BILL ANALYSIS
AB 2339
Page 1
Date of Hearing: April 13, 2010
Counsel: Nicole J. Hanson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2339 (Smyth) - As Introduced: February 19, 2010
SUMMARY : Provides that information relevant to a report made
relating to a child suffering from serious emotional damage or
in substantial risk thereof, may be given to an investigating
and licensing agency that is investigating known or suspected
child abuse..
EXISTING LAW :
1)Requires that any mandated reporter who has knowledge of or
observes a child, in his or her professional capacity or
within the scope of his or her employment whom he or she knows
or reasonably suspects has been the victim of child abuse,
shall report it immediately to a specified child protection
agency. [Penal Code Section 11166(a).]
2)Provides that reports of suspected child abuse or neglect
shall be made by a mandated reporter to any police or
sheriff's department, a county probation department if
designated by the county to receive mandated reports, or the
county welfare department. (Penal Code Section 11165.9.)
3)Defines "mandated reporter" as specific child-care custodians,
health practitioners, law enforcement officers, and other
medical and professional persons. (Penal Code Section
11165.7.)
4)Mandates any reporter who has knowledge or who reasonably
suspects that a child is suffering serious emotional damage or
it at a substantial risk of suffering serious emotional
damage, evidenced by states of being or behavior, including,
but not limited to, severe anxiety, depression, withdrawal, or
untoward aggressive behavior toward self or others may make a
report to any police department or sheriff's department, not
including a school district police or security department,
county probation department, or county welfare department.
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(Penal Code Section 11166.06.)
5)Mandates reports of suspected child abuse or neglect to
include the name, business address, and telephone number of
the mandated reporter; the capacity that makes the person a
mandated reporter; and the information that gave rise to the
reasonable suspicion of child abuse or neglect and the source
or sources of that information. If a report is made, the
following information, if known, shall also be included in the
report: the child's name, the child's address, present
location, and, if applicable, school, grade, and class; the
names, addresses, and telephone numbers of the child's parents
or guardians; and the name, address, telephone number, and
other relevant personal information about the person or
persons who might have abused or neglected the child. The
mandated reporter shall make a report even if some of this
information is not known or is uncertain to him or her.
[Penal Code Section 11167(a).]
6)States that information relevant to the incident of child
abuse or neglect may be given to an investigator from an
agency that is investigating the known or suspected case of
child abuse or neglect. [Penal Code Section 11167(b).]
7)Allows information relevant to the incident of child abuse or
neglect, including the investigation report and other
pertinent materials, may be given to the licensing agency when
it is investigating a known or suspected case of child abuse
or neglect. [Penal Code Section 11167(c).]
8)Keeps the identity of all persons who report under this
article confidential and disclosed only among agencies
receiving or investigating mandated reports. No agency or
person shall disclose the identity of any person who reports
under this article to that person's employer, except with the
employee's consent or by court order. [Penal Code Section
11167(d).]
9)Requires specified government agencies to forward to the DOJ a
report of every case of suspected child abuse or neglect which
is determined not to be unfounded; and if a previously filed
report proves to be unfounded, the DOJ shall be notified in
writing, and shall not retain that report. [Penal Code
Section 11169(a).]
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10)Necessitates at the time a reporting agency forwards a report
of suspected child abuse or neglect to the DOJ, that the
agency notify the known or suspected child abuser that he or
she has been reported to the Child Abuse Central Index (CACI).
This requirement applies only to reports forwarded to DOJ
after January 1, 1998 (the date upon which the requirement
became operative). [Penal Code Section 11169(b).]
11)Defines the following types of suspected child abuse or
neglect reports:
a) "Unfounded report" is a report that is determined by the
investigator to be false, inherently improbable, an
accidental injury, or not to constitute child abuse or
neglect, as defined.
b) "Substantiated report" is a report that is determined by
the investigator based on some credible evidence to
constitute child abuse or neglect, as defined.
c) "Inconclusive report" is a report that is determined not
to be unfounded, but in which the findings are inconclusive
and there is insufficient evidence to determine if child
abuse or neglect, as defined, has occurred. (Penal Code
Section 11165.12.)
d) Requires the DOJ to maintain an index of all reports of
child abuse and neglect submitted by the specified
reporting agencies. The index shall be continually updated
and shall not contain any reports determined to be
unfounded. [Penal Code Section 11170(a)(1).]
e) States that the DOJ shall act only as a repository of
the suspected child abuse or neglect reports that are
maintained in CACI, and that the reporting agencies are
responsible for the accuracy, completeness, and retention
of reports. [Penal Code Section 11170(a)(2).]
f) Requires that information from an inconclusive or
unsubstantiated suspected child abuse or neglect report
shall be deleted from CACI after 10 years if no subsequent
report concerning the suspected child abuser is received
within the 10-year period. [Penal Code Section
11170(a)(3).]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 2339
strengthens existing legal protections currently offered to
mandated reporters of child abuse and emotional damage. In
short, reporters of emotional damage are authorized to make
reports of abuse, but not legally protected to share those
reports with investigating state agencies. This bill
guarantees those critical legal protections, which are already
offered to other kinds of mandated reports. The bill is
important because it enhances the state's ability to
thoroughly investigate claims of emotional damage, therefore
helping to ensure their veracity and protect children from
future abuse."
