background check to be used by the department for the purposes described in this section.
(e) The State Department of Social Services may submit fingerprint images of adoption facilitators to the Department of Justice for the purpose of obtaining criminal offender record information regarding state- and federal-level convictions and arrests, including arrests for which the Department of Justice establishes that the person is free on bail or on his or her recognizance pending trial or appeal.
(1) The Department of Justice shall forward to the Federal Bureau of Investigation requests for federal summary criminal history information received pursuant to this section. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and compile and disseminate a response to the department.
(2) The Department of Justice shall provide a response to the department pursuant to subdivision (m) of Section 11105 of the Penal Code.
(3) The department shall request from the Department of Justice subsequent arrest notification service, as provided pursuant to Section 11105.2 of the Penal Code.
(4) The Department of Justice shall charge a fee sufficient to cover the cost of processing the request described in this section.
(5) The department may only release an applicant's criminal record information search response as provided in subparagraph (G) of paragraph (4) of subdivision (a) of Section 1522 of the Health and Safety Code.
(f) The department may impose a fee upon applicants for each set of classifiable fingerprint cards that it processes pursuant to paragraph (5) of subdivision (d).
(g) The department shall post on its Internet Web site the registration and bond requirements required by this chapter and a list of adoption facilitators in compliance with the registration and bond requirements of this chapter. The department shall ensure that the information is current and shall update the information at least once every 30 days.
(h) The department shall develop the disclosure form required pursuant to subdivision (d) and shall make it available to any adoption facilitator posting a bond.
(i) The department may charge adoption facilitators an annual filing fee to recover all costs associated with the requirements of this section and that fee shall be set by regulation.
(j) The department may create an Adoption Facilitator Account for deposit of fees received from registrants.
(k) On or before January 1, 2008, the department shall make recommendations for the registry program to the Legislature, including a recommendation on how to implement a department program to accept and compile complaints against registered adoption facilitators and to provide public access to those complaints, by specific facilitator, through the department's Internet Web site.
(l) The adoption facilitator registry established pursuant to this section shall become operative on the first day of the first month following an appropriation from the Adoption Facilitator Account to the State Department of Social Services for the startup costs and the costs of administration of the adoption facilitator registry.
(b) The department may adapt the process it uses to register adoption service providers in order to provide a similar registration process for adoption facilitators. The process used by the department shall include a procedure for determining the status of bond compliance by adoption facilitators, a means for accepting or denying organizations seeking inclusion in the adoption facilitator registry, a means for removing adoption facilitators from the adoption facilitator registry, and an appeals process for those entities denied inclusion in or removed from the adoption facilitator registry. The department may deny or revoke inclusion in the registry for adoption facilitators to an applicant who does not possess a criminal record clearance or exemption issued by the department pursuant to Section 1522 of the Health and Safety Code and the criminal record clearance regulations applicable to personnel of private adoption agencies. Criminal record clearances and exemptions granted to adoption facilitators are not transferable.
(c) Upon the establishment by the department of a registration process, all adoption facilitators that operate independently from a licensed public or private adoption agency or an adoption attorney in this state shall be required to register with the department.
(d) An adoption facilitator, when posting a bond, shall also file with the department a disclosure form containing the adoption facilitator's name, date of birth, residence address, business address, residence telephone number, business telephone number, and the number of adoptions facilitated for the previous year. Along with the disclosure form, the adoption facilitator shall provide all of the following information to the department:
(1) Proof that the facilitator and any member of the staff who provides direct adoption services has completed two years of college courses, with at least half of the units and hours focusing on social work or a related field.
(2) Proof that the facilitator and any member of the staff who provides direct adoption services has a minimum of three years of experience employed by a public or private adoption agency licensed by the department, a registered adoption facilitator, or an adoption attorney who assists in bringing adopting persons and placing parents together for the purpose of adoption placement.
