BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 652 (Ammiano)
As Introduced: February 21, 2013
Hearing date: June 4, 2013
Penal Code
AA:jr
MANDATORY CHILD ABUSE AND NEGLECT REPORTING:
HOMELESS CHILDREN
HISTORY
Source: Author
Prior Legislation: None
Support: California Coalition for Youth; California Federation
of Teachers; California Teachers
Association; National Association for the Education of Homeless
Children and Youth; National
Association of Social Workers, California Chapter
Opposition:None known
Assembly Floor Vote: Ayes 51 - Noes 23
KEY ISSUE
SHOULD THE FACT THAT A CHILD IS HOMELESS SPECIFICALLY NOT, IN AND OF
ITSELF, BE SUFFICIENT TO TRIGGER THE MANDATORY CHILD ABUSE OR
NEGLECT REPORTING LAWS?
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AB 652 (Ammiano)
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PURPOSE
The purpose of this bill is to provide that the fact that a
child is homeless or an "unaccompanied minor," as specified, is
not, in and of itself, a sufficient basis for triggering the
mandatory child abuse or neglect reporting laws.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code § 11164.)
Current law requires "mandated reporters" to make reports of
suspected child abuse or neglect, as specified. (Penal Code §
11165.9.)
Under current law the term "child abuse or neglect" for purposes
of CANRA "includes physical injury inflicted by other than
accidental means upon a child by another person, sexual abuse as
defined . . . , neglect as defined . . . , the willful harming
or injuring of a child or the endangering of the person or
health of a child, as defined . . . , and unlawful corporal
punishment or injury as defined . . . . '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 provides that, except as specified, "a mandated
reporter shall 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(a).)
Current law enumerates 43 categories of persons who are mandated
child abuse and neglect reporters. (Penal Code § 11165.7 (a).)
Except as specified, current law provides that "volunteers of
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public or private organizations whose duties require direct
contact with and supervision of children are not mandated
reporters . . . ." (Penal Code § 11165.7(b).)
This bill would provide that for the purposes of CANRA, "the
fact that a child is homeless or is classified as an
unaccompanied minor, as defined in Section 11434a of the federal
McKinney-Vento Homeless Assistance Act (42 U.S.C. Sec. 11301 et
seq.<1>), is not, in and of itself, a sufficient basis for
reporting child abuse or neglect."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
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<1> This federal statute includes the following definition:
"(2) The term "homeless children and youths"-- (A) means
individuals who lack a fixed, regular, and adequate nighttime
residence (within the meaning of section 103(a)(1)) [42 USCS §
11302(a)(1)]; and (B) includes-- (i) children and youths who
are sharing the housing of other persons due to loss of housing,
economic hardship, or a similar reason; are living in motels,
hotels, trailer parks, or camping grounds due to the lack of
alternative adequate accommodations; are living in emergency or
transitional shelters; are abandoned in hospitals; or are
awaiting foster care placement; (ii) children and youths who
have a primary nighttime residence that is a public or private
place not designed for or ordinarily used as a regular sleeping
accommodation for human beings (within the meaning of section
103(a)(2)(C)) [42 USCS § 11302(a)(2)(C)]; (iii) children and
youths who are living in cars, parks, public spaces, abandoned
buildings, substandard housing, bus or train stations, or
similar settings; and (iv) migratory children (as such term is
defined in section 1309 of the Elementary and Secondary
Education Act of 1965 [20 USCS § 6399]) who qualify as homeless
for the purposes of this subtitle [42 USCS §§ 11431 et seq.]
because the children are living in circumstances described in
clauses (i) through (iii)." (42 USCS § 11434a.)
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relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
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the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
The author states:
Studies have shown that only 1 in 12 unaccompanied
youth seek services, like shelter, health care, food,
education, employment, etc., largely due to the fear
of being referred to law enforcement or child welfare.
In California, educators make more referrals of
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suspected abuse and neglect than any other group of
mandated reporters in the state. On average, less than
16% of those reports are substantiated, meaning
evidence of abuse or neglect was found. This data
holds true nationally, where 77% of the abuse and
neglect referrals made by education personnel are
determined to be without evidence to support a finding
of abuse or neglect.
It is hard to imagine a youth desiring to be taken
into police custody or returned by police to a home
the youth has fled. Many of the unaccompanied minors
on the street are foster youth that have fled the
child welfare system and feel the system has failed
them.
