BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1048|
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THIRD READING
Bill No: AB 1048
Author: Torrico (D), et al
Amended: 7/16/09 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 7/7/09
AYES: Corbett, Harman, Florez, Leno
NOES: Walters
SENATE APPROPRIATIONS COMMITTEE : 9-3, 8/17/09
AYES: Kehoe, Cox, Corbett, Hancock, Leno, Oropeza, Price,
Wolk, Yee
NOES: Denham, Runner, Walters
NO VOTE RECORDED: Wyland
ASSEMBLY FLOOR : 67-9, 6/3/09 - See last page for vote
SUBJECT : Child protection: safe surrender
SOURCE : Author
DIGEST : This bill extends the period during which a
person may safely surrender a baby at designated sites as
long as the proper procedures under the Safely Surrendered
Baby law are followed. Specifically, this bill (1) allows
the safe surrender of a baby up to 30 days old, rather than
72 hours, (2) permits a fire agency to designate a safe
surrender site, upon approval of the local governing body,
(3) immunizes a safe surrender site and its personnel from
criminal, civil, or administrative liability for a
CONTINUED
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surrendered child prior to taking actual physical custody
of the child, or prior to the time the surrender site or
its personnel knows, or should know, that the child has
been surrendered, and (4) requires the Department of Social
Services to report specified information to the
Legislature.
ANALYSIS : Existing law makes it a crime for a parent or
other person entrusted with a child younger than 14 years
of age to abandon the child (Section 271 of the Penal Code)
and to fail to provide for the child or to present the
child to an orphanage or similar institution as an orphan.
(Section 271a of the Penal Code)
Existing law makes it a crime for a parent willfully to
fail, without lawful excuse, to provide a child with
necessary food, shelter, medical assistance, or other
remedial care. (Section 270 of the Penal Code)
Existing law protects from prosecution under the state's
child abandonment laws a parent or other person having
lawful custody of a child 72 hours or younger, who
voluntarily surrenders physical custody of the child to
personnel on duty at a safe surrender site. (Section 271.5
of the Penal Code)
Existing law provides a procedure for the surrender of
newborns 72 hours or younger by a parent or other
responsible person at a hospital or a site (safe surrender
site) designated by the county, without incurring criminal
liability under the state's child abandonment laws.
(Section 1255.7 of the Health and Safety Code)
This bill allows the surrender of babies up to 30 days old
by a parent or another responsible person.
This bill requires, by January 1, 2013, the Department of
Social Services (DSS) to begin reporting to the
Legislature, on an annual basis, specified information and
statistics related to the safe surrender program.
Existing law authorizes a county to designate a site for
the surrender of a newborn up to 72 hours old under the
Safely Surrendered Baby law. (Section 1255.7(a)(1)(A) of
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the Health and Safety Code)
This bill authorizes a local fire agency, upon approval of
the appropriate local governing body, to designate a site
for the safe surrender of a newborn under the Safely
Surrendered Baby law.
Existing law provides immunity from civil, criminal, and
administrative liability to a safe surrender site or its
personnel that accepts custody of a surrendered child in
good faith belief that action is required or authorized
under the Safely Surrendered Baby law, including instances
where the child is older than 72 hours or the person
surrendering the child did not have lawful physical custody
of the surrendered child. (Section 1255.7(h) of the Health
and Safety Code)
This bill further immunizes from civil, criminal, and
administrative liability a safe surrender site or its
personnel for a surrendered child prior to taking actual
physical custody of the child and prior to the time that
the site or its personnel knows or should know that the
child has been surrendered.
Background
SB 1368 (Brulte, Chapter 824, Statutes of 2000) enacted the
Safely Surrendered Baby law, which allows 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. This legislation was introduced to provide
mothers of unwanted newborns a safe alternative to
abandonment of the child in trash bins, alleys, or other
places where the babies would be unprotected and could pass
away. The bill created safe places (such as an emergency
room of a hospital) where a person may surrender the baby
and, if they change their mind, may retrieve the baby
within a specified time. The bill also provided immunity
from criminal prosecution for violation of the child
abandonment laws to the person who safely surrendered the
newborn. A sunset date of January 1, 2006 was part of the
original bill, which was later removed by SB 116 (Dutton,
Chapter 625, Statutes of 2005), making the safe surrender
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law permanent.