2)Background : According to information provided by the author,
"In California, mandated reporters are required to make
reports of suspected child abuse or neglect. These mandated
reporters, such as school teachers, health care professionals
and social workers, are therefore immune from liability as a
result of providing the information to the investigating
agency.
"Another Penal Code section, 11166.05, authorizes, but does not
require, a mandated reporter to report instances where a child
is suspected of suffering serious emotional damage.
"Due to the difference in language, a mandated reporter who
cooperates with an investigator may be subject to discipline
because the reports of emotional damage made pursuant to
Section 11166.05 are not categorized or referred to as child
abuse reports.
"In short, reporters of emotional damage are authorized to make
reports, but not legally protected to share the reports with
investigatory agencies
"AB 2339 will protect reporters of emotional abuse from threats
of liability or discipline. The bill simply changes Penal Code
11167(b) to include "information relevant to a report made
pursuant to Section 11166.05" and thus allows mandated
reporters to discuss cases with investigators without fear of
violating the law."
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3)The Child Abuse Reporting Act (CANRA) and CACI : California
maintains a database of "reports of suspected child abuse and
severe neglect," known as "CACI." [Penal Code Section
11170(a)(2).] California has collected such information since
1965; since 1988, the maintenance of the CACI has been
governed by the CANRA. (See Penal Code Sections 11164 to
11174.)
There are many different ways a person can find himself or
herself listed in the CACI. CANRA mandates that various
statutorily enumerated individuals report instances of known
or suspected child abuse and neglect either to a law
enforcement agency or to a child welfare agency. (Penal Code
Section 11165.9.) These agencies, in turn, are required to
conduct "an active investigation," which involves
investigating the allegation and determining whether the
incident is "substantiated, inconclusive, or unfounded."
[Penal Code Section 11169(a).]
CANRA requires the investigating agency to send to the
Department of Justice (DOJ) a report of every case it
investigates of known or suspected child abuse or severe
neglect when it is determined not to be unfounded, but the
"agency shall not forward a report unless it has conducted an
active investigation and determined that the report is not
unfounded. [Penal Code Section 11169(a).] CANRA defines a
report as "unfounded" if it is "determined by the investigator
who conducted the investigation: (a) to be false, (b)
inherently improbable, (c) involves an accidental injury, or
(d) does not to constitute child abuse or neglect. [Penal
Code Section 11165.12(a).] Reports may also be classified as,
"substantiated" or "inconclusive." A "substantiated report"
means that "the investigator who conducted the investigation"
determined that the report "constitute[d] child abuse or
neglect . . . based upon evidence that makes it more likely
than not that child abuse or neglect occurred." [Penal Code
Section 11165.12(b).] An "inconclusive report" is one where
"the investigator who conducted the investigation" found the
report "not to be unfounded, but the findings are inconclusive
and there is insufficient evidence to determine whether child
abuse or
neglect . . . occurred." [Penal Code Section 11165.12(c).]
Both inconclusive and substantiated reports are submitted to
DOJ for inclusion in the CACI. [See Penal Code Sections
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11169(a) and (c), and 11170(a)(3).]
a) CACI Inclusion Consequences : CANRA states that DOJ
shall make the information in the Computer Aided Dispatch
(CAD) available to a broad range of third parties for a
variety of purposes. For example, the information in the
CAD is made available "to the State Department of Social
Services [(DSS)], or to any county licensing agency that
has contracted with the state for the performance of
licensing duties . . . concerning any person who is an
applicant for licensure or any adult who resides or is
employed in the home of an applicant for licensure or who
is an applicant for employment in a position having
supervisorial or disciplinary power over a child or
children, or who will provide 24-hour care for a child or
children in a residential home or facility. . . . " [Penal
Code Section 11170(b)(4).] The information is also
provided to persons "making inquiries for purposes of
pre-employment background investigations for peace
officers, child care licensing or employment, adoption or
child placement." [Id. at subd. (b)(8).] The "Court
Appointed Special Advocate program that is conducting a
background investigation of an applicant seeking employment
with the program or a volunteer position as a Court
Appointed Special Advocate" also has access to CACI
information. [Id. at subd. (b)(5).]
