MINUTES OF THE meeting
of the
ASSEMBLY Committee on Judiciary
SUBCOMMITTEE ON ASSEMBLY BILL 28
Seventy-Second Session
March 12, 2003
The Committee on Judiciary’s Subcommittee on Assembly Bill 28was called to order at 3:41 p.m., on Wednesday, March 12, 2003. Chairman William Horne presided in Room 3138 of the Legislative Building, Carson City, Nevada, and, via simultaneous videoconference, in Room 4406 of the Grant Sawyer State Office Building, Las Vegas, Nevada. Exhibit A is the Agenda. Exhibit B is the Guest List. All exhibits are available and on file at the Research Library of the Legislative Counsel Bureau.
Note: These minutes are compiled in the modified verbatim style. Bracketed material indicates language used to clarify and further describe testimony. Actions of the Committee are presented in the traditional legislative style.
SUBCOMMITTEE MEMBERS PRESENT:
Mr. William Horne, Chairman
Mr. Bernie Anderson
Mr. Rod Sherer
STAFF MEMBERS PRESENT:
Danielle L. Christenson, Subcommittee Policy Analyst
Deborah Rengler, Committee Secretary
OTHERS PRESENT:
Myra A. Sheehan, Nevada Trial Lawyers Association
Cynthia Lu, Chief Deputy Public Defender, Washoe County Public Defender, Reno, Nevada
Mike Rasmussen, attorney and adoptive parent, Las Vegas, Nevada
W. Kathleen Baker, Nevada Trial Lawyers Association
Lucille Lusk, Cochairman, Nevada Concerned Citizens, Las Vegas, Nevada
Edward E. Cotton, Administrator, Division of Child and Family Services, Department of Human Resources, Carson City, Nevada
Angela Howald, birth mother, Reno, Nevada
Deborah Gregg, Adoption Director, Catholic Charities of Southern Nevada, Las Vegas, Nevada
Lesa Coder, foster mother and prospective adoptive parent, Las Vegas, Nevada
Tim LeMaster, prospective adoptive parent, Las Vegas, Nevada
Chairman Horne:
We will start the meeting of the Assembly Committee on Judiciary’s Subcommittee on A.B. 28.
Assembly Bill 28: Provides procedure for parties to adoption to enter into enforceable agreement for post-adoptive contact. (BDR 11-207)
Good afternoon, everyone. Just a brief overview on why we are here. As most of you know, this Subcommittee previously met on February 26 to receive further public testimony and comment on A.B. 28. Since then the Subcommittee has received a proposed amendment to this bill. If you have not seen a copy of the proposed amendment, I believe Ms. Sheehan has brought copies that are [available] on the table on the side. I encourage you to pick one up so that you can follow along. For those of you viewing this meeting in Las Vegas, a copy of the proposed amendment is being faxed down to you; it should be there soon if you have not already received it.
[Chairman Horne indicated that all members of the Subcommittee were present.]
This meeting is to address the amendments only; we are not going to rehash testimony on the pros and cons of post-adoptive contact agreements. We are only going to address the proposed amendments that Ms. Sheehan and others, Ms. Lusk, Ms. Foley, I believe, Ms. Baker, Ms. Lu, and Mr. Rasmussen down in Las Vegas, have come together with. I know that this was a contentious issue and not everybody got everything he or she wanted. Hopefully, this will be something that will be workable. I am going to start; we are going to take Ms. Sheehan out of order since she is the author of the amendment.
Myra A. Sheehan, Nevada Trial Lawyers Association:
I am going to bring up Ms. Baker and Ms. Lu because we have worked on this in a collaborative effort. [Introduced herself.] I would like to state that this was a cooperative effort by a group of people that were brought together because of this bill and the interest we had in it, pros and cons. I would like to tell you that I worked through e-mail with Cynthia Lu of the Washoe County Public Defender’s Office, Ms. Baker, who is here as an attorney and somebody who practices family law, Michael Capello from Washoe County Department of Social Services, Maire Burgess was on the e-mail list, Ed Cotton, Lucille Lusk, and Michael Rasmussen. I would like to thank every one of them because we all did work very hard to come to some kind of consensus (Exhibit C). What you have before you today is what we agreed upon as a group. There are, as you state, other thoughts and amendments or other things that people may have wanted to be put into this bill, but all that was put into the bill as far as the amendment was everything that we could agree upon. Actually, I am quite pleased with the bill.
There are a couple typos [on the amended bill] that I would like to correct and point out so that people can make those corrections on the bill:
Those are the only suggested corrections to the amended bill as it stands today. Mr. Chairman, I would like to know how you wish me to proceed. If there are any questions, we can answer them. Do you want me to go through it [the bill]? I can do that.
Chairman Horne:
Let us go one by one through the amendments.