(A) An adoption facilitator and any member of the staff subject to this paragraph may waive the educational and experience requirements by satisfying all of the following requirements:
(i) He or she has over five years of work experience providing direct adoption services for a licensed adoption agency.
(ii) He or she has not been found liable of malfeasance in connection with providing adoption services.
(iii) He or she provides three separate letters of support attesting to his or her ethics and work providing direct adoption services from any of the following:
(I) A licensed public or private adoption agency.
(II) A member of the Academy of California Adoption Lawyers.
(III) The State Department of Social Services.
(B) An adoption facilitator who is registered with the department may also register staff members under the designation of "trainee." A trainee may provide direct adoption services without meeting the requirements of this paragraph. Any trainee registered with the department shall be directly supervised by an individual who meets all registration requirements.
(3) A valid business license.
(4) A valid, current, government-issued identification to determine the adoption facilitator's identity, such as a California driver's license, identification card, passport, or other form of identification that is acceptable to the department.
(5) Fingerprint images for a background check to be used by the department for the purposes described in this section.
(e) The State Department of Social Services may submit fingerprint images of adoption facilitators to the Department of Justice for the purpose of obtaining criminal offender record information regarding state- and federal-level convictions and arrests, including arrests for which the Department of Justice establishes that the person is free on bail or on his or her recognizance pending trial or appeal.
(1) The Department of Justice shall forward to the Federal Bureau of Investigation requests for federal summary criminal history information received pursuant to this section. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and compile and disseminate a response to the department.
(2) The Department of Justice shall provide a response to the department pursuant to subdivision (m) of Section 11105 of the Penal Code.
(3) The department shall request from the Department of Justice subsequent arrest notification service, as provided pursuant to Section 11105.2 of the Penal Code.
(4) The Department of Justice shall charge a fee sufficient to cover the cost of processing the request described in this section.
(5) The department may only release an applicant's criminal record information search response as provided in subparagraph (G) of paragraph (4) of subdivision (a) of Section 1522 of the Health and Safety Code.
(f) The department may impose a fee upon applicants for each set of classifiable fingerprint cards that it processes pursuant to paragraph (5) of subdivision (d).
(g) The department shall post on its Internet Web site the registration and bond requirements required by this chapter and a list of adoption facilitators in compliance with the registration and bond requirements of this chapter. The department shall ensure that the information is current and shall update the information at least once every 30 days.
(h) The department shall develop the disclosure form required pursuant to subdivision (d) and shall make it available to any adoption facilitator posting a bond.
(i) The department may charge adoption facilitators an annual filing fee to recover all costs associated with the requirements of this section and that fee shall be set by regulation.
(j) The department may create an Adoption Facilitator Account for deposit of fees received from registrants.
(k) On or before January 1, 2008, the department shall make recommendations for the registry program to the Legislature, including a recommendation on how to implement a department program to accept and compile complaints against registered adoption facilitators and to provide public access to those complaints, by specific facilitator, through the department's Internet Web site.
(l) The adoption facilitator registry established pursuant to this section shall become operative on the first day of the first month following an appropriation from the Adoption Facilitator Account to the State Department of Social Services for the startup costs and the costs of administration of the adoption facilitator registry.
Any person or entity that violates this chapter is subject to
a civil penalty of one thousand dollars ($1,000) or the amount of
the contract fees, whichever is greater.
Any contract entered into pursuant to this chapter is subject
to the rules and remedies relating to contracts generally.
(a) Prior to engaging in the business of, or acting in the
capacity of, an adoption facilitator, any person shall (1) obtain a
business license in the appropriate jurisdiction, and (2) post a bond
in the amount of twenty-five thousand dollars ($25,000), executed by
a corporate surety admitted to do business in this state, with the
department in accordance with Section 8632.5.
(b) The surety bond required by subdivision (a) shall be in favor of, and payable to, the people of the State of California and shall be for the benefit of any person damaged by fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the services of the adoption facilitator, or the agents, representatives, or employees of the adoption facilitator, while acting within the scope of that employment or agency.
