BILL ANALYSIS
AB 1048
Page 1
Date of Hearing: April 14, 2009
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1048 (Torrico) - As Amended: March 31, 2009
SUMMARY : Expands the "Safe-Surrender Law" to allow a parent or
other person with the lawful custody of a child 30 days old or
younger to be surrendered to safe-surrender sites, as specified.
Specifically, this bill :
1)Defines "safe-surrender" site as:
a) A location designated by the board of supervisors of a
county or by a local fire agency, upon the approval of the
appropriate local governing body of the agency, to be
responsible for accepting physical custody of a minor child
who is 30 days old or younger from a parent or individual
who has lawful custody of the child and who surrenders the
child pursuant to existing law. Before designating a
location as a safe-surrender, the designatory entity shall
consult with the governing body of a city if the site is
within the city limits, and with representatives of a fire
department and a child welfare agency that may provide
services to a child who is surrendered at the site if that
location is selected.
b) A location within a public or private hospital
designated by that hospital to be responsible for accepting
physical custody of a minor child who is 30 days old or
younger from a parent or individual who has lawful custody
of the child and who surrenders the child pursuant to
existing law.
2)Defines "parent" as a birth parent of a minor child who is 30
days old or younger.
3)Defines "personnel" as including a person who is an officer or
employee of a safe-surrender site or who has staff privileges
at the site.
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4)Mandates that a hospital and a safe-surrender site designated
by the county board of supervisors or by a local fire agency,
upon the approval of the appropriate local governing body of
the agency, shall post a sign utilizing a statewide logo
adopted by the State Department of Social Services (DSS) that
notifies the public of the location where a minor child 30
days old or younger may be safely surrendered pursuant to this
section.
5)Provides that personnel on duty at a safe-surrender site shall
accept physical custody of a minor child 30 days old or
younger pursuant to this section if a parent or other
individual having lawful custody of the child voluntarily
surrenders physical custody of the child to personnel who are
on duty at the safe-surrender site.
6)Requires a safe-surrender site, or the personnel of a
safe-surrender site, shall not have liability of any kind for
a surrendered child prior to taking actual physical custody of
the child. A safe-surrender site, or personnel of the
safe-surrender site, that accepts custody of a surrendered
child pursuant to this section shall not be subject to civil,
criminal, or administrative liability for accepting the child
and caring for the child in the good-faith belief that action
is required or authorized by this section, including, but not
limited to, instances where the child is older than 30 days or
the parent or individual surrendering the child did not have
lawful physical custody of the child. A safe-surrender site,
or the personnel of a safe-surrender site, shall not be
subject to civil, criminal, or administrative liability for a
surrendered child prior to the time that the site or its
personnel know, or should know, that the child has been
surrendered. This subdivision does not confer immunity from
liability for personal injury or wrongful death, including,
but not limited to, injury resulting from medical malpractice.
7)Provides that in order to encourage assistance to persons who
voluntarily surrender physical custody of a child pursuant to
existing law, no person who, without compensation and in good
faith, provides assistance for the purpose of effecting the
safe surrender of a minor child 30 days old or younger shall
be civilly liable for injury to or death of the minor child as
a of his or her acts or omissions. This immunity does not
apply to an act or omission constituting gross negligence,
recklessness, or willful misconduct.
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8)Defines "lawful custody" as physical custody of a minor 30
days old or younger accepted by a person from a parent of the
minor, who the person believes in good faith is the parent of
the minor, with the specific intent and promise of effecting
the safe surrender of the minor.
9)Requires that on or before July 1, 2010, the Department of
Juvenile Justice shall convene a workgroup consisting of
stakeholders, including representatives from DSS, the State
Department of Education, and any other members deemed
appropriate by DSS, to disseminate updated instructions to
counties that address the following issues:
a) Clarification of rules with respect to a mother who
gives birth in a hospital and chooses to give up her baby.
b) Clarification of the definition of a safely surrendered
baby, including whether the baby was lawfully surrendered
in accordance with this section.
c) Clarification of parental information provided to
counties, and the use of information received by the
counties.
10)States that the workgroup shall identify the appropriate
agencies that shall adopt the rules and regulations the
workgroup deems necessary for the purposes described above.
