BILL NUMBER: AB 717 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 31, 2011
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 17, 2011
An act to amend Section 11169 Sections
11169 and 11170 of the Penal Code, relating to the Child Abuse
Central Index.
LEGISLATIVE COUNSEL'S DIGEST
AB 717, as amended, Ammiano. Child Abuse Central Index.
Existing law, subject to exceptions, requires specified local
agencies to forward to the Department of Justice a report in writing
of every case it investigates of known or suspected child abuse or
severe neglect which is determined not to be unfounded, for purposes
of inclusion by the department in the Child Abuse Central Index
(CACI) .
Existing law prohibits those agencies from forwarding reports to
the department unless the agency has conducted an active
investigation and determined that the report is not unfounded.
Existing law further requires, if a report has previously been filed
which subsequently proves to be unfounded, the department be notified
of that fact and the department shall not retain the report.
This bill would instead apply those provisions to reports that are
substantiated. The bill would also provide that the Department of
Justice, in responding to regulatory requests made by the State
Department of Social Services, a county welfare department, a Court
Appointed Special Advocate program, a tribal court or a tribal child
welfare agency of a tribe or consortium of tribes, an out of state
agency, or any other licensing agency representative, shall only
provide reports from the Child Abuse Central Index (CACI) of persons
notified of the listing in the CACI and who were offered a hearing on
or after March 2008. The bill would further require that the
department, in responding to requests from law enforcement or county
probation, provide information from the CACI for investigative
purposes only and the information may not be used in any other
capacity.
Existing law charges the Department of Justice with maintaining
CACI and the index shall be continually updated by the department and
shall not contain any reports that are determined to be unfounded.
This bill would instead provide that only information from reports
that are reported as substantiated would be filed, and all other
determinations would be removed from the centralized list. The bill
would require the department to furnish a report semiannually, as
prescribed by the Attorney General, to authorized agencies required
to report instances of known or suspected child abuse or severe
neglect for the purpose of validating the accuracy, completeness, and
retention of child abuse reports maintained in the CACI that were
previously submitted by their agency. The bill would require the
agencies to notify the department, within 60 calendar days from the
date of the report, of the CACI records that no longer meet statutory
requirements for retention in the repository, and if an agency fails
to notify the department within 60 calendar days, the records
contained in the report shall be deemed incomplete and would be
deleted. The bill would also provide that if an agency fails to
accurately maintain and update its previously submitted reports the
agency may be held liable and responsible for any consequential
action resulting from a violation of these provisions.
By imposing additional duties on local government agencies, this
bill would impose a state-mandated local program.
Existing law requires the Department of Justice to make
information in the CACI available to investigative agencies or
probation officers, or court investigators, in connection with the
placement of children who are subject to the jurisdiction of the
courts. Existing law provides that upon receipt of relevant
information concerning child abuse or neglect investigation reports
contained in the index from the department, the agency or court
investigator shall notify, in writing, the person listed in the CACI
that he or she is in the index, and requires the notification to
include the name of the reporting agency and the date of the report.
This bill would delete that notification requirement.
The bill would make additional conforming changes.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would make a technical, nonsubstantive change to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11169 of the Penal Code is amended to read:
11169. (a) An agency specified in Section 11165.9 shall forward
to the Department of Justice a report in writing of every case it
investigates of known or suspected child abuse or severe neglect that
is determined not to be unfounded to be
substantiated , other than cases coming within subdivision (b)
of Section 11165.2. An agency shall not forward a report to the
Department of Justice unless it has conducted an active investigation
and determined that the report is not unfounded
substantiated , as defined in Section 11165.12. If a
report has previously been filed which subsequently proves to be
unfounded not substantiated , the
Department of Justice shall be notified in writing of that fact and
shall not retain the report. The reports required by this section
shall be in a form approved by the Department of Justice and may be
sent by fax or electronic transmission. An agency specified in
Section 11165.9 receiving a written report from another agency
specified in Section 11165.9 shall not send that report to the
Department of Justice.
(b) The Department of Justice shall make available information on
the Child Abuse Central Index (CACI) as follows:
(1) Regulatory requests made by the State Department of Social
Services, a county welfare department, a Court Appointed Special
Advocate program, a tribal court or tribal child welfare agency of a
tribe or consortium of tribes, an out-of-state agency, or any other
licensing agency representative shall only receive reports of persons
notified of the listing in the CACI and offered a hearing on or
after March 1, 2008.
