BILL ANALYSIS �
AB 790
Page 1
Date of Hearing: April 2, 2013
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 790 (Gomez) - As Introduced: February 21, 2013
SUMMARY : Deletes a provision of law states that when two or
more mandated reporters have joint knowledge of suspected child
abuse or neglect, they may select a member of the team by mutual
agreement to make and sign a single report.
EXISTING LAW :
1)Defines "mandated reporter" under Child Abuse and Neglect
Reporting Act (CANRA) as any of the following: a teacher; an
instructional aide; a teacher's aide or teacher's assistant
employed by any public or private school; a classified
employee of any public school; an administrative officer or
supervisor of child welfare and attendance, or a certificated
pupil personnel employee of any public or private school; an
administrator of a public or private day camp; an
administrator or employee of a public or private youth center,
youth recreation program, or youth organization; an
administrator or employee of a public or private organization
whose duties require direct contact and supervision of
children; any employee of a county office of education or the
State Department of Education, whose duties bring the employee
into contact with children on a regular basis; a licensee, an
administrator, or an employee of a licensed community care or
child day care facility; a Head Start program teacher; a
licensing worker or licensing evaluator employed by a
licensing agency as defined; a public assistance worker; an
employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and
personnel of residential care facilities; a social worker,
probation officer, or parole officer; an employee of a school
district police or security department; any person who is an
administrator or presenter of, or a counselor in, a child
abuse prevention program in any public or private school; a
district attorney investigator, inspector, or local child
support agency caseworker unless the investigator, inspector,
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or caseworker is working with an attorney appointed to
represent a minor; a peace officer, as defined, who is not
otherwise described in this section; a firefighter, except for
volunteer firefighters; a physician and surgeon, psychiatrist,
psychologist, dentist, resident, intern, podiatrist,
chiropractor, licensed nurse, dental hygienist, optometrist,
marriage and family therapist, clinical social worker,
professional clinical counselor, or any other person who is
currently licensed as a health care professional as specified;
any emergency medical technician I or II, paramedic, or other
person certified to provide emergency medical services; a
registered psychological assistant; a marriage and family
therapist trainee, as defined; a registered unlicensed
marriage and family therapist intern; a state or county public
health employee who treats a minor for venereal disease or any
other condition; a coroner; a medical examiner, or any other
person who performs autopsies; a commercial film and
photographic print processor, as defined; a child visitation
monitor, as defined; an animal control officer or humane
society officer, as defined; a clergy member, as defined; any
custodian of records of a clergy member, as specified; any
employee of any police department, county sheriff's
department, county probation department, or county welfare
department; an employee or volunteer of a Court Appointed
Special Advocate program, as defined; any custodial officer,
as defined; any person providing services to a minor child, as
specified; an alcohol and drug counselor, as defined; a
clinical counselor trainee, as defined; and a registered
clinical counselor intern. [Penal Code Section 11165.7(a).]
2)Provides that when two or more persons, who are required to
report, jointly have knowledge of a known or suspected
instance of child abuse or neglect, and when there is
agreement among them, the telephone report may be made by a
member of the team selected by mutual agreement and a single
report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make
the report. [Penal Code Section 11166(h).]
3)Provides that volunteers of public or private organizations,
except a volunteer of a Court Appointed Special Advocate
program, whose duties require direct contact with and
supervision of children are not mandated reporters but are
encouraged to obtain training in the identification and
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reporting of child abuse and neglect and are further
encouraged to report known or suspected instances of child
abuse or neglect to a specified agency. [Penal Code Section
11165.7(b).]
4)Strongly encourages employers to provide their employees who
are mandated reporters with training in the duties imposed by
CANRA. This training shall include training in child abuse
and neglect identification and training in child abuse and
neglect reporting. Whether or not employers provide their
employees with training in child abuse and neglect
identification and reporting, the employers shall provide
their employees who are mandated reporters with a statement
that informs the employee that he or she is a mandated
reporter and informs the employee of his or her reporting
obligations and of his or her confidentiality rights. [Penal
Code Section 11165.7(c).]