Assemblyman Anderson:
I presume that these have been reviewed by our bill drafter so that it conforms to our bill drafting technique, rather than starting a phrase with “If,” which is not one of the more normal ways to go through it. Why the choice between a “natural” and “biological” [parent]? I am confused by that, Ms. Sheehan. Why was there a need for the word selection? Seems to me you are wordsmithing, and I am curious.
Cynthia Lu, Chief Deputy Public Defender, Washoe County Public Defender:
[Introduced herself.] When this bill first was being discussed by several people, including a person from the University of Nevada, Reno, Department of Social Work, I think the term “biological” versus “natural” was a term of art. I think the consensus from some feedback we had received was that we do not really want to call an adoptive parent “unnatural,” so they were concerned about using the term “natural parent” because they felt it might have connoted that an adoptive parent was “unnatural.” That was not a connotation that we want this bill to create. I think that is why the term “biological” was suggested to be used instead.
Assemblyman Anderson:
The reasoning, and you have already brought it out on the second page of your amendment, in the new Section 4: “This statute does not create any presumptions of public policy that open adoptions are preferred or are in the best interest of the child. Nor does this statute create an affirmative duty upon a placing agency to advise the biological parent(s) of post-adoptive contact agreements or the incorporation of the same [into the decree of adoption].” Why is there the necessity to state that? Does that not just leave us exactly where we are at, where the agency just continues to operate the way it does because it is not required to make affirmative statement that if you are going to do a post[-adoptive contact] agreement that they have an affirmative responsibility.
Myra Sheehan:
That was actually a requested amendment by Michael Rasmussen; I think he is down in Las Vegas. If Mike could come to the table, I will defer to him. But before he answers, Mr. Rasmussen made this recommendation; all of us who were on the committee created by this group reviewed it and decided that, in fact, it was not an inappropriate thing to not have an affirmative liability of the agency to create some kind of liability on their part to have to inform the biological parent of this. I do not believe that it puts us in the same place, because I do not believe it absolves any attorney from telling a client that there is this statute that says it needs to be incorporated, but I am willing to defer and let Mr. Rasmussen explain the position that he took on doing this.
Mike Rasmussen, attorney and adoptive parent:
[Introduced himself.] I simply, in reading the bill, thought that it could create an affirmative duty upon an agency to inform both, either the adoptive couple or a birth parent, about these agreements. I thought it created an inordinate amount of liability. And simply, all I did was contact the agency that I used for my own adoption and they had significant concerns. I then also contacted a person affiliated with Catholic Charities [of Southern Nevada] and they had similar concerns. I brought up the issue and it was all related to liability issues for the agencies. I wanted to restrict those and not create new duties, new burdens, [and] new liabilities upon them through this proposed amendment.
Assemblyman Anderson:
So then with this, that particular line, the whole bill becomes superfluous because then there would be no way that you would have to do this because you could just keep on going the way you are right now, and whether you did or not, you are unscathed because we have given you… you no longer even have the obligation to affirm to somebody who is going into… if you make the offer you can go in… you want an open adoption or closed and you explain that, and then they choose open, then you have no obligation to affirm to tell them what their rights are. How are these people supposed to know that? They are going to go into it thinking they have made such an agreement, and since you did not require them to put it in the contract and we are not going to hold you liable, who then becomes liable?
Chairman Horne:
Mr. Rasmussen and Ms. Sheehan, that jumped out at me when I first read it as well. What is unique about this is that with that particular second sentence here and not requiring these agencies to inform the birth parents about this provision, like Mr. Anderson said, it makes this bill, this statute, eventually useless. You have to remember that probably the majority of the parents who will be coming in seeking to give up their child for adoption are going to be without counsel in this; that bothers me. Whether the agency, if this were to pass, will have knowledge that this exists, that a parent can ask for this type of agreement, but the agency is going to withhold [information regarding this type of agreement] from the parents so they do not. It seems underhanded, particularly if there is a birth parent, maybe poor and uneducated and does not know any better, and then after the fact he/she would not have any recourse. It is one thing if you have an attorney and they say, “We can do a post-adoptive contract but we can even agree not to,” there is nothing in here that mandates that you put it into the adoption decree. I read the [Nevada] Supreme Court ruling and nothing in it says that you have to put it in the decree unless you want it to be enforced. But to withhold that information just seems wrong to me.
Mike Rasmussen:
To respond to both Chairman Horne and Mr. Anderson, I do not speak on behalf of any agency, only a significant concern on my part that they are now somehow required to, in essence, provide legal advice to a birth mother and to these adoptive couples that come through their agency. I do not think that is a burden that should be placed upon an agency. There are also other layers of representation that can come into play. I would guess that very few birth mothers are actually represented by counsel, like you stated, Chairman Horne. However, they do have right to counsel at any time and can seek that out.