(c) Whenever there is a recovery from a bond required by subdivision (a), the person shall replenish the bond or file a new bond if the former bond cannot be replenished in accordance with subdivision (a) before that person may conduct further business as an adoption facilitator.
(d) An adoption facilitator shall notify the department in writing within 30 days when a surety bond required by this section is renewed, and of any change of name, address, telephone number, or agent for service of process.
(b) The surety bond required by subdivision (a) shall be in favor of, and payable to, the people of the State of California and shall be for the benefit of any person damaged by fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the services of the adoption facilitator, or the agents, representatives, or employees of the adoption facilitator, while acting within the scope of that employment or agency.
(c) Whenever there is a recovery from a bond required by subdivision (a), the person shall replenish the bond or file a new bond if the former bond cannot be replenished in accordance with subdivision (a) before that person may conduct further business as an adoption facilitator.
(d) An adoption facilitator shall notify the department in writing within 30 days when a surety bond required by this section is renewed, and of any change of name, address, telephone number, or agent for service of process.
Notwithstanding the provisions of this chapter, an attorney
who provides services specified in Section 8623 related to
facilitating an adoption shall be subject only to those provisions of
law regulating the practice of law.
(a) Any person aggrieved by any violation of this chapter may
bring a civil action for damages, rescission, injunctive relief, or
any other civil or equitable remedy.
(b) If the court finds that a person has violated this chapter, it shall award actual damages, plus an amount equal to treble the amount of the actual damages or one thousand dollars ($1,000) per violation, whichever is greater.
(c) In any civil action under this chapter, a prevailing party may recover reasonable attorney's fees and costs.
(d) The Attorney General, a district attorney, or a city attorney may bring a civil action for injunctive relief, restitution, or other equitable relief against the adoption facilitator in the name of the people of the State of California.
(e) Any other person who, based upon information or belief, claims a violation of this chapter has been committed may bring a civil action for injunctive relief on behalf of the general public.
(b) If the court finds that a person has violated this chapter, it shall award actual damages, plus an amount equal to treble the amount of the actual damages or one thousand dollars ($1,000) per violation, whichever is greater.
(c) In any civil action under this chapter, a prevailing party may recover reasonable attorney's fees and costs.
(d) The Attorney General, a district attorney, or a city attorney may bring a civil action for injunctive relief, restitution, or other equitable relief against the adoption facilitator in the name of the people of the State of California.
(e) Any other person who, based upon information or belief, claims a violation of this chapter has been committed may bring a civil action for injunctive relief on behalf of the general public.
(a) Notwithstanding any other provision of this chapter, any
adoption facilitator who operates without having met the requirements
established in Section 8632.5 for inclusion into the adoption
facilitator registry may be assessed by the department an immediate
civil penalty in the amount of one hundred dollars ($100) per day of
the violation.
(b) The civil penalty authorized in subdivision (a) shall be imposed if an adoption facilitator is involved in the facilitation of adoptions and the adoption facilitator refuses to seek inclusion in the adoption facilitator registry or if the adoption facilitator's application for inclusion into the adoption facilitator registry is denied and the adoption facilitator continues to facilitate adoptions, unless other available remedies, including criminal prosecution, are deemed more effective by the department.
(c) An adoption facilitator may appeal the assessment to the director.
(d) The department shall adopt regulations implementing this section, including the appeal process authorized in subdivision (c).
(b) The civil penalty authorized in subdivision (a) shall be imposed if an adoption facilitator is involved in the facilitation of adoptions and the adoption facilitator refuses to seek inclusion in the adoption facilitator registry or if the adoption facilitator's application for inclusion into the adoption facilitator registry is denied and the adoption facilitator continues to facilitate adoptions, unless other available remedies, including criminal prosecution, are deemed more effective by the department.
(c) An adoption facilitator may appeal the assessment to the director.
(d) The department shall adopt regulations implementing this section, including the appeal process authorized in subdivision (c).