Parents who fear their children have been abducted or
want their children to come home can report a youth as
missing. Mandated reporters can check the missing
children's database (for example, by contacting the
National Center for Missing and Exploited Children) to
see if a youth has been reported, and if so, report
the youth to child welfare or law enforcement. That
agency can then investigate the situation and protect
the safety of the youth. In fact, with regards to
schools enrolling missing children, California
Education Code 49068.6 requires law enforcement to
notice schools of missing children and for schools to
flag student files in the event the students attempt
to reenroll at another school.
AB 652 is especially important to the many LGBT
homeless youth in California, who have fled their
families because of discrimination and intolerance,
and do not wish to return to their homes. Many of
these youth are much better served by our established
homeless youth programs that assist them in achieving
educational goals and self-sufficiency.
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2. Background; Support
This bill may clarify what already is regarded to be the law. A
handbook produced by the California Department of Social
Services advises the following to mandated reporters with
respect to homeless youth:
Questions regarding neglect can be asked to assess if
basic needs are being met. (In questioning, remember
that homelessness does not necessarily mean neglect.)
Some questions to ask include:
Do you have food in your house? What kind of food
do you have?
Do you have a coat to wear? Does someone wash your
clothes for you?
Do you have electricity?<2>
This bill appears to be consistent with a statute in at least
one other state. Washington state law provides, "Poverty,
homelessness, or exposure to domestic violence as defined in RCW
26.50.010 that is perpetrated against someone other than the
child does not constitute negligent treatment or maltreatment in
and of itself."<3>
The National Association for the Education of Homeless Children
and Youth, which supports this bill, submits that mandatory
reporting laws can inadvertently discourage homeless youth for
seeking help. They state in part:
Young people often do not seek services for fear of
being reported to child welfare, potentially being
returned to an abusive home, or being placed in foster
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<2> The California Child Abuse & Neglect Reporting Law: Issues
and Answers for Mandated Reporters (California Department of
Social Services, Office of Child Abuse Prevention) (emphasis
added); (http://www.cdss.ca.gov/ cdssweb/entres
/forms/English/PUB132.pdf.)
<3> RCW 26.44.020.
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care. Many studies have found that unaccompanied
homeless youth tend to distrust adults and rarely
initiate contact with service providers, particularly
child welfare. The tragic irony is that youth remain
in unsafe, unsanitary and unstable situations on the
streets, trading sex for shelter, or in other horrific
circumstances instead of seeking help, all because
they want to remain "under the radar." Keeping youth
safe requires attracting them to schools and
services-not frightening them away.
The definitions of abuse and neglect in California law
open the door to confusion about whether homeless
youth on their own should be referred to child
welfare. While the intent of these laws is to keep
youth safe, the result is that youth who need help are
afraid to seek it. Data indicate that of about 90,000
educator referrals of youth to child welfare in
California, only 15% are substantiated and actually
result in services to the youth. Even for those youth
whose cases are investigated and who are brought into
state's custody, the results are dismal and would not
appear to justify the barrier reporting presents. In
short, the reporting requirement erects a barrier with
very little chance of the youth gaining any benefit
from the referral.
Educators and youth service providers know that young
people often do not seek services for fear of being
reported to child welfare. Over the past six months,
NAEHCY surveyed school district homeless liaisons and
homeless youth service providers in San Diego and
Sacramento about barriers to youth receiving services.
The number one barrier to homeless youth under 18
seeking services was: "Youth are afraid to seek
services due to fears of being reported to police or
CPS (foster care)." A draft report from Massachusetts
Appleseed Center for Law and Justice shares similar
results from a survey of service providers in that
state: Nearly 85% of the providers agreed that fear of
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being reported to the state prevents youth from coming
forward to access needed services.
More importantly, young people themselves tell us that
mandated reporting is a barrier to their seeking help.
Members of the California Council of Youth Relations
(CCYR) Housing Advisory Group informed us that
reporting creates a barrier to youth seeking services.
NAEHCY's own group of youth advisors repeatedly
emphasizes that mandated reporting of homeless teens
drives youth away from services and into more
dangerous situations.
The author and/or members of the Committee may wish to discuss
the concerns that the mandatory reporting laws lack clarity with
respect to minors who face homelessness, and if this bill
addresses those concerns while maintaining the core purposes of
the mandatory reporting laws.
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