If in fact they do request an agreement, the way the statute is crafted so far, it says it must be incorporated into the adoption decree unless contractually we could agree not to incorporate. There is no provision regarding that, it just says it must be incorporated. Certainly, my position is that I do not think that it should be incorporated; it should be “we may” that should be an agreement between the adoptive couple and the birth parent. But also, in addition to the layer of having the right to seek out counsel, we also have a judge who effectively at the end of the day rules on the adoption decree. And they are certainly going to be aware of this law as well. I do not think the people are wholly without representation. And I would think that most adoptive couples, myself excluded, seeing as how I can represent myself, but you know what they say about doing that, I guess I have a fool for a client! But other people, adoptive parents, when they finalized their adoptions are hiring counsel. So there are plenty of layers of protection built into the system.
W. Kathleen Baker, Nevada Trial Lawyers Association:
[Introduced herself.] I would agree with Mr. Rasmussen that the adoption agency, I do not believe, has any obligation to give legal advice to birth mothers. But if they know about the option of having a post-adoptive contact agreement, they should be provided with the ability to do that. As far as the enforcement, I do not think that this eliminates this bill. What this bill says to me as an attorney representing adoptive parents is that, “I better find out whether there is an open adoption agreement, and if there is one, then I am required by statute to have it incorporated into the decree of adoption.” So that is where it comes in, I do not believe it is going to be the judge; when I go before a court and a judge with an adoption, the court does not know if there is an adoption agreement unless I have told them in my petition. So the obligation as an attorney for the adoptive parents is to find out whether there is an adoption agreement and to make sure it gets incorporated. The liability falls on me; I am the one that is responsible for doing that, and I am representing the adoptive parents on that basis. So, should something happen and the biological parent comes back, I am the one who is going to get hammered. I think it does not nullify this statute by having this provision; I think it does say that this agency that is not a legal agency does not have any affirmative duty to say to the birth mother, “You have the right to consider an open adoption agreement or have post-adoptive contact.” And I do not know that they have that obligation. I think that the obligation is upon each of us as individuals to find out what our rights are in the legal sense.
Myra Sheehan:
As far as putting an obligation on a third party, and that is what you would be trying to do if you said that the adoption agencies had an affirmative obligation, you would be creating a liability and obligation on a third party that should not have that obligation or liability. We did talk about this as a group and we talked about it as lawyers; sometimes talking about it as lawyers you get lost in the process. I think we are very clean and safe on this bill. I do not think this nullifies this bill. I believe what it says is that you are not putting an obligation on a third party who is not a legal entity that has that obligation to inform. I agree that the obligation is going to fall really upon the adoptive parents’ attorney. If they do not do it, then they are looking at a possible suit against them for malpractice. The statute says it must be incorporated.
Chairman Horne:
We are going to call those wishing to testify again on the issue of the amendment only. I want to start off in the order that you signed in, beginning with those speaking in favor of the bill in its amended form.
Lucille Lusk, Cochairman, Nevada Concerned Citizens:
[Introduced herself.] I would like to express my appreciation also to all the individuals who worked on developing this amendment. It has gotten us almost there from my perspective; many of the issues have been addressed and compatibly resolved. What I would like to do is ask for you to consider a couple of additional amendments; these were shared with the individuals and were not agreed to by everyone, so obviously it falls to the Subcommittee’s policy decision-making to determine whether to include them or not, just as all aspects of it do, of course.
Our concern is that there is still no provision to deal with the potential for repeated vexatious filings in the court to draw the adoptive family back into court. I believe you have in front of you some proposals that Mr. Rasmussen (Exhibit D) has made that he is requesting as additional amendments. I will refer to those with the assumption that you do have them and recommend or request that you specifically consider…
If you look at A.B. 28, at the top of page 2, subsection 4, there is the ability written into this amended A.B. 28 for sanctions to be made by the judge against an adoptive family if the judge concludes that they have not honored the agreement and have acted in bad faith. What I would like to request is that you consider that those same sanctions could also be applied to the biological parents if they have brought complaints in bad faith on an equal basis. I would like to mention, these are monetary sanctions that have been put into this amendment. It should not be assumed that the adoptive family has plenty of money and the biological parent does not. These agreements cover a full 18 years and the fortunes of both shift in that period of time. So, what we are looking for is some method to assure that the adoptive family will not be drawn repeatedly into court by having the judge have the ability to review and make a determination as to whether the complaints have been brought in good faith or not.
It has been brought to my attention that there is a rule of court procedures that deals with sanctioning attorneys that bring frivolous cases, but that is not the approach that we are recommending. We are recommending that the sanctions that can be applied to one party in the case could also be applied to the other party in the case based on, of course, judicial discretion. The other item that I would like for you to consider is the question that has been brought up as to whether these post-adoptive contact agreements most appropriately belong in adoption law or whether they really should be incorporated in contract law, where they are enforced as a contract and therefore could not bring the validity of the adoption into question. I simply lay those before you as additional options to consider. Again, I express appreciation for the work that has already been done by a great number of people in resolving many of the sticky points.
