BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   AB 717|
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                                 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 
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          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 

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          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).)

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          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:

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             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


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          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.  


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          ". . .  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, 

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            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

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