Prior Legislation
AB 2262 (Torrico), 2007-08 Session, would have allowed for
the safe surrender of a baby up to seven days old, rather
than 72 hours; permitted a fire agency to designate a
safe-surrender site, upon approval of the local governing
body; and would have immunized a safe-surrender site and
its personnel from criminal, civil, or administrative
liability, as specified. The bill would have directed the
Department of Health Care Services, among others, to issue
updated instructions on or before July 1, 2009 to clarify
what information was being gathered with respect to
surrendered babies and their mothers. The bill was vetoed.
AB 81 (Torrico), 2007-08 Session, would have extended the
age at which an infant can be anonymously surrendered by a
birth parent without criminal liability for child
abandonment under the safe-surrender statute from 72 hours
or younger to seven days or younger. The bill would have
also authorized a local fire agency to be a safe-surrender
site, as specified, and required DSS to conduct a statewide
public awareness campaign for the safe-surrender program
and establish a toll-free number to provide the public with
information about the program. The bill was vetoed.
AB 1873 (Torrico), of 2005-06 Session, sought to expand the
safe-surrender law to allow a parent or individual with
lawful custody of a child 30 days old or younger to be
surrendered to a designated safe-surrender site. The bill
was vetoed.
SB 116 (Dutton), Chapter 625, Statutes of 2005, deleted the
sunset date of January 1, 2006 from the safe-surrender law.
SB 1413 (Brulte), Chapter 103, Statutes of 2004, immunized
from civil damages a person who assists another person to
voluntarily surrender physical custody of a newborn under
the safe- surrender law, provided that the person is not
compensated, renders the assistance in good faith, and
believes in good faith that the person being assisted is a
parent or other person having lawful custody of the
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newborn. "Assistance" was defined to include providing
transportation or accompanying the parent or other
individual to the safe-surrender site. The bill further
specified that this immunity would not extend to acts or
omissions constituting gross negligence.
SB 139 (Brulte), Chapter 150, Statutes 2003, provided 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.
AB 2817 (Maddox), Chapter 1099, Statutes 2002, requires
school districts to include information regarding the
safe-surrender law in sex education classes.
SB 1368 (Brulte), Chapter 824, Statutes of 2000, as
described above, originally enacted the state's
safe-surrender law.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12 Fund
Authorizes new sites $0 $0 $0 General
Expands safe surrender unknown, likely very minor
new Local*
eligibility costs
Expands mandate on CPS unknown, likely very
minor** General
Requires new DSS report $16
$32General
* These costs are not reimbursable
**Potentially reimbursable state mandate on county child
protective services (CPS)
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SUPPORT : (Verified 8/19/09)
American College of Obstetricians and Gynecologists
Association of California Healthcare Districts
California Attorneys for Criminal Justice
California Catholic Conference
California Commission on the Status of Women
California Fire Chiefs Association
California Medical Association
California Professional Firefighters
California Psychiatric Association
California Psychological Association
California State PTA
City of San Jose
Fire Districts Association of California
Kern Child Abuse Prevention Council
League of California Cities
Yolo County Board of Supervisors
OPPOSITION : (Verified 8/19/09)
California State Association of Counties
California Welfare Directors Association
Los Angeles County Board of Supervisors
Los Angeles County Sheriff's Department
ARGUMENTS IN SUPPORT : According to the author's office,
this bill expands the scope of a life-saving law. Despite
the protection of anonymity and confidentiality that the
current law provides, the author asserts that the stringent
72-hour provision fails to account for factors such as
postpartum depression, language and geographic barriers,
and the lack of public awareness. The author's office
states that these factors may prevent parents from making a
coherent and informed decision on such a crucial matter.
The State Auditor released a report in April 2008 on the
Safely Surrendered Baby Law, which found, among other
things, that funding for the program, public awareness, and
the information provided to counties about the program were
insufficient. (Bureau of State Audits, "Safely Surrendered
Baby Law: Stronger Guidance from the State and Better
Information for the Public Could Enhance Its Impact", April
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2008 Report 2007-124 (Report).)
The State Auditor further found that the number of
abandoned babies had previously been underreported by DSS.
The safe-surrender law originally required DSS to report
all children abandoned before they reached the age of one
year. However, DSS only gathered and reported statistics
on abandoned babies seven days old and younger. According
to the audit, at least 404 babies have been abandoned
between 2001 to 2007, as opposed to 175, the previously
reported number.
The author's office reports that shortly after the
Auditor's report was released, at least two babies were
abandoned. One of the babies was a nine-day-old baby
abandoned on the track of a Vacaville school. The mother
left the baby within a half-mile of a fire station and a
hospital, both designated safe-surrender sites. The baby
was too old to be safely surrendered and the mother had
suffered a psychotic breakdown.