The responsibilities of the workgroup pursuant to this
subdivision shall include, but not be limited to, identifying
agencies that are responsible for ongoing research and
monitoring effects.
11)Provides that the activities required by this section shall
be funded by available moneys from the State Children's Trust
Fund and from the California Children and Families Trust Fund.
DSS shall apply to the California Children and Families
Commission for funding. General Fund moneys shall not be used
to fund this section. DSS may also accept and expend private
donations that are received by DSS for the purposes of this
section.
12)States that no parent or other individual having lawful
custody of a minor 30 days old or younger may be prosecuted
under existing law if he or she voluntarily surrenders
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physical custody of the child to personnel on duty at a
safe-surrender site.
EXISTING LAW :
1)Makes it a crime for a parent willfully to fail, without
lawful excuse, to provide a child with necessary food,
clothing, shelter, medical assistance or other remedial care.
(Penal Code Section 270.)
2)Provides that every parent of any child under the age of 14
years, and every person to whom any such child has been
confided for nurture, or education, who deserts such child in
any place whatever with intent to abandon it, is punishable by
imprisonment in the state prison or in the county jail not
exceeding one year or by fine not exceeding $1,000 or by both.
(Penal Code Section 271.)
3)States that every person who knowingly and willfully abandons,
or who, having ability so to do, fails or refuses to maintain
his or her minor child under the age of 14 years, or who
falsely, knowing the same to be false, represents to any
manager, officer or agent of any orphan asylum or charitable
institution for the care of orphans, that any child for whose
admission into such asylum or institution application has been
made is an orphan, is punishable by imprisonment in the state
prison, or in the county jail not exceeding one year, or by
fine not exceeding $1,000, or by both. (Penal Code Section
721a.)
4)Provides that every parent who refuses, without lawful excuse,
to accept his or her minor child into the parent's home, or,
failing to do so, to provide alternative shelter, upon being
requested to do so by a child protective agency and after
being informed of the duty imposed by this statute to do so,
is guilty of a misdemeanor, as specified. (Penal Code Section
270.5.)
5)Describes the procedure for the surrender of a child 72 hours
or younger to a safe-surrender site without incurring any
criminal liability under the state's child abandonment laws.
(Health and Safety Code Section 1255.7.)
6)Defines a "safe-surrender site" as either:
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a) A location designated by the board of supervisors of a
county to be responsible for accepting physical custody of
minor who is 72 hours old or younger [Health and Safety
Code 1255.7(a)(1)(A)]; or,
b) A location within a public or private hospital
designated by the hospital as responsible for accepting a
minor child who is 72 hours old or younger. [Health and
Safety Code 155.7(a)(1)(B).]
7)Defines a "parent" as a birth parent of a minor child who is
72 hours old or younger. [Health and Safety Code
155.7(a)(2).]
8)Protects from prosecution under California's child abandonment
laws a parent or other person having lawful custody of a child
72 hours old or younger who voluntarily surrenders physical
custody of the child to personnel on duty at a safe-surrender
site. (Penal Code Section 271.5.)
9)Provides that a child is within the jurisdiction of the
juvenile court if:
a) The child has been left without any provision for
support;
b) The child has been safely surrendered and the child was
not been reclaimed within the 14-day period, as specified;
c) The child's parent has been incarcerated or
institutionalized and cannot arrange for the care of the
child; or,
d) 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. [Welfare and Institutions
Code Section 300(g).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Recently, 22
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states have time provisions that give a parent a month or
longer to safely surrender their baby. North Dakota and
Missouri have safe surrender laws that give parents up to a
year.
"A survey of these states elicited two primary rationales for
the extended period. The first was a general desire to
provide sufficient time for a parent to take a responsible
course of action.
"The second was the correlation between the onset of postpartum
depression and infanticide or abuse. In our neighboring
state, Nevada, Assemblywoman Barbara Cegavske responded that
they were trying to leave enough time and space in between
when a mother abandoned her baby and went through any
postpartum depression episodes that might be experienced.
