BILL NUMBER: AB 2943 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 3, 2008
INTRODUCED BY Assembly Member Lieber
FEBRUARY 22, 2008
An act to amend Section 300 of the Welfare and
Institutions Code, relating to dependent children. An
act to amend Section 273a of the Penal Code, relating to corporal
punishment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2943, as amended, Lieber. Dependent children.
Corporal punishment.
Existing law makes it a crime for any person, under specified
circumstances, to willfully cause or permit a child to suffer, or to
inflict on a child unjustifiable physical pain or mental suffering.
This bill would authorize the finder of fact to consider the use
of an implement, the throwing, kicking, burning, or cutting of a
child, the striking of a child with a closed fist, the striking of a
child under 3 years of age on the face or head, the vigorous shaking
of a child under 3 years of age, the interference with a child's
breathing, or the brandishing of a deadly weapon upon a child when
determining whether or not a defendant willfully caused any child to
suffer, or inflicted unjustifiable physical pain or mental suffering
on a child. Proof of the listed conduct would not be, by itself,
enough to prove guilt and the weight and significance of the conduct
is for the finder of fact to decide. This bill would also authorize
the court to order a person convicted of this offense into a
nonviolent parental education class as a condition of probation, if
appropriate.
By changing the definition and punishment for a crime, the bill
would impose a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is
required by this act for a specified reason.
Existing law provides that a child who has been abused or
neglected, as described, is within the jurisdiction of the juvenile
court and may be adjudged a dependent child of the juvenile court.
Existing law states the intent of the Legislature that nothing in
this provision disrupts the family unnecessarily or intrudes
inappropriately into family life, prohibits the use of reasonable
methods of parental discipline, or prescribes a particular method of
parenting.
This bill would further state the intent of the Legislature in
enacting this provision to provide maximum protection for children
who are currently being physically, sexually, or emotionally abused,
being neglected, or being exploited, and to protect children who are
at risk of that harm. The bill would state that this protection
includes provision of a full array of social and health services to
help the child and family and to prevent reabuse of children, and
that the protection shall focus on the preservation of the family
whenever possible.
The bill would correct an erroneous cross-reference and make other
technical, nonsubstantive changes.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 273a of the Penal
Code is amended to read:
273a. (a) The Legislature hereby finds and declares that
child abuse is a major social problem and that children in the age
group of birth to three years of age suffer the highest rate of
victimization. Child fatalities are the most tragic consequence of
maltreatment, and the vast majority of children killed are younger
than four years of age. Fatal abuse is too often the result of
hitting or shaking by caregivers under the guise of discipline.
Infants and toddlers are the most vulnerable because of their tender
age and inability to defend themselves or ask for help. It is
therefore wholly reasonable that the integrity and sanctity of their
bodies should be afforded the greatest protection possible under the
law.
(a)
(b) Any person who, under circumstances or conditions
likely to produce great bodily harm or death, willfully causes or
permits any child to suffer, or inflicts thereon unjustifiable
physical pain or mental suffering, or having the care or custody of
any child, willfully causes or permits the person or health of that
child to be injured, or willfully causes or permits that child to be
placed in a situation where his or her person or health is
endangered, shall be punished by imprisonment in a county jail not
exceeding one year, or in the state prison for two, four, or six
years.
(b)
(c) Any person who, under circumstances or conditions
other than those likely to produce great bodily harm or death,
willfully causes or permits any child to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any child, willfully causes or permits the person or
health of that child to be injured, or willfully causes or permits
that child to be placed in a situation where his or her person or
health may be endangered, is guilty of a misdemeanor.
(d) (1) Subject to paragraph (2), in a prosecution for the
violation of this section and when determining whether or not a
defendant willfully caused any child to suffer, or inflicted
unjustifiable physical pain or mental suffering, the finder of fact
may consider any of the following:
(A) The use of an implement, including, but not limited to, a
stick, a rod, a switch, an electrical cord, an extension cord, a
belt, a broom, or a shoe.
(B) Throwing, kicking, burning, or cutting a child.
(C) Striking a child with a closed fist.
(D) Striking a child under three years of age on the face or head.
(E) Vigorous shaking of a child under three years of age.
(F) Interference with a child's breathing.
(G) Brandishing a deadly weapon upon a child.
(2) Proof of the conduct listed in subparagraphs (A) through (G),
inclusive, is not sufficient, by itself, to prove guilt, and its
weight and significance, if any, is for the finder of fact to decide.
(c)
(e) If a person is convicted of violating this section
and probation is granted, the court shall require the following
minimum conditions of probation:
(1) A mandatory minimum period of probation of 48 months.
(2) A criminal court protective order protecting the victim from
further acts of violence or threats, and, if appropriate, residence
exclusion or stay-away conditions.