5)Encourages public and private organizations to provide their
volunteers whose duties require direct contact with and
supervision of children with training in the identification
and reporting of child abuse and neglect. [Penal Code Section
11165.7(f).]
6)Requires a mandated reporter to make a report to a specified
agency 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. The mandated reporter shall
make an initial report to the agency immediately or as soon as
is practicably possible by telephone and the mandated reporter
shall prepare and send, fax, or electronically transmit a
written follow-up report thereof within 36 hours of receiving
the information concerning the incident. The mandated
reporter may include with the report any nonprivileged
documentary evidence the mandated reporter possesses relating
to the incident. [Penal Code Section 11166(a).]
7)Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by
this section is guilty of a misdemeanor punishable by up to
six months confinement in a county jail or by a fine of one
thousand dollars ($1,000) or by both that imprisonment and
fine. If a mandated reporter intentionally conceals his or
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her failure to report an incident known by the mandated
reporter to be abuse or severe neglect under this section, the
failure to report is a continuing offense until a specified
agency discovers the offense. [Penal Code Section 11166(c).]
8)Defines "child" under CANRA to mean person under the age of 18
years. (Penal Code Section 11165.)
9)Defines "child abuse or neglect" under CANRA to include
physical injury or death 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 Section
11165.6.)
10)Requires any person who reasonably believes that he or she
has observed the commission of any of the following offenses
where the victim is a child under the age of 14 years shall
notify a peace officer:
a) Murder;
b) Rape; and,
c) Any lewd or lascivious act upon or with the body, or any
part or member thereof, of a child with the intent of
arousing, appealing to, or gratifying the lust, passions,
or sexual desires of that person or the child by use of
force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person.
[Penal Code Section 152.3(a).]
11)States that the failure to notify as required pursuant to the
provisions above is a misdemeanor and is punishable by a fine
of not more than $1,500, by imprisonment in a county jail for
not more than six months, or by both that fine and
imprisonment. [Penal Code Section 152.3(c).]
12)Excludes from the reporting requirements above the following:
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a) A person who is related to either the victim or the
offender, including a husband, wife, parent, child,
brother, sister, grandparent, grandchild, or other person
related by consanguinity or affinity;
b) A person who fails to report based on a reasonable
mistake of fact; and,
c) A person who fails to report based on a reasonable fear
for his or her own safety or for the safety of his or her
family. [Penal Code Section 152.3(e).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "There is
currently confusion concerning the duty of mandated reporters
to report child abuse when more than one mandated reporter
knows of the abuse. Current law permits them to agree on
which one of them will make the report, which creates the
potential of a report in fact not being made.
2)Recent Case : "Because Brentwood school staff and
administrators ignored state reporting requirements after a
teacher pulled a 5-year-old student from his chair and kicked
him as he lay on the ground, his parents unwittingly sent
their fearful son back into his abuser's classroom.
"Teacher Dina Holder eventually pleaded no contest to
misdemeanor child abuse. But left to district personnel, the
case might never have reached the legal system.
"Staff members reported the incident up the chain of command,
but failed to notify outside authorities. Top administrators
wrongly decided to first investigate rather than alerting
police or child welfare workers trained to probe criminal
matters. Assistant Superintendent Margaret Kruse regarded the
case an employee discipline matter and said she never
considered whether a crime was committed.
"It was the student's upset parents who notified police when
they finally learned of the incident a week after it occurred.
Only then did they understand why their special-needs child
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had a purple lower-back bruise and was saying "no, no" as they
approached school the day after the abuse.
"Some 2 years later, Superintendent Merrill Grant on
Wednesday defended the notification delay, saying the
principal needed to first establish the veracity of the
allegations.
"That's wrong, says attorney William Grimm of the National
Center for Youth Law in Oakland. Unfortunately, it's a common
misconception among educators. 'They think somehow they need
to investigate, to conduct some sort of inquiry. People need
to be trained to understand that's not your job.'
"A San Jose principal, who botched her own investigation of a
sexual-abuse incident involving a teacher, was convicted last
year of a misdemeanor for failing to alert authorities. In
Moraga, the district faces multi-million-dollar lawsuits filed
by three former students who say administrators failed to
report complaints of teachers who sexually abused them.