"According to the Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition, postpartum depression is defined as
episodes of depression beginning within 4 weeks of giving
birth. Cases in which postpartum depression poses the
greatest danger to the child is when the mother is suffering
from postpartum psychotic depression. Postpartum psychotic
depression can occur within 3 weeks of birth and often goes
unnoticed as the women that suffer from postpartum depression
may appear well.
"In California specifically, there are three major obstacles for
mothers seeking to surrender their baby:
a) "Health: Even without the onset of postpartum
depression, the strenuous act of giving birth itself takes
a toll on a woman's mind and body, impairing judgment and
depleting physical strength. Additionally, many women who
end up abandoning their children are often in denial of
their pregnancy and those around her are even unaware of
her pregnancy. Without prenatal care or medical assistance
during birth, several complications may arise that inflict
serious trauma, including maternal hemorrhaging. These
types of complications could take days or weeks to recover,
which could cause her to miss the opportunity to safely
surrender her baby.
b) "Geographic: California is geographically diverse. A
significant number of California's counties are composed of
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rural and remote areas with limited transportation options,
making quick travel difficult. This problem is exacerbated
when fire stations cannot be designated as safe surrender
sites because they are not staffed 24 hours. In Alpine and
Sierra counties, the situation is even worse. Those
counties do not have ANY safe surrender sites because they
do not have any hospitals or any viable designated
surrender sites in their counties.
c) "Outreach: The existing law does not require any
governmental entity to administer and enforce the law, much
less establish an awareness campaign. There are varying
levels of understanding from county to county and even
county to state. This lack of clear comprehension of the
law inevitably poses major problems for those seeking to
obtain the information and those that are providing the
information.
"While collecting information on safe surrender sites in the
58 counties, my staff quickly found that there was no
comprehensive list of safe surrender sites at the state level.
At the county level, only about 10 counties had a partial or
complete list on hand and a majority of the others were
unclear about the law. The challenges faced in gathering this
information at the governmental level, only calls into
question the law's effectiveness, notwithstanding language
barriers.
"In California, there are over 6 million limited English
proficient residents and currently, informational pamphlets
have only been available in English and Spanish. Without
access to information for the nearest safe surrender sites and
confusion among county experts, it appears unreasonable to
expect a desperate mother to safely surrender within the 72
hour window.
"Most of the babies this law seeks to save are born to mothers
with extenuating circumstances and to whom normal and
reasonable standards do not apply."
2)Background : According to background supplied by the author,
" Babies older than 72-hours are continuing to be abandoned :
Advocates of the current time provision cite the number of
abandoned babies provided by the Department of Social Services
(DSS) as a measure of the law's adequacy. The 175 abandoned
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babies DSS reported is, first, misleading and second, still an
astoundingly significant number of lives that could have been
saved by changes to the current law. In 2008, the State
Auditor found that 404 babies had actually been abandoned
since the inception of the law and the figure DSS had reported
was based on abandoned babies younger than seven days.
Additionally, the audit also found that in a sampling of the
404 abandoned babies, over 25% of the babies had been over
three days old. (Bureau of State Audits. Safely Surrendered
Baby Law. April 2008 Report 2007-124, pg. 10, 59.)
"Shortly after the release of the audit, at least two babies
were also abandoned. One of these babies was a 9-day-old baby
abandoned on the track of a Vacaville school. The mother left
her baby within a half-mile of a fire station and a hospital,
both of which were designated as safe surrender sites. The
baby was 6 days too old to be safely surrendered and the
mother had clearly been suffering from a psychotic break.
During the mother's preliminary hearing, she stated that the
voices in her head had been telling her that her baby was a
'demon'."
3)Governor's Veto Message on AB 2262 (Torrico) : AB 2262
(Torrico), of the 2007-08 Legislative Session, is essentially
the same as this bill and was vetoed. In his veto message,
the Governor stated, "I have vetoed similar measures twice
before and there is no new data or information to support a
change in my position. California's Safe Surrender Law is
carefully crafted to provide an emergency alternative to a
woman in crisis while also reserving the fundamental rights of
a child."
4)Legislative Intent behind the Safe-Surrender Law : The
Safe-Surrender Law was enacted because Penal Code provisions
regarding abandonment and neglect of children often discourage
women, who are likely to be young, unmarried, and not ready to
face the responsibilities of parenthood, from seeking help
immediately after their babies are born, either for themselves
or for the babies. The law sought to remedy this situation
for a new mother or any person who finds himself or herself
with custody of a newborn baby and who wants to remain
anonymous by providing immunity from prosecution if he or she
surrenders custody of the newborn baby in a hospital emergency
room or other county-designated facility. The Safe-Surrender
Law was implemented to target those in severe crisis which
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places newborn babies at imminent risk of harm. It is
questionable whether extending the surrender period from 72
hours to 30 days serves the original legislative intent of
this law.
5)Existing Research on the Current Surrender Period : The
Emergency Pediatric Care Journal reported in 2003 that
"newborns are at the greatest risk of homicide during the
first day of life; this time-frame constitutes 83% of all
infants killed." Supporting this data, a 2002 Centers for
Disease Control study conducted on infant death data from 1989
to 1998 also found that infants are at the greatest risk for
homicide during the first week of infancy and the first day of
life. In addition thereto, the study established that the
homicide rate on the first day of life was more than 10 times
greater than the rate during any other time of life.
6)Negating the Anonymity Provisions in the Safe Surrender Baby
(SSB) Law : The overarching policy of anonymity for women who
surrender their babies under the current law would be
compromised by the time a child is more than a few days old.
It is unrealistic to believe that a woman could, or would,
give birth to a child, hide its existence for 30 days, and
only then decide to surrender the baby. Statistics support
this: 95% of babies killed during the first week of life are
not born in hospitals, while only 8% of babies killed later in
life are born outside hospitals.
In addition thereto, under the current surrender law, the person
dropping off the infant is not required to disclose his or her
identity or disclose any medical information. The person is
also given immunity from criminal prosecution for child
abandonment. While this extreme remedy is justified during
the brief window of 72 hours when most homicides occur [the
first 24 hours of life], an expansion of the period to 30 days
is ill-advised for the following reasons.
a) If it is later discovered that the child has been
physically or sexually abused, it will be difficult, if not
impossible, to track the anonymous person who delivered the
child to the safe surrender location. The longer the
period of so-called "safe surrender," the greater the risk
that this remedy will be misused by some to escape
responsibility for child abuse. Unfortunately, these same
individuals are likely to abuse other children.
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b) There will be an increasing number of children in foster
care or adoption that will lack a medical history. This
could be detrimental, even fatal, in future years.
c) Fathers and other family members, who may otherwise have
been willing to care for the child, will have no way of
knowing that the child has been "safely surrendered." The
child will then lose the opportunity to be reared by his or
her parent or family member.
d) The "safely surrendered child" will become a ward of the
state with no known parent to pay child support as not all
children will be adopted.
Again, the original intent of the SSB law was "to provide
young, inexperienced, and perhaps unstable women who may feel
they have no options when they have an unwanted baby, with a
safe place for the baby as soon as it is born and thus give
them a little time to sort out their lives and decide whether
they want to take responsibility for the baby." [Senate
Judiciary Analysis of SB 1368 (Brulte), Chapter 824, Statutes
of 2000.] In fact, the real incentive for this new mother,
who is probably in a state of shock, is that she is immune
from criminal prosecution for abandoning the child. The SSB
law absolves her of the responsibility for the child - if she
delivers it to a safe place within a very short period of
time. The SSB law today even gives the birth mother up to 14
days to change her mind and retrieve her baby, after the shock
and trauma of having an unwanted baby has settled somewhat.
The SSB law was not intended to allow her (or the other
parent) to have the baby, keep the baby for 30 days, and then
surrender the baby at a safe surrender site expecting no
questions and receive immunity from prosecution for
abandonment. By the 30th day, the 4th day, or any day in
between, the birth mother has the opportunity to surrender the
baby to the proper authorities for purposes of adoption.
7)Alternatives to Abandonment After 72 Hours : For children who
are older than a few days, the existing voluntary
relinquishment process enables parents to voluntarily free
their children for adoption. Voluntary relinquishment offers
safeguards to birth parents, the child and the adoptive
parents. Further, according to the County Welfare Directors
Association of California (CWDA), voluntary placement rules
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allow a parent to place a child in foster care for up to six
months. These two paths, CWDA says, offer both short- and
long-term options for parents who are overwhelmed or are
suffering from post-partum depression. These options, which
are easily accessed at the local level, would also allow for
the collection of important medical history information,
provide full disclosure and due process for both the mother
and father of the baby, and allow for potential future contact
between the baby and the birth family, according to the group.
