BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 717| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 717 Author: Ammiano (D) Amended: 8/30/11 in Senate Vote: 21 SENATE PUBLIC SAFETY COMMITTEE : 6-0, 6/21/11 AYES: Hancock, Anderson, Calderon, Liu, Price, Steinberg NO VOTE RECORDED: Harman SENATE APPROPRIATIONS COMMITTEE : 9-0, 8/25/11 AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley, Price, Runner, Steinberg ASSEMBLY FLOOR : 75-0, 5/26/11 (Consent) - See last page for vote SUBJECT : Child Abuse Central Index: due process SOURCE : Author DIGEST : This bill makes several changes to the laws concerning the Child Abuse Central Index (Child Abuse Central Index) maintained by the Department of Justice (DOJ). Specifically, this bill: (1) provides that reports to be forwarded to the DOJ for reporting in the CACI to include only those determined to be "substantiated," rather than those "determined not to be unfounded," as specified; (2) provides that after January 1, 2012, a police department or sheriff's department shall no longer forward written reports to DOJ of investigations of known or CONTINUED AB 717 Page 2 suspected child abuse or severe neglect; (3) allows any person listed on the CACI a right to a hearing before the agency that requested his or her inclusion in the CACI to challenge his/her listing, as specified; (4) requires a reporting agency to notify the DOJ when a hearing results in a finding that a CACI listing was based on a report that was not substantiated, and requires the DOJ to remove the person's name from the CACI when so notified; (5) provides that only substantiated reports be filed in the CACI, and all other determinations shall be removed from the CACI; and (6) requires any person listed on the CACI who has reached 100 years of age to have his or her listing removed. ANALYSIS : Existing law establishes the Child Abuse and Neglect Reporting Act (CANRA), which generally is intended to protect children from abuse and neglect. (Penal Code Section 11164.) Existing law requires the Department of Justice (DOJ) to maintain an index of all reports of child abuse and severe neglect (CACI) submitted by specified reporting agencies. CACI is required by statute to be continually updated and not contain any reports determined to be unfounded. (Penal Code Section 11170(a)(1).) Existing law 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).) Existing law requires DOJ to "immediately notify an agency" that submits a mandated child abuse or neglect report, or a district attorney who requests notification, of any information in CACI that is relevant to the known or suspected instance of child abuse or severe neglect reported by the agency. Existing law further requires that agency to make that information available to additional persons, as specified. (Penal Code Section 11170(b).) Existing law requires police departments, sheriff's departments, probation departments if so authorized by the CONTINUED AB 717 Page 3 county, and county welfare departments to forward to DOJ a report of every case of suspected child abuse or neglect which is determined not to be unfounded, as defined. (Penal Code Section 11169(a).) Existing law 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).) Existing law defines the following types of suspected child abuse or neglect reports: An "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. A "substantiated report" is a report that is determined by the investigator based on some credible evidence to constitute child abuse or neglect, as defined. An "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.) Existing law requires at the time a reporting agency forwards a report of suspected child abuse or neglect to the DOJ, the agency must notify the known or suspected child abuser that he/she has been reported to CACI. (Penal Code Section 11169(b).) Existing law provides that any person may determine if he/she is listed in the CACI by making a request in writing to the DOJ, as specified. DOJ is required to 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, as specified. (Penal Code Section 11170(f).) CONTINUED AB 717 Page 4 Existing law allows persons listed in CACI to obtain the report of suspected abuse and information contained within his/her CACI listing, as specified. (Penal Code Section 11167.5(b)(11).) Existing law provides that if a person is listed in the 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/her name removed from the index by making a written request to DOJ. (Penal Code Section 11170(g).) This bill makes the following revisions to CACI: Provide that reports to be forwarded to DOJ for inclusion in CACI are those determined to be "substantiated," instead of those "determined not to be unfounded," as specified. Provide that, on and after January 1, 2012, a police department or sheriff's department shall no longer forward to DOJ a report in writing of any case it investigates of known or suspected child abuse or severe neglect. Provide that sheriffs and police departments continue to retain child abuse or neglect investigative reports that result or resulted in a CACI listing as is now required under existing law, as specified. Provide that only substantiated reports go into CACI, and that any other report would be removed, instead of