Assemblyman Sherer:
What would you do for the adoptive parents, how would you change that for your amendment? Would you just take that out and just put “both parties?”
Lucille Lusk:
I would leave that to the Legislative Counsel Bureau (LCB) to wordsmith it, but yes, essentially it would simply apply the potential for sanctions based on bad faith to both parties or to either party rather than both parties.
Chairman Horne:
I have one comment and maybe Ms. Christenson can answer this. Ms. Lusk mentioned sanctions, which do exist for attorneys but not for… but if an adoptive parent is coming forth pro per, that judge could place those sanctions on that birth parent as well.
Danielle Christenson, Committee Policy Analyst:
I believe Ms. Lusk is referring to Nevada Rules of Civil Procedure 11, which is the attorney sanction provision. I would defer to Legal, which is absent today, but I believe that when… it is my understanding that a pro per litigant who represents himself in litigation, which is what pro per means, is subject to all the rules of civil litigation including the sanction rules, specifically Rule 11.
Lucille Lusk:
Again, the issue here is not someone who represents himself. It is simply the ability of the judge to determine whether either party or any party is acting in bad faith and to award sanctions against that individual, regardless of whether he or she is the biological or the adoptive parent, on an equal basis.
Chairman Horne:
It was brought to my attention that the original bill has language referring to “the prevailing party.” Do you like that language better?
Lucille Lusk:
I believe that language in the original bill is referring to awarding attorney costs and fees. This is a different subject; this is the subject of the sanctions. But, yes, it would be a prevailing party sanction.
Chairman Horne:
And just so we are not going to get into law school education… When a judge awards costs and fees to the other side, oftentimes it is because they have found that a suit that has been brought before them is frivolous. You do not have to have the word in there and we are not going to start putting sanctions, that language, into statute to direct a judge; that is that judge’s discretion. I do not believe that is our purpose here. We will be discussing that before we make our recommendations to the Committee.
Lucille Lusk:
The language in the amendment does address that with regard to sanctions.
Chairman Horne:
That is what we will be addressing, all this language in the amendment.
Edward E. Cotton, Administrator, Division of Child and Family Services (DCFS), Department of Human Resources:
[Introduced himself.] Still neutral, I will be very brief. Because last time, I believe, there was a lot of information and support of the bill, I wanted to make clear we were neutral. At the end I had to point out some problems with the bill and it was not that we were taking a negative position. I think this group did an excellent job of addressing them. I would like to, on Ms. Lusk’s point, also say that is a concern of mine. In very non-legal terms, my concern with subsection 4 is as an adoptive parent. It appears to me that you could be drawn back into court regularly and end up paying a lot of attorney fees repeatedly to come back and defend yourself every time, even if you won every time. There is nothing to say that that could not happen; that concerns me. Otherwise, I think every concern I had was addressed.
Chairman Horne:
Any questions for Mr. Cotton? [No response.] Thank you.
Angela Howald, birth mother:
[Introduced herself.] I think that the attorneys have done a great job, and Assemblyman Anderson, you asked a really great question about, I think, Section 4, which you suggest the second half brings us back to square one. I have to say as a birth mother, I tend to agree. I think that Nevada Administrative Code (NAC) covers all the different types of adoptions that are offered; that keeps things fairly legally clear. This bill A.B. 28 is specifically about post-adoptive [contact agreement] contracts. We need to be out in the open and clear about everything that birth parents are entitled to. In the [Nevada] Supreme Court case that I had, the Supreme Court states “agencies should inform natural parents of the need to incorporate the agreement into the adoption decree if their consent is conditioned upon post-adoptive contact.” Again, we are going backwards with Section 4: “nor does the statute create an affirmative duty upon the placing agency to advise the birth parents…” This bill is about advising birth parents about agreements that are going to be legal or not.
Deborah Gregg, Adoption Director, Catholic Charities of Southern Nevada:
[Introduced herself.] Although it may be difficult I will respect your request to not revisit some of the issues that were discussed at prior meetings. I do have quite a lot of concerns about this bill in general. One woman mentioned the idea of putting this into contract law as opposed to family law, and I would very much be in favor of that.
One of the concerns that I would have in response to Section 4 is, speaking to whether the agency has an obligation to inform a birth parent of this post-adoptive [contact agreement] contract, it is difficult for me to hear discussion where the presumption is that the agency will act unethically; my agency does not. I am sorry if there are agencies or individuals that do that. However, my concern with putting into law the obligation of an agency to inform a birth parent of this contract is the loophole that it potentially leaves in the relinquishment if a birth parent is not advised in the proper manner, which is not spelled out in this legislation, if they are not advised to somebody’s vision of what that should be as an appropriate advisement, then we have left a loophole for a birth parent to say, “I was not fully informed, therefore I was met with fraud and should overturn the relinquishment.” That concerns me greatly.