(3) (A) Successful completion of either a nonviolent parental
education class approved by the probation department or no
less than one year of a child abuser's treatment counseling program
approved by the probation department. The court shall determine
whether the parenting class or the treatment counseling program is
most appropriate under the circumstances of each particular case and
order the defendant to complete the one which is the most
appropriate. The defendant shall be ordered to begin
participation in either the class or the
program immediately upon the grant of probation. The counseling
program shall meet the criteria specified in Section 273.1. The
defendant shall produce documentation of program enrollment to the
court within 30 days of enrollment, along with quarterly progress
reports.
(B) The terms of probation for offenders shall not be lifted until
all reasonable fees due to the counseling program have been paid in
full, but in no case shall probation be extended beyond the term
provided in subdivision (a) of Section 1203.1. If the court finds
that the defendant does not have the ability to pay the fees based on
the defendant's changed circumstances, the court may reduce or waive
the fees.
(4) If the offense was committed while the defendant was under the
influence of drugs or alcohol, the defendant shall abstain from the
use of drugs or alcohol during the period of probation and shall be
subject to random drug testing by his or her probation officer.
(5) The court may waive any of the above minimum conditions of
probation upon a finding that the condition would not be in the best
interests of justice. The court shall state on the record its reasons
for any waiver.
SEC. 2. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SECTION 1. Section 300 of the Welfare and
Institutions Code is amended to read:
300. A child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian. For
the purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian that
indicate the child is at risk of serious physical harm. For purposes
of this subdivision, "serious physical harm" does not include
reasonable and age-appropriate spanking to the buttocks if there is
no evidence of serious physical injury.
(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. A child shall not be found to be a person described
by this subdivision solely due to the lack of an emergency shelter
for the family. If it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's
willful failure to provide adequate medical treatment or specific
decision to provide spiritual treatment through prayer, the court
shall give deference to the parent's or guardian's medical treatment,
nontreatment, or spiritual treatment through prayer alone in
accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian, or who has no parent or guardian capable of
providing appropriate care. A child shall not be found to be a person
described by this subdivision if the willful failure of the parent
or guardian to provide adequate mental health treatment is based on a
sincerely held religious belief, and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under five years of age and has suffered severe
physical abuse by a parent, or by any person known by the parent, if
the parent knew or reasonably should have known that the person was
physically abusing the child. For the purposes of this subdivision,
"severe physical abuse" means any of the following: any single act of
abuse that causes physical trauma of sufficient severity that, if
left untreated, would cause permanent physical disfigurement,
permanent physical disability, or death; any single act of sexual
abuse that causes significant bleeding, deep bruising, or significant
external or internal swelling; or more than one act of physical
abuse, each of which causes bleeding, deep bruising, significant
external or internal swelling, bone fracture, or unconsciousness; or
the willful, prolonged failure to provide adequate food. A child
shall not be removed from the physical custody of his or her parent
or guardian on the basis of a finding of severe physical abuse unless
the social worker has made an allegation of severe physical abuse
pursuant to Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (g) of that section; the child's parent has been
incarcerated or institutionalized and cannot arrange for the care of
the child; or a relative or other adult custodian with whom the child
resides or has been left is unwilling or unable to provide care or
support for the child, the whereabouts of the parent are unknown, and
reasonable efforts to locate the parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty if the parent or guardian knew or reasonably
should have known that the child was in danger of being subjected to
an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial
risk to the child.
It is the intent of the Legislature in enacting this section to
provide maximum protection for children who are currently being
physically, sexually, or emotionally abused, being neglected, or
being exploited, and to protect children who are at risk of that
harm. This protection includes provision of a full array of social
and health services to help the child and family and to prevent
reabuse of children. That protection shall focus on the preservation
of the family whenever possible. Nothing in this section is intended
to disrupt the family unnecessarily or to intrude inappropriately
into family life, to prohibit the use of reasonable methods of
parental discipline, or to prescribe a particular method of
parenting. Further, nothing in this section is intended to limit the
offering of voluntary services to those families in need of
assistance but who do not come within the descriptions of this
section. To the extent that savings accrue to the state from child
welfare services funding obtained as a result of the enactment of the
act that enacted this section, those savings shall be used to
promote services that support family maintenance and family
reunification plans, such as client transportation, out-of-home
respite care, parenting training, and the provision of temporary or
emergency in-home caretakers and persons teaching and demonstrating
homemaking skills. The Legislature further declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of happy and well-adjusted children, and that a court's determination
pursuant to this section shall center upon whether a parent's
disability prevents him or her from exercising care and control. The
Legislature further declares that a child whose parent has been
adjudged a dependent child of the court pursuant to this section
shall not be considered to be at risk of abuse or neglect solely
because of the age, dependent status, or foster care status of the
parent.
As used in this section, "guardian" means the legal guardian of
the child.