Finally, the author's office states that currently 22
states have safe surrender provisions that give parents a
month or longer to surrender their baby. North Dakota and
Missouri have gone so far as to allow a parent up to one
year without the threat of prosecution for child
abandonment provided that the child is left with a health
care provider.
Supporters of the bill contend that the current 72-hour
threshold is too stringent and does not account for
situations where, for example, mothers suffer from
postpartum depression psychotic breaks weeks after giving
birth. The author's office also points out that some women
may live in counties where safe surrender sites are not
readily accessible. In this situation a woman may have to
find a mode of transportation into a different county to
leave the infant at a safe-surrender site, which may not be
feasible within 72 hours. The author's office also points
to the higher reported number of abandoned babies as
evidence that existing law needs to be adjusted to allow
for the surrender of infants older than 72 hours.
ARGUMENTS IN OPPOSITION : A number of law enforcement and
social service agencies strongly support the safe-surrender
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law, but are opposed to extending the surrender period to
30 days. Opponents claim that the original law was meant
to address particular situations in which newborns are at
greatest risk of abandonment. Expanding the law to 30
days, opponents claim, does nothing to address those
particular risks and will only create a number of
unintended and unwanted consequences, some of which may
even put children at greater risk.
The County Welfare Directors Association of California
(CWDA) writes that the 30-day provision is not supported by
research on child abandonment, is inconsistent with the
policy of anonymity, and circumvents well-considered child
protection and relinquishment policies. CWDA points out
that existing research clearly distinguishes between women
who kill or abandon babies shortly after birth and those
who endanger their babies later on. Research shows that
mothers who kill or abandon newborns do so within the first
24 hours because they are in a severe state of denial about
their pregnancy and/or have managed to keep their pregnancy
a secret. Without a safe-surrender site that maintains
their anonymity and protects their secret, young women in
such a situation are likely to abandon a baby in an unsafe
place. This is why the anonymity guaranteed by the safe
surrender is so essential.
CWDA claims that women who kill their babies after this
initial period do so for quite different reasons: They may
suffer from postpartum depression or mental illness, or
perhaps they are motivated by a misguided belief that the
child will be better off dead or that God is commanding
them to kill their child. Clearly these women need help,
but CWDA contends that safe-surrender sites will not help
them or their children. CWDA contends that women who have
cared for their children for up to 30 days have probably
not been able to keep this a secret from family and
friends. They would not benefit, therefore, from the
anonymity of a safe-surrender site. Of course, it is
possible that after the three-day period some women (or men
for that matter) may feel so overwhelmed that they feel
that they can no longer safely or adequately care for their
child. However, CWDA points out that there are already
existing methods for dealing with this situation, such as
"crisis nurseries" or lawful relinquishment. For example,
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existing voluntary relinquishment laws enable a parent to
surrender a child to a county child welfare agency and to
place a child in foster care for up to six months.
According to CWDA, these options not only remove the child
from potential danger but also provide counseling, and
opportunity to gather critically needed medical
information, and better security for the rights of
birthparents. This process is also better for children,
who in the safe-surrender context might be denied
information about their parental and medical history.
The Los Angeles County Board of Supervisors and Los Angeles
County Sheriff also oppose this bill for essentially the
same reasons set forth by CWDA. In addition to the
arguments made by CWDA, these agencies pointed out that
extending the time period might result in abusive parents
using the safe surrender law to escape criminal
responsibility for child abuse or neglect. The California
State Association of Counties is also opposed to the bill
in its current form, but states that seven days is a more
appropriate expansion of the surrender period.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Beall, Bill Berryhill, Tom
Berryhill, Blakeslee, Blumenfield, Brownley, Buchanan,
Caballero, Charles Calderon, Carter, Chesbro, Conway,
Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Furutani, Galgiani, Gilmore, Hall, Harkey, Hayashi,
Hernandez, Hill, Huber, Huffman, Jeffries, Jones,
Krekorian, Lieu, Bonnie Lowenthal, Ma, Mendoza, Monning,
Nava, Nestande, Nielsen, John A. Perez, V. Manuel Perez,
Portantino, Price, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Villines, Bass
NOES: Anderson, Fuller, Gaines, Hagman, Knight, Logue,
Miller, Niello, Tran
NO VOTE RECORDED: Block, Duvall, Garrick, Yamada
RJG:mw 8/19/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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