(2) Requests made by law enforcement or county probation shall
receive information for investigative purposes only and the
information may not be used in any other capacity.
(b)
(c) At the time an agency specified in Section 11165.9
forwards a report in writing to the Department of Justice pursuant to
subdivision (a), the agency shall also notify in writing the known
or suspected child abuser that he or she has been reported to the
Child Abuse Central Index. The notice required by this section shall
be in a form approved by the Department of Justice. The requirements
of this subdivision shall apply with respect to reports forwarded to
the department on or after the date on which this subdivision becomes
operative.
(c) Agencies shall retain child abuse or neglect investigative
reports that result in a report filed with the Department of Justice
pursuant to subdivision (a) for the same period of time that the
information is required to be maintained on the Child Abuse Central
Index pursuant to this section and subdivision (a) of Section 11170.
Nothing in this section precludes an agency from retaining the
reports for a longer period of time if required by law.
(d) The immunity provisions of Section 11172 shall not apply to
the submission of a report by an agency pursuant to this section.
However, nothing in this section shall be construed to alter or
diminish any other immunity provisions of state or federal law.
SEC. 2. Section 11170 of the Penal Code
is amended to read:
11170. (a) (1) The Department of Justice shall maintain an index
of all reports of child abuse and severe neglect submitted pursuant
to Section 11169. The index shall be continually updated by the
department and shall not contain any reports that are determined to
be unfounded not substantiated . The
department may adopt rules governing recordkeeping and reporting
pursuant to this article.
(2) The department shall act only as a repository of reports of
suspected child abuse and severe neglect to be maintained in the
Child Abuse Central Index (CACI) pursuant to paragraph
(1). The submitting agencies are responsible for the accuracy,
completeness, and retention of the reports described in this section.
The department shall be responsible for ensuring that the
Child Abuse Central Index CACI accurately
reflects the report it receives from the submitting agency.
(3) Information from an inconclusive or unsubstantiated report
filed pursuant to subdivision (a) of Section 11169 shall be deleted
from the Child Abuse Central Index after 10 years if no subsequent
report concerning the same suspected child abuser is received within
that time period. If a subsequent report is received within that
10-year period, information from any prior report, as well as any
subsequently filed report, shall be maintained on the Child Abuse
Central Index for a period of 10 years from the time the most recent
report is received by the department.
(3) Only information from reports that are reported as
substantiated shall be filed pursuant to paragraph (1), and all other
determinations shall be removed from the centralized list. The
department shall furnish a report semiannually, as prescribed by the
Attorney General, to authorized agencies required to report instances
of known or suspected child abuse or severe neglect pursuant to
Section 11169 for the purpose of validating the accuracy,
completeness, and retention of child abuse reports maintained in the
CACI previously submitted by their agency. In order to maintain the
integrity of the CACI, the agency shall notify the department, within
60 calendar days from the date of the report, of the CACI records
that no longer meet statutory requirements for retention in the
repository and those records shall be deleted from the CACI.
Otherwise, if an agency fails to notify the department within 60
calendar days, the records contained in the report shall be deemed
incomplete, and, therefore, deleted from the CACI. Additionally, if
an agency fails to accurately maintain and update its previously
submitted reports for CACI entry and report that information to the
department, that agency may be held liable and responsible for any
consequential action resulting from a violation of this section,
notwithstanding Section 11172. The department shall remain harmless
and will not be held as a party liable for any violation of the
agency's responsibility to notify the department to delete CACI
reports previously submitted as required in this section.
(b) The provisions of subdivision (b) of Section 11169 apply to
any information provided pursuant to this subdivision.
(b) (1)
(1) The Department of Justice shall
immediately notify an agency that submits a report pursuant to
Section 11169, or a prosecutor who requests notification, of any
information maintained pursuant to subdivision (a) that is relevant
to the known or suspected instance of child abuse or severe neglect
reported by the agency. The agency shall make that information
available to the reporting health care practitioner who is treating a
person reported as a possible victim of known or suspected child
abuse. The agency shall make that information available to the
reporting child custodian, Child Abuse Prevention and Treatment Act
(CAPTA) guardian ad litem appointed under Rule
5.662 of the California Rules of Court, or counsel appointed under
Section 317 or 318 of the Welfare and Institutions Code, or the
appropriate licensing agency, if he or she or the licensing agency is
handling or investigating a case of known or suspected child abuse
or severe neglect.