8)Argument in Support : According to the California Professional
Firefighters , "This bill increases - from 72 hours or younger
to up to 30 days old - the age at which a parent or other
person with lawful custody of a child may surrender that child
at a 'safe surrender site.' AB 1048 further permits a local
fire agency, upon the approval of its appropriate local
governing body, to designate a safe-surrender site."
9)Prior Legislation :
a) AB 81 (Torrico), of the 2006-07 Legislative Session,
would have expanded the Safe-Surrender Law to seven days
and was vetoed. In his veto message, the Governor stated,
"California's Safe Surrender Law already provides an
emergency alternative for a woman in crisis who may
otherwise abandon, abuse, or kill her baby. California's
law was carefully crafted to balance the creation of a safe
surrender option while preserving the rights of children.
The current 72-hour period contained in law allows for a
no-questions-asked safe surrender of a newborn, and is
supported by research and statistics which indicate that
most neonaticide occurs within the first day. Experts have
raised concerns that instead of improving child safety,
increasing the time that a baby may be surrendered from 72
hours will put newborns in greater risk by keeping them in
an unsafe environment without proper care and supervision."
b) AB 1873 (Torrico), of the 2005-06 Legislative Session,
would have expanded the Safe-Surrender Law to 30 days and
was vetoed. In his veto message, the Governor stated,
"California's Safe Surrender Law provides an emergency
alternative for a woman in crisis who, statistics show, may
otherwise abandon, abuse, or kill her baby. The current
72-hour period contained in California statutes allows for
a no questions asked safe surrender of a newborn and is
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supported by research and statistics that indicate that
most neonaticide occurs within the first day. Some experts
have raised concerns about this bill, which I share, that
instead of improving child safety, increasing the time that
a baby may be surrendered from 72-hours to 30-days, will
have the opposite effect, putting newborns in greater risk
by keeping them in an unsafe environment without proper
care and supervision."
c) SB 116 (Dutton), Chapter 625, Statutes of 2005, deleted
the sunset date of January 1, 2006 from the Safe-Surrender
Law.
d) SB 139 (Brulte), Chapter 150, Statutes 2003, provides
that a child may be surrendered at any hospital or other
designated safe-surrender site. Previously, a designated
employee at a hospital emergency room or other location was
the only person permitted to accept a baby. In addition,
SB 139 provides for confidentiality of personal identifying
information of the person surrendering the baby and
requires all safe-surrender sites to post a sign
incorporating the statewide logo that has been adopted by
the DSS that notifies the public of the location where a
child can be safely surrendered.
e) AB 2817 (Maddox), Chapter 1099, Statutes 2002, requires
school districts to include information regarding the
Safe-Surrender Law in sex education classes.
f) SB 1368 (Brulte), Chapter 824, Statutes of 2000, enacted
the provisions governing the surrender of a newborn by a
parent or other responsible person to a safe-surrender site
where the abandoned newborn may receive medical and other
care until the county takes over custody of the newborn.
SB 1368 was introduced to provide mothers of unwanted
newborns a safe alternative to abandonment of children in
trash bins, alleys, or other places where the babies would
be unprotected and could die. In order to reduce the
number of abandoned babies and give those babies the chance
to survive, SB 1368 provided a safe place (such as an
emergency room of a hospital) where a person may surrender
the baby and may retrieve the baby within a specified
period. Additionally, immunity from criminal penalties
under the child abandonment laws is granted to the parent
and/or person who delivered the baby to the safe-surrender
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site. SB 1368 contained a sunset date of January 1, 2006.
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Obstetricians
and Gynecologists
California Attorneys for Criminal Justice
California Catholic Conference
California Medical Association
California Professional Firefighters
California Psychiatric Association
League of California Cities
Opposition
California State Association of Counties
County Welfare Directors Association of California
Supervisor, Fourth District, County
of Los Angeles
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744