The scope of CANRA is not limited to California institutions.
CANRA makes the CACI information available "to an
out-of-state agency, for purposes of approving a
prospective foster or adoptive parent or relative caregiver
for placement of a child" so long as "the out-of-state
statute or interstate compact provision that requires that
the information received in response to the inquiry shall
be disclosed and used for no purpose other than conducting
background checks in foster or adoptive cases." [Id. at
subd. (e)(1).]
Some state agencies are required to consult the CACI prior to
issuing a variety of state-issued licenses or other
benefits. For example, California Health and Safety Code
1522.1 provides that "[p]rior to granting a license to, or
otherwise approving, any individual to care for children,
the [DSS] shall check the [CACI]." [Health and Safety Code
Section 1522.1(a).] Similarly, in order to work as a
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volunteer in crisis nurseries, California law mandates that
"[v]olunteers shall complete a [CACI] check." [Health and
Safety Code Section 1526.8(b)(2).] Also, "[p]rior to
granting a license to or otherwise approving any individual
to care for children in either a family day care home or a
day care center, the [DSS] shall check the [CACI]."
[Health and Safety Code Section 1596.877(b).]
California Welfare and Institutions Code Section 361.4
similarly requires that "[w]henever a child may be placed
in the home of a relative, or a prospective guardian or
other person who is not a licensed or certified foster
parent, the county social worker shall cause a check of the
[CACI] . . . to be requested from the [CA DOJ]. The [CACI]
check shall be conducted on all persons over 18 years of
age living in the home." [Welfare and Institutions Code
Section 361.4(c).]
Finally, California has implemented a pilot program through
DSS to create a "child-centered resource family approval
process" in lieu of existing processes for "licensing
foster family homes, approving relatives and nonrelative
extended family members as foster care providers, and
approving adoptive families." [Welfare and Institutions
Code Section 16519.5(a).] The approval standards under
this statute include "utilizing a check of the [CACI]."
[Id. at subd. (d)(1)(A)(i).]
Based on the aforementioned provisions, it is apparent that
the CACI listing plays an integral role in obtaining many
rights under California law, including employment,
licenses, volunteer opportunities, and even child custody.
b) CACI Removal : CANRA requires that at the time the
agency forwards the report to the CA DOJ for inclusion in
the CACI, "the agency shall also notify in writing the
known or suspected child abuser that he or she has been
reported to the [CACI]." [Penal Code Section 11169(b).]
The identified child abuser may obtain the report of
suspected child abuse and information contained within
their CACI listing. [See Penal Code Section
11167.5(b)(11).] CANRA provides that an individual who was
listed in the CACI pursuant to an "inconclusive or
unsubstantiated report" will be deleted from the CACI after
10 years as long as no subsequent report containing his or
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her name is received within that time period. [Penal Code
Section 11170(a)(3).] There is no provision for removing
an individual who was originally listed in the CACI
pursuant to a "substantiated report"; such a person
apparently remains listed in the CACI permanently. [Id. at
subd. (a)(1).]
CANRA offers no procedure for challenging a current listing
on the CACI. CANRA does provide, however, that "[i]f a
report has previously been filed which subsequently proves
to be unfounded, [DOJ] shall be notified in writing of that
fact and shall not retain the report." [Penal Code Section
11169(a).] The statute does not describe who must notify
DOJ of that fact or how the determination that a report has
"subsequently prove[d] to be unfounded" is to be made.
CANRA also provides that the CACI "shall be continually
updated by the department and shall not contain any reports
that are determined to be unfounded." [Penal Code Section
11170(a)(1).]
Only the submitting agency can decide if a report has proved
unfounded. CANRA provides that "[t]he submitting agencies
are responsible for the accuracy, completeness, and
retention of the reports," thus suggesting that the
submitting agencies are also responsible for removing
reports that are determined to be unfounded. [Id. at subd.
(a)(2).] Furthermore, as explained above, CANRA defines an
"unfounded report" as "a report that is determined by the
investigator who conducted the investigation to be false,
to be inherently improbable, to involve an accidental
injury, or not to constitute child abuse or neglect."
[Penal Code Section 11165.12(a) and (b) (emphasis added).]
Thus, the investigator and agency that conducted the
investigation are responsible for making, and correcting,
the determination that a report is unfounded.
Although CANRA itself provides no procedure for an individual
to challenge a CACI listing, nothing in the statute
prevents a submitting agency from enacting some procedure
to allow an individual to challenge their listing or seek
to have a determination made that a report is "unfounded."