(2) When a report is made pursuant to subdivision (a) of Section
11166, or Section 11166.05, the investigating agency, upon completion
of the investigation or after there has been a final disposition in
the matter, shall inform the person required or authorized to report
of the results of the investigation and of any action the agency is
taking with regard to the child or family.
(3) The Department of Justice shall make information from the
CACI available to a law enforcement agency , county
welfare department, or county probation department that is
conducting a child abuse investigation relevant information
contained in the index only for investigative purposes
pursuant to paragraph (2) of subdivision (b) of Section 11169
.
(4) The department shall make available to the State Department of
Social Services, or to any county licensing agency that has
contracted with the state for the performance of licensing duties, or
to a tribal court or tribal child welfare agency of a tribe or
consortium of tribes that has entered into an agreement with the
state pursuant to Section 10553.1 of the Welfare and Institutions
Code, information regarding a known or suspected child abuser
maintained pursuant to this section and subdivision (a) of Section
11169 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, pursuant to Section 1522.1 or 1596.877 of the
Health and Safety Code, or Section 8714, 8802, 8912, or 9000 of the
Family Code.
(5) The Department of Justice shall make available to a 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, as
defined in Section 101 of the Welfare and Institutions Code,
information contained in the index regarding known or suspected child
abuse by the applicant.
(6) For purposes of child death review, the Department of Justice
shall make available to the chairperson, or the chairperson's
designee, for each county child death review team, or the State Child
Death Review Council, information for investigative purposes
only that is maintained in the Child Abuse Central
Index CACI pursuant to subdivision (a) relating
to the death of one or more children and any prior child abuse or
neglect investigation reports maintained involving the same victims,
siblings, or suspects. Local child death review teams may share any
relevant information regarding case reviews involving child death
with other child death review teams.
(7) The department shall make available to investigative agencies
or probation officers, or court investigators acting pursuant to
Section 1513 of the Probate Code, responsible for placing children or
assessing the possible placement of children pursuant to Article 6
(commencing with Section 300), Article 7 (commencing with Section
305), Article 10 (commencing with Section 360), or Article 14
(commencing with Section 601) of Chapter 2 of Part 1 of Division 2 of
the Welfare and Institutions Code, Article 2 (commencing with
Section 1510) or Article 3 (commencing with Section 1540) of Chapter
1 of Part 2 of Division 4 of the Probate Code, information regarding
a known or suspected child abuser contained in the index concerning
any adult residing in the home where the child may be placed, when
this information is requested for purposes of ensuring that the
placement is in the best interest of the child. Upon receipt
of relevant information concerning child abuse or neglect
investigation reports contained in the index from the Department of
Justice pursuant to this subdivision, the agency or court
investigator shall notify, in writing, the person listed in the Child
Abuse Central Index that he or she is in the index. The notification
shall include the name of the reporting agency and the date of the
report.
(8) The Department of Justice shall make available to a government
agency conducting a background investigation pursuant to Section
1031 of the Government Code of an applicant seeking employment as a
peace officer, as defined in Section 830, information regarding a
known or suspected child abuser maintained pursuant to this section
concerning the applicant.
(9) The Department of Justice shall make available to a county
child welfare agency or delegated county adoption agency, as defined
in Section 8515 of the Family Code, conducting a background
investigation, or a government agency conducting a background
investigation on behalf of one of those agencies, information
regarding a known or suspected child abuser maintained pursuant to
this section and subdivision (a) of Section 11169 concerning any
applicant seeking employment or volunteer status with the agency who,
in the course of his or her employment or volunteer work, will have
direct contact with children who are alleged to have been, are at
risk of, or have suffered, abuse or neglect.
