BILL ANALYSIS                                                                                                                                                                                                    


          |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  


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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  

           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.

          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        

          * 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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