"The law is clear. Each school worker must 'immediately'
report knowledge of "any reasonable suspicion" of abuse. If
two or more people know, they may agree to designate one to
notify authorities.
"The Brentwood procedural breakdown is revealed in hundreds of
pages of deposition transcripts from the parents' civil
lawsuit against the district, Holder and Principal Lauri
James. This month's settlement forces the district to pay
$950,000 and finally removes Holder from the classroom.
"From the onset, this case clearly met the 'reasonable
suspicion' notification standard. Instructional aides directly
witnessed the abuse. However, they misunderstood the law and
believed they only had to notify superiors.
"That set off a five-person communication chain, in which no
one called authorities, before word reached James. One veteran
teacher directed witnesses to take their concerns back to the
abuser.
"Rather than calling police or county Child Protective
Services, James launched her own investigation. She had never
dealt with such a situation before and didn't know whether
Holder's actions, if true, might be criminal.
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"While tied up in meetings, James directed the school
psychologist to collect written statements from witnesses. But
James didn't talk to them before she contacted the abuser.
"The abuse occurred on a Tuesday. James learned about it on
Wednesday afternoon. It wasn't until Friday night that she and
Kruse determined they should notify Child Protective Services.
"What happened next depends on whom you believe. James
testified that a CPS worker told her that the district should
handle the matter internally.
"'That's not something we do,' CPS spokeswoman Lauren Brosnan
said Thursday. She couldn't discuss this case because of
confidentiality rules. But she said licensed social workers
who take the calls about abuse are well-trained. The agency
handles allegations of abuse within families and refers other
reports to police, she said.
"James' account is more troubling because the school
psychologist, Samantha Sheldon, gave a different version. She
testified that James told her she was instructed by CPS to
call police. That never happened.
"Ironically, James reprimanded some of her staff, not for
failing to properly report the incident to authorities, but
for failing to report it to her. 'Under SOP (standing
operation procedure),' she testified, 'anything that you see
or hear out of the ordinary needs to be reported to me.'
"Clearly, remedial training is urgently needed." - Contra
Costa Times, by Daniel Borenstein, columnist.
3)Penal Code Section 152.3 : Under Penal Code Section 152.3, any
person who reasonably believes that he or she has observed the
commission of rape or a forcible lewd or lascivious act upon a
child under the age of 14, shall notify a peace officer.
Failure to notify a peace officer is punishable by a fine of
not more than $1,500, by imprisonment in a county jail for not
more than six months, or by both that fine and imprisonment.
Regardless of whether an individual is deemed a mandated
reporter for the purposes of CANRA, any person who witnesses
rape or a forcible lewd or lascivious act upon a child under
the age of 14 is required under current law to notify a peace
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officer, and faces criminal prosecution if he or she fails to
do so.
4)Rise in Incidents of Child Sex Abuse ? According to a recent
news article, "The overwhelming media coverage after the
arrest of Miramonte Elementary School teacher Mark Berndt for
allegedly spoon-feeding his semen to blindfolded children has
intensified discussion among school officials, parents and
children about abuse. But whether more children are being
abused or more abusers are being caught is difficult to say.
Law enforcement officials stressed that they don't believe
that more abuse is occurring. Rather, the Miramonte episode
has sparked some people to come forward and others to be more
watchful, they say. Los Angeles Police Capt. Fabian E.
Lizarraga, who oversees child sex crime investigations, said
the department has seen an increase in allegations of 'child
annoyance' more than of more serious sexual misconduct."
[Winton, Blume, and Allen, Spate of arrests shows rise in
reporting, not in abuse, police say, L.A. Times (Jan. 24,
2012).]
A recent Sacramento Bee article named several coaches, pastors
and school administrators in the Sacramento region who have
been arrested or charged with molesting children. The article
notes, however, that crime statistics indicate a decline in
sex offenses against children. "Through November, Sacramento
police wrote 61 crime reports involving sex offenses against
children, down 25 percent from the previous year, police data
show. Officers took another 118 informal reports of sex
offenses against minors, down 20 percent from the prior year.