(10) (A) Persons or agencies, as specified in subdivision (b), if
investigating a case of known or suspected child abuse or neglect, or
the State Department of Social Services or any county licensing
agency pursuant to paragraph (4), or a Court Appointed Special
Advocate (CASA) program conducting a background
investigation for employment or volunteer candidates pursuant to
paragraph (5), or an investigative agency, probation officer, or
court investigator responsible for placing children or assessing the
possible placement of children pursuant to paragraph (7), or a
government agency conducting a background investigation of an
applicant seeking employment as a peace officer pursuant to paragraph
(8), or a county child welfare agency or delegated county adoption
agency conducting a background investigation of an applicant seeking
employment or volunteer status who, in the course of his or her
employment or volunteer work, will have direct contact with children
who are alleged to have been, are at risk of, or have suffered, abuse
or neglect, pursuant to paragraph (9), to whom disclosure of any
information maintained pursuant to subdivision (a) is authorized, are
responsible for obtaining the original investigative report from the
reporting agency, and for drawing independent conclusions regarding
the quality of the evidence disclosed, and its sufficiency for making
decisions regarding investigation, prosecution, licensing, placement
of a child, employment or volunteer positions with a CASA program,
or employment as a peace officer.
(B) If Child Abuse Central Index CACI
information is requested by an agency for the temporary
placement of a child in an emergency situation pursuant to Article 7
(commencing with Section 305) of Chapter 2 of Part 1 of Division 2 of
the Welfare and Institutions Code, the department is exempt from the
requirements of Section 1798.18 of the Civil Code if compliance
would cause a delay in providing an expedited response to the agency'
s inquiry and if further delay in placement may be detrimental to the
child.
(11) (A) Whenever information contained in the Department of
Justice files is furnished as the result of an application for
employment or licensing or volunteer status pursuant to paragraph
(4), (5), (8), or (9), the Department of Justice may charge the
person or entity making the request a fee. The fee shall not exceed
the reasonable costs to the department of providing the information.
The only increase shall be at a rate not to exceed the legislatively
approved cost-of-living adjustment for the department. In no case
shall the fee exceed fifteen dollars ($15).
(B) All moneys received by the department pursuant to this section
to process trustline applications for purposes of Chapter 3.35
(commencing with Section 1596.60) of Division 2 of the Health and
Safety Code shall be deposited in a special account in the General
Fund that is hereby established and named the Department of Justice
Child Abuse Fund. Moneys in the fund shall be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred to process trustline automated child
abuse or neglect system checks pursuant to this section.
(C) All moneys, other than those described in subparagraph (B),
received by the department pursuant to this paragraph shall be
deposited in a special account in the General Fund which is hereby
created and named the Department of Justice Sexual Habitual Offender
Fund. The funds shall be available, upon appropriation by the
Legislature, for expenditure by the department to offset the costs
incurred pursuant to Chapter 9.5 (commencing with Section 13885) and
Chapter 10 (commencing with Section 13890) of Title 6 of Part 4, and
the DNA and Forensic Identification Data Base and Data Bank Act of
1998 (Chapter 6 (commencing with Section 295) of Title 9 of Part 1),
and for maintenance and improvements to the statewide Sexual Habitual
Offender Program and the California DNA offender identification file
(CAL-DNA) authorized by Chapter 9.5 (commencing with Section 13885)
of Title 6 of Part 4 and the DNA and Forensic Identification Data
Base and Data Bank Act of 1998 (Chapter 6 (commencing with Section
295) of Title 9 of Part 1).
(c) (1) The Department of Justice shall make
available to any agency responsible for placing children pursuant to
Article 7 (commencing with Section 305) of Chapter 2 of Part 1 of
Division 2 of the Welfare and Institutions Code, upon request,
relevant information concerning child abuse or neglect reports
contained in the index, when making a placement with a responsible
relative pursuant to Sections 281.5, 305, and 361.3 of the Welfare
and Institutions Code. Upon receipt of relevant information
concerning child abuse or neglect reports contained in the index from
the Department of Justice pursuant to this subdivision, the agency
shall also notify in writing the person listed in the Child
Abuse Central Index CACI that he or she is in
the index. The notification shall include the location of the
original investigative report and the submitting agency. The
notification shall be submitted to the person listed at the same time
that all other parties are notified of the information, and no later
than the actual judicial proceeding that determines placement.