I also see as [the director of] an agency the liability financially, among other things, where if a birth parent is not informed to the specification that I mentioned the agency could be financially liable in some way. Where the bill does not lay out exactly what needs to be told, there is no committee printing a brochure, there is no specified wording to advise birth parents of this contract, there is no provision for each agency to do this in a consistent manner, which is also a concern.
The other issue that I would raise for the moment is, what about the child? As the child grows… and let me step aside for one second and say that Catholic Charities in Las Vegas deals almost exclusively with infant adoption. We do not deal with older child adoption, so I am speaking from that perspective. As the child grows into an age where they understand circumstances and so forth, what if that child chooses himself to not want to participate in visitation with birth parents? Then what option is there for that child’s rights to be affirmed? According to this bill, we have the judge in the court able to enforce this law for the child’s lifetime.
Chairman Horne:
As Ms. Lusk mentioned before regarding these types of agreements being heard under contract law, I think basically we are talking about adoption, family court, and they are accustomed to dealing with these types of matters. To thrust them into district court, where they are not [accustomed to dealing with these matters], I do not think would be a wise or prudent move to do that. I think it needs to stay in the court that has jurisdiction over such matters. As for the issue on children wishing to basically at some point in time opt out of these agreements, I believe there may be some jurisdictions that address that very thing when a child reaches an appropriate age, not as a determinative factor, but the judge takes it into account and I think we can consider that. Ms. Christenson, are there jurisdictions that take a child’s request into account?
Danielle Christenson:
Of the 18 states that I am aware of that have open adoption contact agreement enforcement statutes, I do believe that at least two of them have provisions specifically stating that the wishes of a child at least 12 years old concerning the continuation, modification, or enforcement of such an agreement will be considered by a court. Again, it is not determinative, but they will be considered.
Chairman Horne:
Lesa Coder, do you have something new to add?
Lesa Coder, foster mother and prospective adoptive mother:
Actually, anything that I would say today would likely be new. This is my first opportunity to testify on the piece of legislation. Perhaps I can bring a different perspective. I was not aware of the amendments until I read them just a few minutes ago; if I could read my statement (Exhibit E) and comment, I would hope that it would certainly shed some light on the proceedings.
Chairman Horne:
While I appreciate that, I am really trying to keep this to just addressing these amendments and not so much addressing our pros or cons for post-adoptive [contact] agreements. You have had an opportunity to look at the amendments; is there anything in there that you particularly are opposed to?
Lesa Coder:
I have reviewed the amendments, and with all due respect to the petitioner of the legislation, I think that if we are only considering post-adoptive contact and contracts for infants, then we are not looking at a much more holistic picture, and I would say that as a foster parent at this point in time and a prospective adoptive parent through DCFS. I would be brief in my statement, but I would like to get my comments on the record.
Chairman Horne:
Yes, I will afford you that opportunity, if you would like to read your statement, please feel free.
Lesa Coder:
I am here today to express my concerns regarding the proposed law. I am presently a foster mother to a 2-year-old girl, Theresa. She was taken out of the home at five months and has had only one contact from her mother, a drug addict. The father is now in prison. I do intend on adopting her soon. My concerns are really as follows and not with any particular language of the bill.
First, a termination of parental rights (TPR) occurs prior to my ability to even file for adoption and is a separate process from adoption. I am told that once the TPR is complete, legally, rights would then be reenacted. Maybe that is more of a question than anything else. If I do ride this process out and parental rights are completely terminated, how can we indiscriminately or discretionarily at the time of adoption reenact those rights? This bill proposes to reenact rights long after, as in my case, a natural parent’s issues should have been stated or rectified.
Second, even if the intent of the bill is to mandate contact upon adoption, the bill, in my opinion, defiles the very character of good parenting as we have all grown to know and understand it. Why would a parent allow their child to regularly visit with someone who has no legal rights and can potentially remain anonymous? Prior to TPR, again in my case, the parents are required to work a case plan, which often allows visitation with the child and foster parents. After failure of the parent in that case to perform, the TPR process begins.
With the termination of parental rights, a parent is found to be unfit to parent the child. Many of these parents have damaged their children by sexually or mentally abusing them or abandoning them. If this bill is passed there will remain no protection for that child. Why should a child be forced to continue contact with someone who has abused or neglected them in the past? What influence will the unfit parent have on the child on how he or she thinks, his or her beliefs, and/or values? More importantly, how does the adoptive parent know why a child’s character is changing? What influences this behavior or in fact what to do about it? Who is left behind to deal with the confused, hurt, or angry child?