[Penal Code Section 11170(a)(2).] CANRA also contemplates
that DOJ "may adopt rules governing recordkeeping and
reporting," which may allow DOJ to enact some procedure
beyond that provided by CANRA. [Id. at subd. (a)(1).]
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However, there are no regulations that provide additional
regulatory procedures for challenging a listing on the CACI
or the validity of the underlying report.
4)Lack of CACI Removal Procedures Violates Due Process : In
Humphries v. County of L.A. (2009) 554 F.3d 1170, plaintiff
parents were accused of abuse by their child. The parents
were arrested, and had their other children taken away from
them. When a doctor confirmed that the abuse charges could
not be true, the State dismissed the criminal case against
them. The parents then petitioned the criminal court, which
found them "factually innocent" of the charges for which they
had been arrested and ordered the arrest records sealed and
destroyed. Similarly, the juvenile court dismissed all counts
of the dependency petition as "not true." Nevertheless, the
parents were identified as substantiated child abusers and
placed on CACI. The parents thereafter attempted to be
removed from CACI, but found that California offers no
procedure to remove their listing.
Hence, the parents instituted a claim alleging that the County
of Los Angeles violated their Fourteenth Amendment right to
procedural due process by listing and continuing to list them
on the CACI without any available process to challenge that
listing. The Ninth Circuit Court of Appeals ruled in favor of
the parents. The court found that the resultant stigma, plus
the various statutory consequences of being listed on CACI,
affected their liberty interests. The lack of any meaningful,
guaranteed procedural safeguards before the initial placement
on CACI combined with the lack of any effective process for
removal from CACI violated the parents' due process rights.
While the court found that the Act did not provide any
procedural safeguards for those listed in the CACI, the court
also concluded that nothing in the CANRA prevented the
sheriff's department, as the reporting agency, from developing
a procedure to allow the Humphries to challenge their listing.
The court stated, "Nothing we have said here infringes on the
ability of the police, or other agencies, to conduct a full
investigation into allegations of child abuse. The need for
such investigations--which, we acknowledge, are intrusive and
difficult to conduct--is obvious. Nor does anything we have
said undermine the ability of appropriate law enforcement
agencies to maintain records on such investigations, even if
the investigations do not result in formal charges or
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convictions . . . What California has done is not just
maintain a central investigatory file, but attach legal
consequences to the mere listing in such files. Once
California effectively required agencies to consult the CACI
before issuing licenses, the CACI ceased to be a mere
investigatory tool. The fact of listing on the CACI became,
in substance, a judgment against those listed." (Humphries v.
County of L.A., supra, 554 F.3d at 1201.)
Beyond declaring that California's procedural protections are
"constitutionally inadequate," the court refused to spell out
precisely what kind of procedure the State must create.
(Ibid.) "The state has a great deal of flexibility in
fashioning its procedures, and it should have the full range
of options open to it. We do not hold that California must
necessarily create some hearing prior to listing individuals
on CACI. At the very least, however, California must promptly
notify a suspected child abuser that his name is on the CACI
and provide 'some kind of hearing' by which he can challenge
his inclusion." [Ibid. quoting Goss v. Lopez (1975) 419 U.S.
565, 578.]
This bill provides that information relevant to a report made
relating to a child suffering from serious emotional damage or
in substantial risk thereof may be given to an investigating
or licensing agency. Under Humphries, such agencies should
provide procedures to allow persons to challenge their CACI
listing to protect Due Process Rights. To date, there has
been no statutory change in the CACI removal procedures.
5)Prior Legislation :
a) SB 1312 (Peace), Chapter 1106, Statutes of 2003,
initially created a task force to review the DOJ's CACI and
provided persons subject to inclusion on the CACI the right
to a hearing, and procedures by which these persons may
contest inclusion. SB 1312's original subject matter was
significantly amended into an unrelated public safety
topic.
b) AB 2442 (Keeley), Chapter 1064, Statutes of 2003,
established the CANRA Task Force for the purpose of
reviewing the act and the CACI.
c) AB 1447 (Granlund), of the 1999-2000 Legislative
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Session, would have made numerous changes to the CACI
including the purging of old reports. AB 1477 was never
heard by Senate Judiciary Committee.
d) SB 644 (Polanco), Chapter 842, Statutes of 1997, enacted
the Lance's Law Child Safety Reform Act of 1997. SB 644
added entities that may access information in the DOJ's
CACI and broadens circumstances under which access may
occur.
e) AB 1065 (Goldsmith), Chapter 844, Statutes of 1997,
provided that DOJ shall make available specified child
abuse information concerning relative caregivers to child
protective agencies.
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
None
Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916)
319-3744