If Child Abuse Central Index
(2) If information is requested
by an agency for the placement of a child with a responsible relative
in an emergency situation pursuant to Article 7 (commencing with
Section 305) of Chapter 2 of Part 1 of Division 2 of the Welfare and
Institutions Code, the department is exempt from the requirements of
Section 1798.18 of the Civil Code if compliance would cause a delay
in providing an expedited response to the child protective agency's
inquiry and if further delay in placement may be detrimental to the
child.
(d) The department shall make available any information maintained
pursuant to subdivision (a) to out-of-state law enforcement agencies
conducting investigations of known or suspected child abuse or
neglect only when an agency makes the request for information in
writing and on official letterhead, or as designated by the
department, identifying the suspected abuser or victim by name and
date of birth or approximate age. The request shall be signed by the
department supervisor of the requesting law enforcement agency. The
written requests shall cite the out-of-state statute or interstate
compact provision that requires that the information contained within
these reports shall be disclosed only to law enforcement,
prosecutorial entities, or multidisciplinary investigative teams, and
shall cite the safeguards in place to prevent unlawful disclosure of
any confidential information provided by the requesting state or the
applicable interstate compact provision.
(e) (1) The department shall make available to an out-of-state
agency, for purposes of approving a prospective foster or adoptive
parent in compliance with the Adam Walsh Child Protection and Safety
Act of 2006 ( P.L. Public Law 109-248),
information regarding a known or suspected child abuser maintained
pursuant to subdivision (a) concerning the prospective foster or
adoptive parent, and any other adult living in the home of the
prospective foster or adoptive parent. The department shall make that
information available only when the out-of-state agency makes the
request indicating that continual compliance will be maintained with
the requirement in paragraph (20) of subdivision (a) of Section 671
of Title 42 of the United States Code that requires the state to have
in place safeguards to prevent the unauthorized disclosure of
information in any child abuse and neglect registry maintained by the
state and prevent the information from being used for a purpose
other than the conducting of background checks in foster or adoption
placement cases.
(2) With respect to any information provided by the department in
response to the out-of-state agency's request, the out-of-state
agency is responsible for obtaining the original investigative report
from the reporting agency, and for drawing independent conclusions
regarding the quality of the evidence disclosed and its sufficiency
for making decisions regarding the approval of prospective foster or
adoptive parents.
(3) (A) Whenever information contained in the index is furnished
pursuant to this subdivision, the department shall charge the
out-of-state agency making the request a fee. The fee shall not
exceed the reasonable costs to the department of providing the
information. The only increase shall be at a rate not to exceed the
legislatively approved cost-of-living adjustment for the department.
In no case shall the fee exceed fifteen dollars ($15).
(B) All moneys received by the department pursuant to this
subdivision shall be deposited in the Department of Justice Child
Abuse Fund, established under subparagraph (B) of paragraph (11) of
subdivision (b). Moneys in the fund shall be available, upon
appropriation by the Legislature, for expenditure by the department
to offset the costs incurred to process requests for information
pursuant to this subdivision.
(f) (1) Any person may determine if he or she is listed in the
Child Abuse Central Index CACI by
making a request in writing to the Department of Justice. The request
shall be notarized and include the person's name, address, date of
birth, and either a social security number or a California
identification number. Upon receipt of a notarized request, the
Department of Justice shall make available to the requesting person
information identifying the date of the report and the submitting
agency. The requesting person is responsible for obtaining the
investigative report from the submitting agency pursuant to paragraph
(11) of subdivision (b) of Section 11167.5.
(2) No person or agency shall require or request another person to
furnish a copy of a record concerning himself or herself, or
notification that a record concerning himself or herself exists or
does not exist, pursuant to paragraph (1).
(g) If a person is listed in the Child Abuse Central
Index CACI only as a victim of child abuse or
neglect, and that person is 18 years of age or older, that person may
have his or her name removed from the index by making a written
request to the Department of Justice. The request shall be notarized
and include the person's name, address, social security number, and
date of birth.
SEC. 3. If the Commission on State Mandates
determines that this act contains costs mandated by the state,
reimbursement to local agencies and school districts for those costs
shall be made pursuant to Part 7 (commencing with Section 17500) of
Division 4 of Title 2 of the Government Code.