inconclusive or unsubstantiated reports being deleted from CACI after 10 years, as specified; Extend existing notice requirements to apply where DOJ forwards CACI information, as specified; Clarify that CACI information shall be shared with Child Death Review Teams for investigative purposes only, as specified; Provide the following with respect to the right to a due process hearing: CONTINUED AB 717 Page 5 o Subject to subdivision (e), any person who is listed on the CACI has the right to a hearing before the agency that requested his/her inclusion in the CACI to challenge his/her listing on the CACI. The hearing shall satisfy due process requirements. It is the intent of the Legislature that the hearing provided for by this subdivision shall not be construed to be inconsistent with hearing proceedings available to persons who have been listed on the CACI prior to the enactment of the act that added this subdivision. o A hearing requested pursuant to subdivision (d) shall be denied when a court of competent jurisdiction has determined that suspected child abuse or neglect has occurred, or when the allegation of child abuse or neglect resulting in the referral to the CACI is pending before the court. A person who is listed on the CACI and has been denied a hearing pursuant to this subdivision has a right to a hearing pursuant to subdivision (d) only if the court's jurisdiction has terminated, the court has not made a finding concerning whether the suspected child abuse or neglect was substantiated, and a hearing has not previously been provided to the listed person pursuant to subdivision (d). Provide that if, "after a due process hearing pursuant to this section, it is determined the person's CACI listing was based on a report that was not substantiated, the agency shall notify the DOJ of that result and the department shall remove that person's name from the CACI"; and Provide that any person listed in the CACI who has reached 100 years of age shall have his/her listing removed from the CACI. This bill is double-jointed to AB 212 (Beall). FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: Yes CONTINUED AB 717 Page 6 According to the Senate Appropriations Committee: Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund CACI hearings Unknown; potentially significant General and notifications state reimbursable costs for additional hearings Removal of requirement Significant state-reimbursable cost- General to report to DOJ savings to local reporting agencies CACI updates Minor, absorbable costs to the DOJ General Litigation impact Unknown; likely significant ongoing General/ future cost-savings, potentially in Local the millions of dollars, to state and local agencies SUPPORT : (Verified 8/30/11) California State Association of Counties Child Abuse Prevention Council of Contra Costa County Child and Family Protection Association Children's Law Center of Los Angeles County of Orange County Welfare Directors Association ARGUMENTS IN SUPPORT : The author states in part, "AB 717 is a response to several court decisions, which collectively state that the Child Abuse Central Index (CACI) is unconstitutional because it does not notice all people of their inclusion in CACI and offer a due process hearing or give people listed in CACI with unsubstantiated cases of abuse or neglect a procedure to have their names removed from the database. CONTINUED AB 717 Page 7 ". . . CACI is predominantly used by regulatory agencies like 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, and other licensing agencies. In fact, 98% of all CACI search requests are regulatory in nature for the purpose of foster care, child care, employment, etc. Many other states, like Connecticut, Illinois, and New York, provide a process to challenge your listing in the CACI. California does not. "A federal appeals court ruled that Los Angeles County should pay damages to a couple because they are still listed in CACI, despite the fact that a state court had ruled that the allegations of abuse were not true and the couple was factually innocent. Later the U.S. Supreme Court intervened to hear Los Angeles County's claim that the State of California is at fault because it does not provide a procedure for the couple to have their names removed from CACI. This is just one example of the many court cases related to CACI inclusion over the years that have cost the Department of Justice and Department of Social Services more than 2 million dollars in attorney fees alone, not including Attorney General fees or DSS Staff Counsel costs. "AB 717 would make the Child Abuse Central Index (CACI) constitutional by only including the reports from local agencies of investigations that are substantiated. Agencies that have previously filed substantiated reports that have been found unsubstantiated shall notify DOJ for removal from CACI. Law enforcement agencies would be no longer required to report investigations to CACI. ASSEMBLY FLOOR : 75-0, 5/26/11 AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Carter, Chesbro, Conway, Cook, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, CONTINUED AB 717 Page 8 Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Campos, Cedillo, Davis, Gorell, Jones RJG:do 8/29/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED