BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 2 3 8 AB 2380 (Lowenthal) 0 As Amended March 24, 2010 Hearing date: June 15, 2010 Penal Code AA:dl CHILD ABUSE: MANDATED REPORTING HISTORY Source: City Attorney of Los Angeles Prior Legislation: None Support: California District Attorneys Association; State Public Affairs Committee, Junior Leagues of California; Board of Behavioral Sciences; Crime Victims Action Alliance Opposition:None known Assembly Floor Vote: Ayes 74 - Noes 0 KEY ISSUE SHOULD THE DEFINITION OF "REASONABLE SUSPICION" AS APPLICABLE TO A MANDATED CHILD ABUSE OR NEGLECT REPORTER BE CLARIFIED TO PROVIDE (More) AB 2380 (Lowenthal) PageB THAT IT DOES NOT REQUIRE CERTAINTY THAT A CHILD HAS BEEN ABUSED, AND MAY BE BASED ON CREDIBLE INFORMATION FROM OTHER INDIVIDUALS, AS SPECIFIED? PURPOSE The purpose of this bill is to provide that a "reasonable suspicion" that a child has been a victim of child abuse or neglect does not require certainty that a child has been abused, and may be based on credible information from other individuals for the purpose of making a report under the Child Abuse and Neglect Reporting ACT (CANRA), as specified. Current law contains the Child Abuse and Neglect Reporting Act ("CANRA"), which generally is intended to protect children from abuse and neglect. (Penal Code 11164 et seq.) Under current law the term "child abuse or neglect" for the purposes of CANRA "includes physical injury or death inflicted by other than accidental means upon a child by another person, sexual abuse . . . , neglect . . . , the willful harming or injuring of a child or the endangering of the person or health of a child, . . . and unlawful corporal punishment or injury . . . . 'Child abuse or neglect' does not include a mutual affray between minors. 'Child abuse or neglect' does not include an injury caused by reasonable and necessary force used by a peace officer acting within the course and scope of his or her employment as a peace officer." (Penal Code 11165.6.) Current law requires a mandated reporter to make a report "whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. . . ." (Penal Code 11166.) Current law provides that, "(f)or the purposes of this article, (More) AB 2380 (Lowenthal) PageC "reasonable suspicion" means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. For the purpose of this article, the pregnancy of a minor does not, in and of itself, constitute a basis for a reasonable suspicion of sexual abuse." (Penal Code 11166(a)(1).) This bill would add the following language to the existing definition of "reasonable suspicion" for purposes of CANRA: "Reasonable suspicion" does not require certainty that child abuse or neglect has occurred nor does it require a specific medical indication of child abuse or neglect; any "reasonable suspicion" is sufficient. "Reasonable suspicion" may be based on any information considered credible by the reporter, including statements from other individuals. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, (More) AB 2380 (Lowenthal) PageD "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor (More) AB 2380 (Lowenthal) PageE Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010 ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does not aggravate the prison overcrowding crisis described above. COMMENTS 1. Stated Need for This Bill The author states: Across all professions who deal with the abuse of children there appears one constant: there is great confusion regarding what constitutes "reasonable suspicion" for purposes of triggering the legal mandated reporting obligation. It is clear that while the intent of the law is to insure that all reasonable suspicions of child abuse and neglect are reported, the lack of a consistent understanding of what this phrase means has obviously inhibited many professionals from reporting abuse in a ---------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 2380 (Lowenthal) PageF proper and timely fashion. This is particularly evident among medical professionals who we work with where reports are often delayed by hours, if not days, while a specific medical diagnosis is determined. The delay in reporting can result in the destruction of crime scene evidence and may ultimately inhibit efforts of law enforcement personnel to identify perpetrators and to hold them accountable for their physical and sexual abuse of children. Not to mention the obvious fear that continuing and prolonged abuse of children will go undetected and unreported. This bill amends Penal Code Section 11166(a)(1) to clarify the definition of "reasonable suspicion" as the trigger for the mandating reporting of child abuse by making it clear that no actual knowledge is required. The bill would also make clear in the definition that statements from third parties are an acceptable source of information when determining whether or not there is "reasonable suspicion." Attached is a Pediatrics Journal article which demonstrates this problem. In addition, the Office of the City Attorney of Los Angeles, through its participation in the Inter-Agency Council on Child Abuse and Neglect (ICAN) has frequently heard from mandated reporters that they feel the current language is too vague and that they must have concrete knowledge before they can make a report, which is not the case. 2. What This Bill Would Do As explained above, under current law the trigger for mandated child abuse and neglect reports is whenever the mandated reporter, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observes a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. . . ." (More) AB 2380 (Lowenthal) PageG "Reasonable suspicion" is defined to mean that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. This bill would clarify and expand the definition of "reasonable suspicion" applicable to mandatory child abuse and neglect reporters to expressly provide that reasonable suspicion in this context: 1) does not require certainty that child abuse or neglect has occurred; 2) does not require a specific medical indication of child abuse or neglect; 3) provides that any "reasonable suspicion" is sufficient; and 4) provides that "reasonable suspicion" may be based on any information considered credible by the reporter, including statements from other individuals. 3. Background - "Reasonable Suspicion" The Los Angeles County Child Abuse and Neglect Protocol, prepared by the Inter-Agency Council on Child Abuse and Neglect, includes the following information about the reasonable suspicion reporting standard under current law: Reasonable suspicion means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing, when appropriate, on his or her training and experience, to suspect child abuse or neglect. {PC 11166(a)(1)} [P]rofessionals . . . must evaluate facts known to them in light of their training and experience to determine whether they have an objectively reasonable suspicion of child abuse. [Citation.] However, nothing in the Act requires professionals . . . to obtain information they would not (More) AB 2380 (Lowenthal) PageH ordinarily obtain in the course of providing care or treatment. Thus, the duty to report [to a child protective agency] must be premised on information obtained by the [professional] in the ordinary course of providing care and treatment according to standards prevailing in the medical profession. Whether this information creates a reasonable suspicion of reportable child abuse will depend in many instances on application of the [professional's] training and experience, as the act expressly directs. People ex rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc. (1988) 203 Cal. App. 3d 225, 239-240.<2> These protocols include an appendix entitled, "Determining Reasonable Suspicion," which includes the following general observation: Because each mandated reporter determines reasonable suspicion based on his or her own training and experience, not every factor in this document will apply to every professional; nor is this document intended to encourage professionals to exceed their scope of practice. These guidelines are prepared to be used in conjunction with the Los Angeles County Child Abuse Protocol. The mandated reporter should not conduct an investigation. Once he or she determines reasonable suspicion of abuse or neglect exists, the only obligation is to file a report. It is the job of law ---------------------- <2> Protocols available online at http://ican4kids.org/documents/LACounty_Child_Abuse_and_Neglect_P rotocol.pdf . (More) AB 2380 (Lowenthal) PageI enforcement, DCFS, and the courts to determine whether or not child abuse has in fact occurred. When a well-meaning mandatory reporter seeks more information than necessary to determine reasonable suspicion, it can inadvertently impact a future investigation. For example, repeated detailed questioning of the child may influence future disclosures or potential testimony. In addition, such a premature investigation may signal a parent to make up explanations or destroy evidence. Any of these situations could doom the child to future abuse.<3> WILL THE LANGUAGE IN THIS BILL PROMOTE A BETTER UNDERSTANDING OF THE TERM "REASONABLE SUSPICION" IN THE CONTEXT OF MANDATORY CHILD ABUSE AND NEGLECT REPORTING? This bill would expressly state that, "reasonable suspicion" may be based on any information considered credible by the reporter, including statements from other individuals." The author and/or members of the Committee may wish to consider whether the addition of this language may inadvertently lead mandated reporters to believe that they should conduct witness interviews on their own, which is counter to the protocols noted above. 4. Background: The Child Abuse Central Index; Ongoing Concerns The Department of Justice ("DOJ") maintains the Child Abuse Central Index ("CACI"), which is a "statewide reference file"<4> intended to refer authorized individuals or entities to underlying child abuse investigative reports maintained at the reporting agency. In 2007, DOJ indicated that CACI contained the following --------------------------- <3> Id. <4> California Code of Regulations ("CCR"), tit. 11, 900. (More) AB 2380 (Lowenthal) PageJ aggregate information: Number of Reports in CACI =773,473 Number of Suspects in CACI =816,468 Number of Victims in CACI =995,612 CACI was created in 1965 as a centralized system for collecting reports of suspected child abuse from law enforcement agencies, physicians, teachers and others. Access to CACI initially was limited to official investigations of open child abuse cases, but in 1986 the Legislature expanded access to allow the Department of Social Services (DSS) to use the information for running background checks on applications for licenses, adoptions, and employment in child care and related services positions. DOJ provides the following summary of CACI on its current Web site: The Attorney General's Child Protection Program administers the Child Abuse Central Index, which was created by the Legislature in 1965 as a tool for state and local agencies to help protect the health and safety of California's children. Each year, child abuse investigations are reported to the Child Abuse Central Index. These reports pertain to investigations of alleged physical abuse, sexual abuse, mental/emotional abuse, and/or severe neglect of a child. The reports are submitted by police, sheriff's, county welfare and probation departments. To aid law enforcement investigations and prosecutions, the Child Protection Program makes information from the Child Abuse Central Index available, including notices of new child abuse investigation reports involving the same reported suspects and/or victims. Information also is provided (More) AB 2380 (Lowenthal) PageK to designated social welfare agencies to help screen applicants for licensing or employment in child care facilities and foster homes, and to aid in background checks for other possible child placements, and adoptions. Dissemination of Index information is restricted and controlled by the Penal Code. Information on file in the Child Abuse Central Index include: Names and personal descriptors of the suspects and victims listed on reports; Reporting agency that investigated the incident; The name and/or number assigned to the case by the investigating agency; Type(s) of abuse investigated; and The findings of the investigation for the incident, which is either substantiated or inconclusive. It is important to note that the effectiveness of the index is only as good as the quality of the information reported. Each reporting agency is required by law to forward to DOJ a summary of every child abuse incident it investigates, unless the incident is determined to be unfounded or general neglect. Each reporting agency is responsible for the accuracy, completeness and retention of reports submitted.<5> As illustrated above, CACI is set up to be a directory that tells investigators where they can obtain source information about child abuse reports, rather than providing the information --------------------------- <5> See http://ag..ca.gov/childabuse. (More) AB 2380 (Lowenthal) PageL itself.<6> The use, utility and fairness of CACI has been the subject of discussion, debate and litigation for over a decade. While this bill does not directly raise the issues surrounding CACI, the analysis of another bill prepared by the Assembly Committee on Public Safety provides useful background on these issues, including the following information: 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 ---------------------- <6> California Code of Regulations ("CCR"), tit. 11, 902 states: "The purpose of (CACI) is to serve as the index of investigated reports of suspected child abuse and severe neglect maintained by DOJ pursuant to Penal Code Section 11170 (a). The (CACI) consists only of those reports of child abuse and severe neglect that meet the criteria specified in the Child Abuse and Neglect Reporting Act (Penal Code 11164, et seq.) and that are complete as specified by these regulations. The (CACI) is a reference file and is used to refer authorized individuals or entities to the underlying child abuse investigative report maintained at the reporting agency. It is the responsibility of authorized individuals or entities to obtain and review the underlying investigative report and make their own assessment of the merits of the child abuse report. They shall not act solely upon (CACI) information." See also 11 CCR 904: "all submissions received by DOJ staff are reviewed to determine that they meet the definition of a report in these regulations. DOJ staff verifies only that the information entered into (CACI) is consistent with the information as reported by the CPA. The DOJ presumes that the substance of the information provided is accurate and does not conduct a separate investigation to verify the accuracy of the CPA's investigation." (emphasis added) (More) AB 2380 (Lowenthal) PageM 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. . . . 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]. . . . . . (I)t 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. . . . 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." . . . 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 (More) AB 2380 (Lowenthal) PageN 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) . . .] Thus, the investigator and agency that conducted the investigation are responsible for making, and correcting, the determination that a report is unfounded. (More) 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." . . . 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. . . . However, there are no regulations that provide additional regulatory procedures for challenging a listing on the CACI or the validity of the underlying report. . . . 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 (More) AB 2380 (Lowenthal) PageP 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 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." (citation.) 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. . . . "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 AB 2380 (Lowenthal) PageQ 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." (citation.) . . . 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.<7> 5. Third-Party Statements This bill would provide that for purposes of mandated child abuse and neglect reports, "reasonable suspicion" may be based on any information considered credible by the reporter, including statements from other individuals. The author and/or members of the Committee may wish to consider whether this bill's language about statements from other individuals would require mandated reporters, for whom there is absolute immunity, to make reports based purely on gossip from third parties. Currently, the standard is the reporter ' s knowledge or observation; this bill arguably would expand th is personal knowledge/observation requirement to include anything a third party says to them - statements which would be hearsay in court, but under CANRA would trigger an investigation and, potentially, inclusion of the subject of the allegations in the CACI . The reasonableness standard in current law thus would appear to be abrogated by a new standard : so long as the reporter thinks the third party ' s statement is " credible ," they would have to report. SHOULD THIS LANGUAGE BE DELETED FROM THE BILL? --------------------------- <7> Analysis of AB 2339 prepared by the Assembly Committee on Public Safety (April 13, 2010). AB 2380 (Lowenthal) PageR ***************