Terminating a birth parent’s rights is not taken lightly by the courts. A parent up until that time is given multiple chances to become a fit parent, and it does not make sense to continue contact, in my opinion. Likewise, adoptive parents should not be taken lightly either. It seems that this bill only benefits and rewards the parent’s poor behavior. If you only knew, if I could tell you the level of scrutiny I have personally gone through just to be able to foster a child, much less adopt a child, you might consider making birth parents as accountable as adoptive parents. I would think it is fair to say that the rights of the child with adoptive parents would our primary concern.
Where does this bill propose to keep our identity anonymous and confidential, if a third party is the one delivering the child? And how many people will want to adopt in the future, knowing the uncertainty their life with this child could be? If anything, perhaps this bill should turn the tide and make it easier for a child once they are old enough to make a conscious choice to locate their parents easily. My cousin, now a very successful dentist in Fort Worth, Texas, spent many years and a lot of money to find his birth parent. Why should not his bill make available to adoptive parents the locational information of the birth parents to make that contact easier? The system asks adoptive parents and foster parents alike to love a child as their own. My request to you today is to allow us to accomplish this very thing by protecting a child as we would our own.
Chairman Horne:
I want to address particularly your statement; I wanted to reassure you that this bill in no way reinstates a birth parent’s rights to the child. Once those parental rights have been terminated, it is done. Under this bill, these agreements, you will not have to worry about this [the adoption] being overturned, it is actually in the language, the adoption will not be voided.
Lesa Coder:
Would this contractual obligation then be better suited at the time of terminating parental rights and not at the time of the adoptive hearing? I believe, as I read the bill and the language, it postpones itself until the adoption and is not addressed at the time of terminating those rights, which again in my case could be a lengthy period of time at which I may or may not want to proceed with adopting.
Assemblyman Anderson:
Let me try to help to straighten this out, I do not want to muddy the waters any further than they already are. What this particular piece of legislation is aimed at is to clearly recognize the different types of adoptions that are there. Where the state has moved to terminate parental authority, that is finished and complete and that child is now a ward of the state. The biological parent no longer has control of that child, the state does.
This particular piece of legislation is designed for the biological parent who is placing their child of whom they have control into an agency asking for the state agency to supervise. The court asks the state agency to make sure that the transfer of those rights are proper. If that is an open adoption versus a closed adoption, then this is the form that must be taken and the judge, if it is an open adoption, at that time shall proceed making this agreement part of the formal adoption, thus clearing up an ambiguity in the law that was challenged in the [Nevada] Supreme Court and left open for the Legislature and suggested by at least one judge and in part concurred that we should take a look at this to clear up that ambiguity, which has been bothering both the state agencies and others for a long period of time. That is it. So if you have a foster-care child, then this does not apply to you.
The second part of your request relative to the opening and closing of the list of adoptive parents is an entirely separate issue which has a bill also aimed at that, and which is proceeding through the process on its own. And, in point of fact, there are about eight different pieces of legislation that we are currently tracking that fall into this area that all have an effect on different aspects of the law.
Lesa Coder:
If the LCB attorney concurs with that, then you would have no further objection from me. However, I believe if that is the intent, then it should be very clearly stated in this bill when and when it does not apply. Again, I am only going through this process for the first time and I do not profess to be a legal mind or have total knowledge of all the opportunities. But that would be my concern, and if it is either clearly stated in this bill or if the state’s attorney would like to tell me that, I will go away and not bother you again.
Chairman Horne:
You are no bother; this is all part of the process. Do not feel that you are being a bother. I appreciate you coming and reading your statement to state your views. Last we have Jennifer Woerner. [She preferred not to speak but provided an e-mail for the record (Exhibit F)].
Is there anyone else?
Michael Rasmussen:
There is one other individual in the room who does intend to speak and then, also, I know that I have responded to a question, but I hope that I have not waived my opportunity to bring up a few points regarding the changes. I will go last.
Tim LeMaster, prospective adoptive parent:
[Introduced himself.] I am here on an invitation from Mr. Horne; I appreciate the opportunity for you to read the two e-mails I have sent (Exhibit G). You have asked to keep the comments to just the amendments, so I am going to try to honor that and not rehash my two e-mails. I am just going to make a really short statement. I am a prospective adoptive parent. I finished class in January [2003] with 14 other couples; our agency did a tremendous job trying to encourage everybody in class to have an open adoption. And for most people that is not a concept that is easy to grab when you first start down the adoption path as a prospective parent. Our agency taught us to think with the child’s best interest in mind. That is not natural to do either, but coming out of class and after reading the books, we understand that we should be thinking about not what is best for us as parents or birth parents but what is best for the adoptive child.
I understand the Assembly bill has a lot of different sides and legal aspects and will not pretend that I understand those. But at the end of the day I would ask you, “Is this really going to be in the best child’s interests?” If fewer adoptive couples come through their training willing to enter into an open adoption because of legislation that seems risky or prohibitive, what have we really gained if the number of open adoptions in Nevada drops? With that I will close and try to honor your time and schedule. If you have any questions for me, I will be glad to take them.
Chairman Horne:
If there are no questions, we are going to take a brief recess. [Recess.]
The hearing on A.B. 28 will come back to order, sorry for the long delay.
Michael Rasmussen:
I too am appreciative of the way all the individuals worked together to come up with this proposal before you today. I commend everybody for their efforts and their ability to attempt to work together when we all had very different viewpoints. However, there are few things that I suggested that did not make it into the legislation that I would like to bring before the Subcommittee today. One of them I am actually backing down a little bit on because of some of the interaction I have had down here today with people from agencies and foster parents. One of my proposed amendments was saying that only these contracts should be made enforceable if the child is over one year of age. I made that recommendation because I believed during that one year maybe there is some bonding and regular contacts that the child understands and would expect, they could apply in that sense. But a lot of adoptions that happen in the state are just infant adoptions. These are babies; after the 72-hour period passes, they could be three days old when placed with an adoptive family.
But as I said here today, and I hear people’s testimony about foster care of older children, this law we still have to revisit even a little more to find out how it applies in all the different circumstances. How it applies to infant adoptions, how it applies to a 2- or 3-year-old, how it is going to apply to an 8-year-old, or a 12- or 13-year-old who may have their own desires they want expressed in the adoption. I would encourage the Subcommittee to keep those thoughts in mind.
Second, I still do not think that this type of post-adoption contact agreement should be required to be incorporated. We are talking about contract. Chairman Horne, you and I had this discussion last time; yes, it is voluntary to a degree. I think, depending on the situation, it could almost be un-voluntary on the adoptive family’s part. But why it is a contract is, if the parties agree on what they want to do, they should also be allowed to agree whether or not they are going to incorporate this into the adoption decree. This statute says that they must do it, but we are talking about a contract.
That kind of brings me to my third point. I really think that this should not go and leave it in the jurisdiction of family courts, because that implies somehow that maybe parental rights have not terminated, that this issue is not done when the adoptive couple finalizes their adoption. What we have is a contract, and contracts are dealt with very differently. I do not want this to be obscured and become a custody issue in any way. I want it to be a contract issue, and district court judges when looking at a contract, all they can say is, “Did somebody breach?” Yes, they know they breached. They apply the penalty and we wrote in those penalties—$50 fines up to a maximum of $1,000.
That maximum of $1,000 kind of brings me to another point. I may have been the one that suggested it, but I almost think it is a little high because most are worried about adoptive families being continually brought into court every time the birth parent thinks there has been some minor breach. If we are requiring these families to go to court all the time, that is going to be disruptive to the child. We have to maintain focus on what is in the best interest of these children that are adopted.
Finally, I just would also like to champion a little bit about what Ms. Lusk had said. When we talk about Rule 11 sanctions, just as an attorney, those apply to attorneys. If what we want to do is make sure we do not have frivolous lawsuits, I think that this must apply to the birth parent and to the adoptive parent, if either of them is doing funny stuff and getting this litigation riled up. This court should have specific direction that they can fine them as individuals, not just their attorneys or representatives.
Lastly, I just want to leave you with a couple of hypothetical [situations] to think about. The first would be, “Are these agreements really voluntary?” I speak as an adoptive parent here, and if you bring this child in front of me and I really want to adopt the child, then you say, “This child comes with a post-adoptive contact agreement.” I might not want it, but I certainly would love to be a parent. I take that agreement and I sign it, just so that I can have the opportunity to be a parent. I think there is a word for those types of contracts; they are contracts of adhesion. I do not have any bargaining power.
But that brings me to my second hypothetical [situation], just for you to think about, and I think this applies more to the state which has so many children that they are looking for good homes for. If you have two children, one that has one of these contracts attached to him, and the other child does not, I think it makes it very tough for the child with the contract attached to them to have these families willingly say, “I choose evenly.” I think it makes it harder for children to be adopted, not easier. That is what the Legislature should be concerned about, finding good homes for these children. This legislation and even the amendments we worked into it I do not think made it better for the children. If you have any questions, I would be happy to discuss them with you.
Chairman Horne:
Thank you, Mr. Rasmussen, and thank you for your patience today and all your help also in helping draft these amendments. You and I could go round and round on your comments and your take on the bill. We will save that for our little mini work session. Are there any questions of Mr. Rasmussen? Is there anyone else here who wishes to speak who has not had an opportunity to [speak], either here or in Las Vegas? [No response.]
Michael Rasmussen:
I have a question. Mr. Anderson alluded to eight other pieces of legislation. I certainly track everything that goes through, and I do not see anything in bill draft form to date. Is there a way that I could be made aware of those proposed legislations to see what else is out there, and how they might affect this legislation, and how they may work together or separately?