The Sacramento County Sheriff's Department also showed a
decline in child sex offenses through the first 11 months of
2011, but the drop was slight." [Breaton, Mentors accused of
child molestation betray our trust, Sacramento Bee (Jan. 15,
2012).]
5)Argument in Support : According to the California Police
Chiefs Association , "The underlying police of Penal Code
Section 11166 is intended to guarantee that all cases of
suspected child abuse or neglect are reported to a Child
Protective Agency by "Mandated Reporters." Mandated Reporters
are defined in Penal Code Section 11165.7 with forty (40)
distinct occupations listed. The statutes are clear in their
intent to protect children and put the responsibility to
report suspected child abuse or neglect on those that have
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contact with children during the normal course of their
occupations. However, there is conflicting language within
the statute that provides an unnecessary opportunity for
suspected child abuse or neglect to go unreported, and might
even provide the opportunity for someone in complicity with
the suspected child abuse or neglect to hide their involvement
or the involvement of others.
"Penal Code Section 11166(a) statutorily requires every
mandated reporter who becomes aware of suspected child abuse
or neglect to 'make an initial report to the agency
immediately or as soon as is practicably possible by telephone
and the mandated reporter shall send, fax, or electronically
transmit a written follow up report thereof within 36 hours of
receiving the information concerning the incident.' While the
wording of this section may result in multiple reports of the
same suspected child abuse or neglect, it ensures that all
parties with knowledge will report what they know about the
suspected child abuse or neglect. Furthermore, multiple
reports of the same suspected abuse or neglect do not create
problems for Child Protective Agency, and actually provides an
accurate list of all witnesses to be interviewed by the
investigating agency, and may provide information from
different perspectives that provide better clarity and add
value to the investigation. The requirement to make the
report immediately also enhances the opportunity for a child
abuse victim to get protection without delay."
6)Argument in Opposition: According to the California Public
Defenders Association , "This legislation is clearly well
intentioned, but we fear serious unintended consequences may
arise if this bill is passed into law. AB 790 seems to
presume, without any evidence based research, that problems
inherent to the existing mandated reporter requirements may be
ameliorated via duplicative reporting. In instances where
child abuse or neglect has gone unreported by a mandated
reporter, is there evidence to suggest that had an alternate
mandated reporter also been obligated to file a report, such
abuse or neglect would have been prevented? We believe a
better approach would be to address the underlying problems
regarding mandated reporters who neglect to report-why they
neglect this duty, and how that may better be prevented; and,
most importantly, how better to protect children from abuse
and neglect.
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"Under this proposed legislation a doctor, nurse, and social
worker who all learn simultaneously in the doctor's office or
emergency room that a child has been abuse would now be
required to make independent reports to law enforcement lest
they be charged with a misdemeanor. Not only is this a waste
of scarce public resources, but we are concerned that
discrepancies in duplicate reports have unintended
consequences, both to the mandated reporters and the children
about whom they are reporting."
7)Prior Legislation :
a) AB 2380 (Lowenthal), Chapter 123, Statutes of 2010,
clarified 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.
b) AB 673 (Hayashi), Chapter 393, Statutes of 2007, added
death by other than accidental means to the definition of
"child abuse and neglect," and clarified that a mandated
reporter not acting in his or her private capacity or in
the course and scope of his or her employment may report
instances of known or suspected child abuse.
c) AB 525 (Chu), Chapter 701, Statutes of 2006, expanded
the definition of "child abuse and neglect" to include
instances in which a child suffers or is at substantial
risk of suffering serious emotional damage.
d) AB 1241 (Rod Pacheco), Chapter 916, Statutes of 2000,
expanded the list of mandated reporters and training
requirements under CANRA, and required that specified
additional information be included in a report of suspected
abuse or neglect.
e) SB 646 (Watson), Chapter 1444, Statutes of 1987,
established CANRA, which requires specified persons who
have knowledge of or observe a child in their professional
capacity or within the scope of their employment, whom the
person knows or reasonably suspects has been the victim of
child abuse to report the known or suspected instance of
child abuse to a child protective agency, as defined.
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REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Police Chiefs Association
County Welfare Directors Association of California
Opposition
California Public Defenders Association
California Association of Marriage and Family Therapists
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744