Assemblyman Anderson:
There are several Senate bills that are in the process that will have an impact. One of them in particular comes from the Uniform Code from the Uniform Commission, which has some dramatic effects and reaches up next to this issue. There is another one that is a bill draft request that I have yet to see that the Assembly Committee on Judiciary has requested. So there is a potential that this is the third or fourth bill that we have already looked at that deals in this area over on our side [Assembly]. A couple of them are not moving along; one particularly deals with [inaudible]. You can find them on the legislative Web site if you put in the correct keywords. That is the way I would suggest that you go about finding them.
Chairman Horne:
At this time, a poll of the Subcommittee members [shows they] are ready to move on this bill. Mr. Sherer, yes? Mr. Anderson, yes? At this time, close the hearing on A.B. 28, closing testimony on A.B. 28. The Chairman will entertain a motion.
I would recommend to the [full Assembly] Committee [on Judiciary] that we would amend and do pass [A.B. 28]. Amend Section 2, paragraph 2, some language addressing when children reach the age of 12.
Danielle Christenson:
I believe the language you are proposing, the child’s preference language, should be included in the portion of the bill and its amendments that speaks to modification, which is on page 2 of the bill, specifically Section 3. You will see that the bill as amended has two subparts or two paragraphs. We can include a third paragraph to include language that would mirror the language of the custody and visitation chapter of the Nevada Revised Statutes that recognizes the ability of a child to express a preference to the court if that child is found to be of sufficient age.
Assemblyman Anderson:
Let me read that language into the record for you. If I copy correctly the sections of NRS 125C.050(6)(f) “The reasonable preference of the child, if the child has a preference, and if the child is determined to be of sufficient maturity to express a preference,” is the line reference that we might put in at line 10 as a new subsection (e) then of Section 2 of the original bill…
Danielle Christenson:
It can certainly appear in both places. I was suggesting it appear under Section 3, which is on page 2, as a new paragraph 3. Section 3 on page 2 speaks to modification of a post-adoptive contact agreement.
Assemblyman Anderson:
I understand we are talking about lines 33 and 34, a new [paragraph] 3. I stand corrected. Is it your intention, Mr. Chairman, to adopt the amendments suggested by, that have been agreed to by the parties, to adopt their language at their suggestion, if an adoptive parent or parents to choose to enter into a post-adoptive contact agreement and then the biological parents and the other language suggestions?
Chairman Horne:
Yes, that is correct. Section 2, paragraph 4, was suggested by Ms. Sheehan on striking “by the biological parents.” Then you are referring to sanctions being applied to both parties or the prevailing parties.
Danielle Christenson:
Actually, Mr. Anderson is speaking of the very first sentence of the bill and proposed amendment.
Assemblyman Anderson:
I was going to suggest we adopt the amendment that was suggested in its entirety from the working group that had put together with their substantive changes that they talked about… from “an” to “a”; to strike in subsection 4 “by the biological parents”; and then at the end of Section 4, “the decree of adoption” rather than “decree of divorce.” I was going to suggest that we make those language [changes], that being the work of the Committee along with a possible change to reflect the NAC in another area, which Ms. Christenson may recall where we want to put that.
Danielle Christenson:
That language should appear in Section 2 and if it is the intention of the Subcommittee to have the language mirror in truth the provision of the NAC 127.20, subsection 4(c), the beginning of the sentence language should return as it was written in the original bill rather than starting with the word “if” as proposed in the amendment. So the provision should read, “the biological parent(s) and prospective adoptive parent(s) of a child to be adopted either in or through an open adoption arrangement may enter into an enforceable agreement that provides for post-adoptive contact between…” and carry on the language.
Assemblyman Anderson:
Would not the bill drafter try to conform the whole thing to our [LCB] language?
Danielle Christenson:
That is my understanding, Mr. Anderson.
Chairman Horne:
Did we get all the amendments we had been addressing?
Assemblyman Anderson:
I have been assured that, while I remain concerned, the language I would like to see removed [in Section 4] “nor does the statute create an affirmative duty upon a placing agency…” it has been indicated to me by several of the adoption agencies that it creates no unreasonable harm, although I remain somewhat concerned about it, but I would suggest that we should possibly move forward with our recommendation to adopt the amendments as presented. Otherwise, not.
Chairman Horne:
I recommend to the full Committee to Amend and Do Pass as stated. I have a second from Mr. Sherer. All those in favor? [All responded, “Aye.”] It is unanimous; the bill is passed. We will recommend A.B. 28 with the proposed amendments to the Assembly Committee on Judiciary as a whole. I will prepare the report to the Committee. If there is no more discussion, hearing on A.B. 28 is adjourned [at 5:24 p.m.]
RESPECTFULLY SUBMITTED:
Deborah Rengler
Committee Secretary
APPROVED BY:
Assemblyman William Horne, Chairman
DATE: