BILL NUMBER: AB 2151 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Pacheco
FEBRUARY 19, 1998
An act to amend Sections 11165.1, 11165.6, 11165.7, 11165.16,
11166, 11166.3, 11167, 11167.5, 11168, 11170, 11171, 11171.5, 11172,
11174.1, and 11174.3 of, to add Section 11173 to, to repeal Section
11165.8 of, and to repeal and add Sections 11165.9 and 11166.5 to,
the Penal Code, relating to child abuse reporting.
LEGISLATIVE COUNSEL'S DIGEST
AB 2151, as introduced, Pacheco. Child Abuse and Neglect
Reporting Act.
Existing law establishes the Child Abuse and Neglect Reporting Act
(CANRA) which requires any mandated reporter, as defined, who has
knowledge of or observes a child, in his or her professional capacity
or within the scope of his or her employment, whom he or she 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.
This bill would instead require that mandated reporters report
child abuse or neglect whenever he or she has information that would
tend to lead a reasonable person to suspect that abuse or neglect
might have occurred.
Existing law under CANRA, includes the definition of child abuse
to include the sexual exploitation of a child, which is defined in
part to mean conduct involving matter depicting a minor engaged in
obscene sexual conduct, or encouraging a child to engage in obscene
sexual conduct.
This bill would change the definition of sexual exploitation by
omitting the requirement that the sexual act be obscene. By
expanding the definition of sexual abuse, this bill would increase
the reporting duties of local officials and would impose a
state-mandated local program.
Existing law under CANRA defines child care custodians, and
requires any such person, and other specified persons, to report an
instance of child abuse under specified circumstances.
The bill would change the definition of specified childcare
custodians by deleting the training requirement for instructional
aides, teacher's aides, or teacher's assistants in any public or
private school, as a condition of being a mandated reporter. The
bill would also delete administrators and supervisors of schools, day
camps, youth centers or programs, organizations, and agencies, as
specified, from the definition of a mandated reporter. By expanding
the definition of a mandated reporter, this bill would increase the
reporting duties of local officials and would impose a state-mandated
local program.
Existing law under CANRA, requires that reports of child abuse be
made to a child protective agency which is defined to include a
police or sheriff's department, a county probation department, or a
county welfare department.
This bill would require that any of the above agencies accept a
report of suspected child abuse or neglect whether made by a mandated
reporter or another person. The bill also would authorize a county
to establish a new agency or designate an existing agency to receive
the reports of child abuse and neglect, as specified.
Existing law under CANRA provides that the reporting duties are
individual.
This bill would provide that reporting information to an employer,
supervisor, school principal, or other specified person is not a
substitute for making a mandated report as required.
Existing law under CANRA requires any person who enters into
employment in a position that would make that person a mandated
reporter, as specified, to sign a statement as a condition of
employment. The statement advises the mandated reporter of the
provisions of CANRA. Persons issued a state license or certificate
to engage in a profession, the members of which are required to
report under CANRA are also required to sign a similar statement. In
addition, the act requires any child visitation monitor, as defined,
to receive training in the duties imposed by the act and is required
to sign the above mentioned statement and a statement of training
completion.
This bill would require any mandated reporter to complete at least
2 hours of training, as specified, in recognizing and reporting
child abuse and neglect, and the obligations of reporting under the
act. The bill would also require that the training be completed
within a specified period of time, and that the mandated reporter
renew his or her training every 5 years. The bill would make
noncompliance with the training requirements by a mandated reporter
an infraction, punishable by fine up to $100 for every day of
noncompliance, except that a person who is a mandated reporter by
virtue of volunteer activities would only be fined a maximum of $500
no matter how long the period of noncompliance. The bill would also
impose a fine of up to $100 on an employer whose employee is subject
to a fine under this provision. By creating a new crime, this bill
would impose a state-mandated local program.
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, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11165.1 of the Penal Code is amended to read:
11165.1. As used in this article, "sexual abuse" means sexual
assault or sexual exploitation as defined by the following:
(a) "Sexual assault" means conduct in violation of one or more of
the following sections: Section 261 (rape), subdivision (d) of
Section 261.5 (statutory rape), 264.1 (rape in concert), 285
(incest), 286 (sodomy), subdivision (a) or (b), or paragraph (1) of
subdivision (c) of Section 288 (lewd or lascivious acts upon a
child), 288a (oral copulation), 289 (penetration of a genital or anal
opening by a foreign object), or 647.6 (child molestation).
(b) Conduct described as "sexual assault" includes, but is not
limited to, all of the following:
(1) Any penetration, however slight, of the vagina or anal opening
of one person by the penis of another person, whether or not there
is the emission of semen.
(2) Any sexual contact between the genitals or anal opening of one
person and the mouth or tongue of another person.
(3) Any intrusion by one person into the genitals or anal opening
of another person, including the use of any object for this purpose,
except that, it does not include acts performed for a valid medical
purpose.
(4) The intentional touching of the genitals or intimate parts
(including the breasts, genital area, groin, inner thighs, and
buttocks) or the clothing covering them, of a child, or of the
perpetrator by a child, for purposes of sexual arousal or
gratification, except that, it does not include acts which may
reasonably be construed to be normal caretaker responsibilities;
interactions with, or demonstrations of affection for, the child; or
acts performed for a valid medical purpose.
(5) The intentional masturbation of the perpetrator's genitals in
the presence of a child.
(c) "Sexual exploitation" refers to any of the following:
(1) Conduct involving matter depicting a minor engaged in
obscene acts in violation of Section 311.2 (preparing, selling, or
distributing obscene matter) or subdivision (a) of Section 311.4
(employment of minor to perform obscene acts) Conduct
involving matter depicting a minor engaging in any sexual act or
engaging in an obscene act in violation of Section 311.2 (preparing,
selling, or distributing obscene matter) or subdivision (a) of
Section 311.4 (employment of minor to perform obscene acts) .
(2) Any person who knowingly promotes, aids, or assists, employs,
uses, persuades, induces, or coerces a child, or any person
responsible for a child's welfare, who knowingly permits or
encourages a child to engage in, or assist others to engage in,
prostitution or a live performance involving obscene
sexual conduct, or to either pose or model alone or with
others for purposes of preparing a film, photograph, negative, slide,
drawing, painting, or other pictorial depiction, involving
obscene sexual conduct. For the purpose of this section,
"person responsible for a child's welfare" means a parent, guardian,
foster parent, or a licensed administrator or employee of a public or
private residential home, residential school, or other residential
institution.
(3) Any person who depicts a child in, or who knowingly develops,
duplicates, prints, or exchanges, any film, photograph, video tape,
negative, or slide in which a child is engaged in an act of
obscene sexual conduct, except for those activities by law
enforcement and prosecution agencies and other persons described in
subdivisions (c) and (e) of Section 311.3.
SEC. 2. Section 11165.6 of the Penal Code is amended to read:
11165.6. As used in this article, "child abuse" means a
physical injury which is inflicted by other than accidental means on
a child by another person. "Child abuse" also means the sexual abuse
of a child or any act or omission proscribed by Section 273a
(willful cruelty or unjustifiable punishment of a child) or 273d
(unlawful corporal punishment or injury). "Child abuse" also means
the neglect of a child or abuse in out-of-home care, as defined in
this article. (a) As used in this article, the terms
"child sexual abuse," "child physical abuse," "child emotional abuse,"
"child neglect," and the term "child abuse and neglect" include
abuse as defined in Section 11165.1, child neglect as defined in
Section 11165.2, willful cruelty or unjustifiable punishment as
defined in Section 11165.3, unlawful corporal punishment or injury as
defined in Section 11165.4, abuse in out-of-home care as defined in
Section 11165.5, and child emotional abuse defined as significant
mental suffering inflicted upon a child or a condition in which the
emotional well-being of a child is significantly endangered in any
way.
(b) "Child abuse" does not mean a mutual affray between
minors. "Child abuse" 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.
SEC. 3. Section 11165.7 of the Penal Code is amended to read:
11165.7. (a) As used in this article, "child care
custodian" means a teacher; an instructional aide, a teacher's aide,
or a teacher's assistant employed by any public or private school,
who has been trained in the duties imposed by this article, if the
school district has so warranted to the State Department of
Education; a classified employee of any public school who has been
trained in the duties imposed by this article, if the school has so
warranted to the State Department of Education; an administrative
officer, supervisor of child welfare and attendance, or 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; a licensee, an administrator, or an
employee of a licensed community care or child day care facility; a
headstart teacher; a licensing worker or licensing evaluator; 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 family support officer unless
the investigator, inspector, or officer is working with an attorney
appointed pursuant to Section 317 of the Welfare and Institutions
Code to represent a minor; or a peace officer, as defined in Chapter
4.5 (commencing with Section 830) of Title 3 of Part 2 of this code,
who is not otherwise described in this section.
"Mandated reporter" is defined as any of the following:
(1) Any teacher, teacher's aide, instructional aide, teacher's
assistant, school administrator, and any other employee of any
school, public or private, with students who are minors.
(2) Any employee of a child day care center, community care
facility, day camp, preschool, youth center, youth recreation
program, nursery, or any other facility, business, or operation that
regularly cares for, tends, minds, watches, keeps, or supervises
children as its primary function or as a significant part of its
business or operation.
(3) Any licensee, licensing worker, or licensing evaluator of any
facility listed in this subdivision.
(4) Any foster parent, group home personnel, or personnel of a
residential care facility.
(5) Any social worker, public assistance worker, or any person who
regularly counsels or acts as a therapist for children.
(6) Any probation or parole officer.
(7) Any animal control officer or humane society officer.
(8) Any person employed as a camp counselor or youth leader.
(9) Any lifeguard or playground monitor at a facility used by
children.
(10) Any headstart teacher, assistant, or employee.
(11) Any child visitation monitor.
(12) Any police officer or security officer for a public or
private school or for a school district or for a county office of
education.
(13) Any employee of a county office of education or the
California Department of Education, whose duties bring the employee
into contact with children on a regular basis.
(14) Any person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in any public or
private school.
(15) Any district attorney investigator, inspector, or family
support officer, unless the investigator, inspectors, or officer is
working with an attorney pursuant to Section 317 of the Welfare and
Institutions Code to represent a minor.
(16) Any peace officer as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2 of this code.
(17) Any health care practitioner, physician, surgeon,
psychiatrist, psychologist, dentist, resident, intern, podiatrist,
chiropractor, physician's assistant, nurse, nurse's assistant, dental
assistant, dental hygienist, optometrist, any other person licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code, or any psychological assistant registered pursuant
to Section 2913 of the Business and Professions Code, or any employee
of any person listed in this paragraph or of any hospital, clinic,
or other facility that provides any type of health care, treatment,
therapy, or counseling, including, but not limited to, drug, alcohol,
and behavioral counseling, to children.
(18) Any marriage, family, youth, child, or parenting counselor,
or counselor trainee as defined in subdivision (c) of Section 4980.03
of the Business and Professions Code, or any unlicensed marriage,
family and child counselor intern under Section 4980.44 of the
Business and Professions Code.
(19) Any emergency medical technician, paramedic, or any person
certified pursuant to Division 2.5 (commencing with Section 1797) of
the Health and Safety Code.
(20) Anyone employed as a firefighter, but not volunteer
firefighters.
(21) Any building code, safety code, or housing code inspectors or
enforcement officers.
(22) Any public health employee.
(23) Any person who counsels minors regarding sexually transmitted
diseases.
(24) Any coroner, coroner's deputy, or employee of a coroner's
office, but not employees whose duties do not regularly cause them to
view dead bodies or scenes where death occurred.
(25) Any medical examiner or any other person who performs or
assists in the performance of autopsies.
(26) Any clergy member, as defined in Section 11165.17, or any
person who holds himself or herself out as a religious or spiritual
counselor, therapist, advisor, or practitioner.
(27) Any person who as a volunteer performs the duties of any
person listed in this subdivision on a regular, frequent, or
scheduled basis, but not a person who occasionally or irregularly
performs these duties and is a parent, stepparent, or other relative,
guardian, or foster parent of a child or other person participating
in the program, school, or other function, nor any person who
performs such functions as a volunteer on only rare or isolated
occasions, nor persons who come into incidental contact with children
without any supervisory, care, or teaching responsibilities, nor
persons who are guest speakers, presenters, or performers at
facilities listed in this subdivision, nor persons who visit these
facilities to perform services for or provide products to the
facilities or persons working at or for these facilities.
(28) Any person who performs for compensation the duties of or
holds himself or herself out to be or purports to be or functions as
any licensed, registered, or certified person listed in this
subdivision but who is not so licensed, registered, or certified, or
whose license, registration, or certification has expired or has been
revoked, suspended, or surrendered.
(b) Training in the duties imposed by this article shall include
training in child abuse identification and training in child abuse
reporting. As part of that training, school districts shall provide
to all employees being trained a written copy of the reporting
requirements and a written disclosure of the employees'
confidentiality rights.
(c) School districts which do not train the employees specified in
subdivision (a) in the duties of child care custodians under the
child abuse reporting laws shall report to the State Department of
Education the reasons why this training is not provided.
(d) Volunteers of public or private organizations whose duties
require direct contact and supervision of children are encouraged to
obtain training in the identification and reporting of child abuse.
SEC. 4. Section 11165.8 of the Penal Code is repealed.
11165.8. As used in this article, "health practitioner" means any
of the following:
(a) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code.
(b) A marriage, family and child counselor.
(c) Any emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(d) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(e) A marriage, family and child counselor trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(f) An unlicensed marriage, family and child counselor intern
registered under Section 4980.44 of the Business and Professions
Code.
(g) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(h) A coroner.
(i) A medical examiner, or any other person who performs
autopsies.
SEC. 5. Section 11165.9 of the Penal Code is repealed.
11165.9. As used in this article, "child protective agency" means
a police or sheriff's department, a county probation department, or
a county welfare department. It does not include a school district
police or security department.
SEC. 6. Section 11165.9 is added to the Penal Code, to read:
11165.9. (a) Reports of suspected child sexual abuse, child
physical abuse, child emotional abuse, or child neglect shall be made
by mandated reporters to any police department, the county sheriff's
office, the county welfare department, or an agency as specified in
subdivision (b) of this section. Any such agency shall accept a
report of suspected child abuse or neglect whether offered by a
mandated reporter or another person. An abbreviated report including
only information sufficient to identify the reporter and the child
and the nature of the suspected abuse or neglect may be taken
whenever the report appears to be duplicative of a full report
already taken.
(b) A county may establish a new agency or designate any existing
county agency, listed or not listed in subdivision (a), to receive
reports of child abuse and neglect.
(c) Any agency listed in subdivision (a) or established or
designated under subdivision (b) shall have a published telephone
number that can be called toll-free from anywhere within the agency's
jurisdiction for the receipt of reports of suspected child abuse or
neglect. Such a telephone number may be the general telephone number
for the agency or a telephone number used by the agency for multiple
purposes or a telephone number dedicated to the receipt of reports
of suspected child abuse or neglect.
(d) Any agency listed in subdivision (a) or established or
designated under subdivision (b) shall have available between the
hours of 7 a.m. and 7 p.m. every day, excluding Saturdays, Sundays,
and holidays, a trained operator to receive calls reporting suspected
child abuse or neglect. The operator shall have received at least
seven hours of training within the immediately preceding five years,
and the training shall have been provided by or approved by the
district attorney, the director or chief officer of the county
welfare department, or the county sheriff, or their designees.
Agencies are encouraged to arrange to receive reports of suspected
child abuse or neglect 24 hours a day, seven days a week. Nothing in
this article shall relieve any agency from obligations imposed upon
it by other law.
(e) An agency may meet its obligations under this section by
maintaining more than one telephone number or by contracting with
another agency or agencies listed in subdivision (a) or established
or designated under subdivision (b) to fulfill its obligations.
SEC. 7. Section 11165.16 of the Penal Code is amended to read:
11165.16. (a) For the purposes of this
article, the following terms have the following meanings:
(1)
(a) "Animal control officer" means any person employed by a
city, county, or city and county for the purpose of enforcing animal
control laws or regulations.
(2)
(b) "Humane society officer" means any person appointed or
employed by a public or private entity as a humane officer who is
qualified pursuant to Section 14502 or 14503 of the Corporations
Code.
(b) No firefighter, animal control officer, or humane society
officer shall be subject to the reporting requirements of this
article unless he or she has received training in identification and
reporting of child abuse equivalent to that received by teachers and
child care custodians.
SEC. 8. Section 11166 of the Penal Code is amended to read:
11166. (a) Except as provided in subdivision (b), any
child care custodian, health practitioner, employee of a child
protective agency, child visitation monitor, firefighter, animal
control officer, or humane society officer who has knowledge of or
observes a child, in his or her professional capacity or within the
scope of his or her employment, whom he or she knows or reasonably
suspects has been the victim of child abuse, shall report the known
or suspected instance of child abuse to a child protective agency
immediately or as soon as practically possible by telephone and shall
prepare and send a written report thereof within 36 hours of
receiving the information concerning the incident. A child
protective agency shall be notified and a report shall be prepared
and sent even if the child has expired, regardless of whether or not
the possible abuse was a factor contributing to the death, and even
if suspected child abuse was discovered during an autopsy. For the
purposes of this article, "reasonable suspicion" means that it is
objectively reasonable for a person to entertain a suspicion, based
upon facts that could cause a reasonable person in a like position,
drawing, when appropriate, on his or her training and experience, to
suspect child abuse. For the purpose of this article, the pregnancy
of a minor does not, in and of itself, constitute a basis of
reasonable suspicion of sexual abuse. A mandated
reporter shall report child sexual abuse, child physical abuse, child
emotional abuse, or child neglect whenever the mandated reporter has
information that would tend to lead a reasonable person to suspect
that abuse or neglect might have occurred. The mandated reporter
shall report the possible child abuse or neglect even if the mandated
reporter does not personally believe the information is correct or
that it indicates abuse or neglect, as long as the information would
tend to lead a reasonable person to suspect that abuse or neglect
might have occurred. The occupation or reputation of the person or
persons who might have abused or neglected the child shall not reduce
the obligation to report. A mandated reporter shall not investigate
or evaluate the information before reporting. The suspected abuse
shall be reported even if the information is incomplete or hearsay.
A mandated reporter shall report possible child sexual abuse, child
physical abuse, child emotional abuse, or child neglect by telephone
immediately and shall report in writing within 36 hours. A mandated
reporter is obligated to report under this section only if the
mandated reporter acquired the information about the suspected child
abuse or neglect through the employment, position, or activity that
makes the person a mandated reporter.
(b) Any child care custodian, health practitioner,
employee of a child protective agency, child visitation monitor,
firefighter, animal control officer, or humane society officer who
has knowledge of or who reasonably suspects that mental suffering has
been inflicted upon a child or that his or her emotional well-being
is endangered in any other way, may report the known or suspected
instance of child abuse to a child protective agency.
(c) (1) Except as provided in paragraph (2) and subdivision (d),
any clergy member who has knowledge of or observes a child, in his or
her professional capacity or within the scope of his or her duties,
whom he or she knows or reasonably suspects has been the victim of
child abuse, shall report the known or suspected instance of child
abuse to a child protective agency immediately or as soon as
practically possible by telephone and shall prepare and send a
written report thereof within 36 hours of receiving the information
concerning the incident. A child protective agency shall be notified
and a report shall be prepared and sent even if the child has
expired, regardless of whether or not the possible abuse was a factor
contributing to the death.
(2)
(1) A clergy member who acquires knowledge or
reasonable suspicion of child abuse information
during a penitential communication is not subject to
paragraph (1) shall not be deemed to have acquired
that information for purposes of subdivision (a) . For the
purposes of this subdivision, "penitential communication" means a
communication, intended to be in confidence, including, but not
limited to, a sacramental confession, made to a clergy member who, in
the course of the discipline or practice of his or her church,
denomination, or organization, is authorized or accustomed to hear
those communications, and under the discipline, tenets, customs, or
practices of his or her church, denomination, or organization, has a
duty to keep those communications secret.
(3)
(2) Nothing in this subdivision shall be construed to modify
or limit a clergy member's duty to report known or suspected child
abuse when he or she is acting in the capacity of a child care
custodian, health practitioner, employee of a child protective
agency, child visitation monitor, firefighter, animal control
officer, humane society officer, or commercial film print processor
or other category of mandated reporter .
(d) Any member of the clergy who has knowledge of or who
reasonably suspects that mental suffering has been inflicted upon a
child or that his or her emotional well-being is endangered in any
other way may report the known or suspected instance of child abuse
to a child protective agency.
(e) Any commercial film and photographic print processor
who has knowledge of or observes, within the scope of his or her
professional capacity or employment, any film, photograph, videotape,
negative, or slide depicting a child under the age of 16 years
engaged in an act of sexual conduct, shall report the instance of
suspected child abuse to the law enforcement agency having
jurisdiction over the case immediately, or as soon as practically
possible, by telephone, and shall prepare and send a written report
of it with a copy of the film, photograph, videotape, negative, or
slide attached within 36 hours of receiving the information
concerning the incident. As used in this subdivision, "sexual
conduct" means any of the following:
(1) Sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex or between humans and animals.
(2) Penetration of the vagina or rectum by any object.
(3) Masturbation for the purpose of sexual stimulation of the
viewer.
(4) Sadomasochistic abuse for the purpose of sexual stimulation of
the viewer.
(5) Exhibition of the genitals, pubic, or rectal areas of any
person for the purpose of sexual stimulation of the viewer.
(f)
(e) Any other person who has knowledge of or observes a
child whom he or she knows or reasonably suspects has been a victim
of child abuse may report the known or suspected instance of child
abuse to a child protective agency.
(g)
(f) When two or more persons who are required to report
are present and jointly have knowledge of a known
or suspected instance of child abuse, 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.
(h)
(g) (1) The reporting duties under this section are
individual, and no supervisor or administrator may impede or inhibit
the reporting duties, and no person making a report shall be subject
to any sanction for making the report. However, internal procedures
to facilitate reporting and apprise supervisors and administrators of
reports may be established provided that they are not inconsistent
with this article. Reporting the information to an employer,
supervisor, school principal, school counselor, coworker, or other
person is not a substitute for making a mandated report to an agency
specified in Section 11165.9, to receive mandated reports.
(2) The internal procedures shall not require any employee
required to make reports pursuant to this article to disclose his or
her identity to the employer.
(i)
(h) (1) A county probation or welfare department shall
immediately, or as soon as practically possible, report by telephone
to the law enforcement agency having jurisdiction over the case, to
the agency given the responsibility for investigation of cases under
Section 300 of the Welfare and Institutions Code, and to the district
attorney's office every known or suspected instance of child abuse,
as defined in Section 11165.6, except acts or omissions coming within
subdivision (b) of Section 11165.2, or reports made pursuant to
Section 11165.13 based on risk to a child which relates solely to the
inability of the parent to provide the child with regular care due
to the parent's substance abuse, which shall be reported only to the
county welfare department. A county probation or welfare department
also shall send a written report thereof within 36 hours of receiving
the information concerning the incident to any agency to which it is
required to make a telephone report under this subdivision.
(2) A law enforcement agency shall immediately, or as soon
as practically possible, report by telephone to the agency given
responsibility for investigation of cases under Section 300 of the
Welfare and Institutions Code and to the district attorney's office
every known or suspected instance of child abuse reported to it,
except acts or omissions coming within subdivision (b) of Section
11165.2, which shall be reported only to the county welfare
department. A law enforcement agency shall report to the county
welfare department every known or suspected instance of child abuse
reported to it which is alleged to have occurred as a result of the
action of a person responsible for the child's welfare, or as the
result of the failure of a person responsible for the child's welfare
to adequately protect the minor from abuse when the person
responsible for the child's welfare knew or reasonably should have
known that the minor was in danger of abuse. A law enforcement
agency also shall send a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it is required to make a telephone report under this
subdivision.
SEC. 9. Section 11166.3 of the Penal Code is amended to read:
11166.3. (a) The Legislature intends that in each county the law
enforcement agencies and the county welfare or social services
department shall develop and implement cooperative arrangements in
order to coordinate existing duties in connection with the
investigation of suspected child abuse cases. The local law
enforcement agency having jurisdiction over a case reported under
Section 11166 shall report to the county welfare department that it
is investigating the case within 36 hours after starting its
investigation. The county welfare department or social services
department shall, in cases where a minor is a victim of actions
specified in Section 288 of this code and a petition has been filed
pursuant to Section 300 of the Welfare and Institutions Code with
regard to the minor , in accordance with the requirements of
subdivision (c) of Section 288, evaluate what action or
actions would be in the best interest of the child victim.
Notwithstanding any other provision of law, the county welfare
department or social services department shall submit in writing its
findings and the reasons therefor to the district attorney on or
before the completion of the investigation. The written findings and
the reasons therefor shall be delivered or made accessible to the
defendant or his or her counsel in the manner specified in Sections
859 and 1430. The child protective agency shall send a copy of its
investigative report and any other pertinent materials to the
licensing agency upon the request of the licensing agency.
(b) The local law enforcement agency having jurisdiction over a
case reported under Section 11166 shall report to the district office
of the State Department of Social Services any case reported under
this section if the case involves a facility specified in paragraph
(5) or (6) of Section 1502 or in Section 1596.750 or 1596.76 of the
Health and Safety Code and the licensing of the facility has not been
delegated to a county agency. The law enforcement agency shall send
a copy of its investigation report and any other pertinent materials
to the licensing agency upon the request of the licensing agency.
SEC. 10. Section 11166.5 of the Penal Code is repealed.
11166.5. (a) On and after January 1, 1985, any person who enters
into employment as a child care custodian, health practitioner,
firefighter, animal control officer, or humane society officer, or
with a child protective agency, prior to commencing his or her
employment, and as a prerequisite to that employment, shall sign a
statement on a form provided to him or her by his or her employer to
the effect that he or she has knowledge of the provisions of Section
11166 and will comply with those provisions.
On and after January 1, 1993, any person who acts as a child
visitation monitor, as defined in Section 11165.15, prior to engaging
in monitoring the first visit in a case, shall sign a statement on a
form provided to him or her by the court which ordered the presence
of that third person during the visit, to the effect that he or she
has knowledge of the provisions of Section 11166 and will comply with
those provisions.
The statement shall include all of the following provisions:
Section 11166 of the Penal Code requires any child care custodian,
health practitioner, firefighter, animal control officer, or humane
society officer, employee of a child protective agency, or child
visitation monitor who has knowledge of, or observes, a child in his
or her professional capacity or within the scope of his or her
employment whom he or she 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 immediately, or as soon as
practically possible, by telephone and to prepare and send a written
report thereof within 36 hours of receiving the information
concerning the incident.
For purposes of this section, "child care custodian" includes
teachers; an instructional aide, a teacher's aide, or a teacher's
assistant employed by any public or private school, who has been
trained in the duties imposed by this article, if the school district
has so warranted to the State Department of Education; a classified
employee of any public school who has been trained in the duties
imposed by this article, if the school has so warranted to the State
Department of Education; administrative officers, supervisors of
child welfare and attendance, or certificated pupil personnel
employees of any public or private school; administrators of a public
or private day camp; administrators and employees of public or
private youth centers, youth recreation programs, or youth
organizations; administrators and employees of public or private
organizations whose duties require direct contact and supervision of
children and who have been trained in the duties imposed by this
article; licensees, administrators, and employees of licensed
community care or child day care facilities; headstart teachers;
licensing workers or licensing evaluators; public assistance workers;
employees of a child care institution including, but not limited to,
foster parents, group home personnel, and personnel of residential
care facilities; social workers, probation officers, or parole
officers; employees of a school district police or security
department; any person who is an administrator or a presenter of, or
a counselor in, a child abuse prevention program in any public or
private school; a district attorney investigator, inspector, or
family support officer unless the investigator, inspector, or officer
is working with an attorney appointed pursuant to Section 317 of the
Welfare and Institutions Code to represent a minor; or a peace
officer, as defined in Chapter 4.5 (commencing with Section 830) of
Title 3 of Part 2 of this code, who is not otherwise described in
this section.
"Health practitioner" includes physicians and surgeons,
psychiatrists, psychologists, dentists, residents, interns,
podiatrists, chiropractors, licensed nurses, dental hygienists,
optometrists, or any other person who is licensed under Division 2
(commencing with Section 500) of the Business and Professions Code;
marriage, family, and child counselors; emergency medical technicians
I or II, paramedics, or other persons certified pursuant to Division
2.5 (commencing with Section 1797) of the Health and Safety Code;
psychological assistants registered pursuant to Section 2913 of the
Business and Professions Code; marriage, family, and child counselor
trainees as defined in subdivision (c) of Section 4980.03 of the
Business and Professions Code; unlicensed marriage, family, and child
counselor interns registered under Section 4980.44 of the Business
and Professions Code; state or county public health employees who
treat minors for venereal disease or any other condition; coroners;
and paramedics.
"Child visitation monitor" means any person as defined in Section
11165.15.
The signed statements shall be retained by the employer or the
court, as the case may be. The cost of printing, distribution, and
filing of these statements shall be borne by the employer or the
court.
This subdivision is not applicable to persons employed by child
protective agencies, public or private youth centers, youth
recreation programs, and youth organizations as members of the
support staff or maintenance staff and who do not work with, observe,
or have knowledge of children as part of their official duties.
(b) On and after January 1, 1986, when a person is issued a state
license or certificate to engage in a profession or occupation, the
members of which are required to make a report pursuant to Section
11166, the state agency issuing the license or certificate shall send
a statement substantially similar to the one contained in
subdivision (a) to the person at the same time as it transmits the
document indicating licensure or certification to the person. In
addition to the requirements contained in subdivision (a), the
statement also shall indicate that failure to comply with the
requirements of Section 11166 is a misdemeanor, punishable by up to
six months in a county jail, by a fine of one thousand dollars
($1,000), or by both that imprisonment and fine.
(c) As an alternative to the procedure required by subdivision
(b), a state agency may cause the required statement to be printed on
all application forms for a license or certificate printed on or
after January 1, 1986.
(d) On and after January 1, 1993, any child visitation monitor, as
defined in Section 11165.15, who desires to act in that capacity
shall have received training in the duties imposed by this article,
including training in child abuse identification and child abuse
reporting. The person, prior to engaging in monitoring the first
visit in a case, shall sign a statement on a form provided to him or
her by the court which ordered the presence of that third person
during the visit, to the effect that he or she has received this
training. This statement may be included in the statement required
by subdivision (a) or it may be a separate statement. This statement
shall be filed, along with the statement required by subdivision
(a), in the court file of the case for which the visitation
monitoring is being provided.
SEC. 11. Section 11166.5 is added to the Penal Code, to read:
11166.5. (a) Any person employed in a position that causes that
person to be a mandated reporter must, within 14 days of beginning
that employment, complete at least two hours of training in
recognizing and reporting child abuse and neglect, and the
obligations of reporting suspected child abuse and neglect.
(b) Any person already employed in a position that causes that
person to be a mandated reporter at the time of the effective date of
this subdivision must complete the training specified in subdivision
(a) within six months of the effective date of this section.
(c) Mandated reporters who are not employed by an employer other
than themselves must complete the training specified in subdivision
(a) before entering into the activity that makes the person a
mandated reporter. No license shall be issued, renewed, or reissued
to anyone who would be a mandated reporter by operating, practicing,
or doing business under that license unless and until that person has
completed the training specified in subdivision (a).
(d) Any person already engaged in activities, professions,
occupations, or positions that make that person a mandated reporter
at the time of the effective date of this section must complete the
training specified in subdivision (a) within six months of the
effective date of this section. Any licensee who is a mandated
reporter because of his or her licensure must complete the training
specified in subdivision (a) within six months of the effective date
of this section.
(e) Any mandated reporter not covered by subdivisions (a) through
(d) of this section must complete the training specified in
subdivision (a) no later than six months after the effective date of
this section.
(f) Once trained pursuant to this section, a mandated reporter
shall renew his or her training as specified in subdivision (a) so
that he or she has always completed the required training within the
last five years.
(g) Any training required by this section or by Section 11165.9
may be completed by live instruction, teleconferencing instruction,
internet instruction, videotape or audio tape instruction, or by
written training materials containing information that if presented
in live instruction would take at least the minimum time specified.
All instruction must be provided by or approved by the district
attorney, the director or chief officer of the county welfare
department, or the county sheriff, or their designees.
(h) Any mandated reporter not in compliance with the provisions of
this section is guilty of an infraction and may be fined up to one
hundred dollars ($100) for every day of noncompliance, each day
constituting a separate infraction. However, any person who is a
mandated reporter because of the person's volunteer activities may be
fined no more than five hundred dollars ($500) no matter how long
the period of noncompliance. Employers of persons who are mandated
as reporters as a result of their employment are guilty of an
infraction, when that employee is in violation of this section, and
may be fined up to one hundred dollars ($100) for every day of the
employee's noncompliance, each day constituting a separate
infraction. The employee's presentation to the employer of false
documentation of compliance shall be a full defense to any violation
alleged against the employer. An employee's inability to be in
compliance due to physical or mental incapacity or absence from the
state shall be a full defense for the employee and the employer.
SEC. 12. Section 11167 of the Penal Code is amended to read:
11167. (a) A telephone report of a known or suspected
instance of child abuse shall include the name of the person making
the report, the name of the child, the present location of the child,
the nature and extent of the injury, and any other information,
including information that led that person to suspect child abuse,
requested by the child protective agency. Reports of
suspected child abuse or neglect shall include the name, business
address, and telephone number of the mandated reporter, and the
capacity that makes the person a mandated reporter; the child's name
and address and, where applicable, the school, grade, class; the
names, addresses, and telephone numbers of the child's parents or
guardians; the information which would tend to lead a reasonable
person to suspect that child abuse or neglect might have occurred and
the source or sources of that information; and the name, address,
telephone number, and other personal information about the person or
persons who might have abused or neglected the child. The mandated
reporter shall report even if some of the information to be reported
is not known or is uncertain.
(b) Information relevant to the incident of child abuse may also
be given to an investigator from a child protective agency who is
investigating the known or suspected case of child abuse and
neglect .
(c) Information relevant to the incident of child abuse may be
given to the licensing agency when it is investigating a known or
suspected case of child abuse and neglect , including the
investigation report, and other pertinent materials.
(d) The identity of all persons who report under this article
shall be confidential and disclosed only between child protective
agencies, or to counsel representing a child protective agency, or to
the district attorney in a criminal prosecution or in an action
initiated under Section 602 of the Welfare and Institutions Code
arising from alleged child abuse, or to counsel appointed pursuant to
subdivision (c) of Section 317 of the Welfare and Institutions Code,
or to the county counsel or district attorney in a proceeding under
Part 4 (commencing with Section 7800) of Division 12 of the Family
Code or Section 300 of the Welfare and Institutions Code, or to a
licensing agency when abuse in out-of-home care is reasonably
suspected, or when those persons waive confidentiality, or by court
order.
No agency or person listed in this subdivision shall disclose the
identity of any person who reports under this article to that person'
s employer, except with the employee's consent or by court order.
(e) Persons who may report pursuant to subdivision (f) of Section
11166 are not required to include their names.
SEC. 13. Section 11167.5 of the Penal Code is amended to read:
11167.5. (a) The reports required by Sections 11166 and 11166.2
shall be confidential and may be disclosed only as provided in
subdivision (b). Any violation of the confidentiality provided by
this article is a misdemeanor punishable by imprisonment in a county
jail not to exceed six months, by a fine of five hundred dollars
($500), or by both that imprisonment and fine.
(b) Reports of suspected child abuse and neglect and
information contained therein may be disclosed only to the following:
(1) Persons or agencies to whom disclosure of the identity of the
reporting party is permitted under Section 11167.
(2) Persons or agencies to whom disclosure of information is
permitted under subdivision (b) of Section 11170.
(3) Persons or agencies with whom investigations of child abuse
and neglect are coordinated under the regulations
promulgated under Section 11174.
(4) Multidisciplinary personnel teams as defined in subdivision
(d) of Section 18951 of the Welfare and Institutions Code.
(5) Persons or agencies responsible for the licensing of
facilities which care for children, as specified in Section 11165.7.
(6) The State Department of Social Services or any county
licensing agency which has contracted with the state, as specified in
paragraph (3) of subdivision (b) of Section 11170, when an
individual has applied for a community care license or child day care
license, or for employment in an out-of-home care facility, or when
a complaint alleges child abuse or neglect by an operator
or employee of an out-of-home care facility.
(7) Hospital scan teams. As used in this paragraph, "hospital
scan team" means a team of three or more persons established by a
hospital, or two or more hospitals in the same county, consisting of
health care professionals and representatives of law enforcement and
child protective services, the members of which are engaged in the
identification of child abuse and neglect . The disclosure
authorized by this section includes disclosure among all hospital
scan teams.
(8) Coroners and medical examiners when conducting a postmortem
examination of a child.
(9) The Board of Prison Terms, who may subpoena an employee of a
county welfare department who can provide relevant evidence and
reports that (A) are not unfounded, pursuant to Section 11165.12, and
(B) concern only the current incidents upon which parole revocation
proceedings are pending against a parolee charged with child abuse
and neglect . The reports and information shall be
confidential pursuant to subdivision (d) of Section 11167.
(10) Personnel from a child protective agency responsible for
making a placement of a child pursuant to Section 361.3 of, and
Article 7 (commencing with Section 305) of Chapter 2 of Part 1 of
Division 2 of, the Welfare and Institutions Code.
(11) Persons who have been identified by the Department of Justice
as listed in the Child Abuse Central Index pursuant to subdivision
(c) of Section 11170. Nothing in this paragraph shall preclude a
submitting agency prior to disclosure from redacting the name,
address, and telephone number of a witness, person who reports under
this article, or victim in order to maintain confidentiality as
required by law.
(12) Out-of-state law enforcement agencies conducting an
investigation of child abuse and neglect only when an
agency makes the request for reports of suspected child abuse
and neglect in writing and on official letterhead, identifying
the suspected abuser or victim by name. 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 criminal penalties for
unlawful disclosure provided by the requesting state or the
applicable interstate compact provision. In the absence of a
specific 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 criminal penalties
equivalent to the penalties in California for unlawful disclosure,
access shall be denied.
(13) Persons who have verified with the Department of Justice that
they are listed in the Child Abuse Central Index as provided by
subdivision (e) of Section 11170. Disclosure under this section
shall be subject to the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code). Nothing in this section shall preclude a
submitting agency prior to disclosure from redacting the name,
address, and telephone number of a witness, person who reports under
this article, or victim to maintain confidentiality as required by
law.
(14) Each county child death review team's chairperson, or the
chairperson's designee, to whom disclosure of information is
permitted under this article, relating to the death of one or more
children and any prior child abuse investigation reports maintained
involving the same victim, 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.
(c) Authorized persons within county health departments
shall be permitted to receive copies of any reports made by health
practitioners, as defined in Section 11165.8, pursuant to Section
11165.13, and copies of assessments completed pursuant to Sections
123600 and 123605 of the Health and Safety Code, to the extent
permitted by federal law. Any information received pursuant to this
subdivision is protected by subdivision (e).
(d) Nothing in this section shall be interpreted to require the
Department of Justice to disclose information contained in records
maintained under Section 11169 or under the regulations promulgated
pursuant to Section 11174, except as otherwise provided in this
article.
(e) This section shall not be interpreted to allow disclosure of
any reports or records relevant to the reports of child abuse
and neglect if the disclosure would be prohibited by any other
provisions of state or federal law applicable to the reports or
records relevant to the reports of child abuse and neglect
.
SEC. 14. Section 11168 of the Penal Code is amended to read:
11168. The written reports required by Section 11166 shall be
submitted on forms adopted by the Department of Justice after
consultation with representatives of the various professional medical
associations and hospital associations and county probation or
welfare departments. Such forms shall be distributed by the
child protective agencies agencies specified in
Section 11165.9 .
SEC. 15. 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 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. 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 to be maintained in the Child Abuse Central
Index 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
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.
(b) (1) The Department of Justice shall immediately notify a child
protective agency that submits a report pursuant to Section 11169,
or a district attorney who requests notification, of any information
maintained pursuant to subdivision (a) that is relevant to the known
or suspected instance of child abuse reported by the agency. A child
protective agency shall make that information available to the
reporting medical practitioner, child custodian, guardian ad litem
appointed under Section 326, or counsel appointed under Section 317
or 318 of the Welfare and Institutions Code, or the appropriate
licensing agency, if he or she is treating or investigating a case of
known or suspected child abuse.
(2) When a report is made pursuant to subdivision (a) or
(c) of Section 11166, the investigating agency, upon
completion of the investigation or after there has been a final
disposition in the matter, shall inform the person required 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 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
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.
(4) 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 maintained in the Child Abuse
Central Index pursuant to subdivision (a) of Section 11170 relating
to the death of one or more children and any prior child abuse
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.
(5) The department shall make available to child protective
agencies, 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 interests of the child. Upon receipt of relevant
information concerning child abuse investigation reports contained in
the index from the Department of Justice pursuant to this
subdivision, the child protective 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.
(6) (A) Persons or agencies, as specified in subdivision (b), if
investigating a case of known or suspected child abuse, or the State
Department of Social Services or any county licensing agency pursuant
to paragraph (3), or a child protective agency or court investigator
responsible for placing children or assessing the possible placement
of children pursuant to paragraph (5), 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, or
placement of a child.
(B) If Child Abuse Central Index information is requested by a
child protective 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 child protective agency's
inquiry and if further delay in placement may be detrimental to the
child.
(7) (A) Whenever information contained in the Department of
Justice files is furnished as the result of an application for
employment or licensing pursuant to paragraph (3), 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 system checks pursuant to this section.
(C) All moneys, other than that 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
Section 290.2, and for maintenance and improvements to the statewide
Sexual Habitual Offender Program and the DNA offender identification
file (CAL-DNA) authorized by Chapter 9.5 (commencing with Section
13885) of Title 6 of Part 4 and Section 290.2.
(c) The Department of Justice shall make available to any child
protective 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 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
reports contained in the index from the Department of Justice
pursuant to this subdivision, the child protective agency shall also
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
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 information is requested by a child
protective 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 Section 11169 to out-of-state law enforcement agencies
conducting investigations of known or suspected child abuse only when
an agency makes the request for information in writing and on
official letterhead, identifying the suspected abuser or victim by
name. 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 criminal
penalties for unlawful disclosure of any confidential information
provided by the requesting state or the applicable interstate compact
provision. In the absence of a specified 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 criminal penalties equivalent to the
penalties in California for unlawful disclosure, access shall be
denied.
(e) Any person may determine if he or she is listed in the Child
Abuse Central Index 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 (13) of subdivision (a) of Section 11167.5.
(f) If a person is listed in the Child Abuse Central Index only as
a victim of child abuse, 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. 16. Section 11171 of the Penal Code is amended to read:
11171. (a) A physician and surgeon or dentist or their agents and
by their direction may take skeletal X-rays of the child without the
consent of the child's parent or guardian, but only for purposes of
diagnosing the case as one of possible child abuse and neglect
and determining the extent of such child abuse and neglect
.
(b) Neither the physician-patient privilege nor the
psychotherapist-patient privilege applies to information reported
pursuant to this article in any court proceeding or administrative
hearing.
SEC. 17. Section 11171.5 of the Penal Code is amended to read:
11171.5. (a) If a peace officer, in the course of an
investigation of child abuse and neglect , has reasonable
cause to believe that the child has been the victim of physical
abuse, the officer may apply to a magistrate for an order directing
that the victim be X-rayed without parental consent.
Any X-ray taken pursuant to this subdivision shall be administered
by a physician and surgeon or dentist or their agents.
(b) With respect to the cost of an X-ray taken by the county
coroner or at the request of the county coroner in suspected child
abuse and neglect cases, the county may charge the parent
or legal guardian of the child-victim the costs incurred by the
county for the X-ray.
(c) No person who administers an X-ray pursuant to this section
shall be entitled to reimbursement from the county for any
administrative cost that exceeds 5 percent of the cost of the X-ray.
SEC. 18. Section 11172 of the Penal Code is amended to read:
11172. (a) No child care custodian, health practitioner,
firefighter, clergy member, animal control officer, humane society
officer, employee of a child protective agency, child visitation
monitor mandated reporter , or commercial film
and photographic print processor who reports a known or suspected
instance of child abuse shall be civilly or criminally liable for any
report required or authorized by this article. Any other person
reporting a known or suspected instance of child abuse and
neglect shall not incur civil or criminal liability as a result
of any report authorized by this article unless it can be proven
that a false report was made and the person knew that the report was
false or was made with reckless disregard of the truth or falsity of
the report, and any person who makes a report of child abuse and
neglect known to be false or with reckless disregard of the
truth or falsity of the report is liable for any damages caused. No
person required to make a report pursuant to this article, nor any
person taking photographs at his or her direction, shall incur any
civil or criminal liability for taking photographs of a suspected
victim of child abuse and neglect , or causing photographs
to be taken of a suspected victim of child abuse and neglect
, without parental consent, or for disseminating the
photographs with the reports required by this article. However, this
section shall not be construed to grant immunity from this liability
with respect to any other use of the photographs.
(b) Any child care custodian, health practitioner,
firefighter, clergy member, animal control officer, humane society
officer, employee of a child protective agency, or child visitation
monitor mandated reporter who, pursuant to a
request from a child protective agency an
agency specified in Section 11165.9 , provides the requesting
agency with access to the victim of a known or suspected instance of
child abuse and neglect shall not incur civil or criminal
liability as a result of providing that access.
(c) The Legislature finds that even though it has provided
immunity from liability to persons required to report child abuse
and neglect , that immunity does not eliminate the
possibility that actions may be brought against those persons based
upon required reports of child abuse and neglect . In
order to further limit the financial hardship that those persons may
incur as a result of fulfilling their legal responsibilities, it is
necessary that they not be unfairly burdened by legal fees incurred
in defending those actions. Therefore, a child care
custodian, health practitioner, firefighter, clergy member, animal
control officer, humane society officer, employee of a child
protective agency, child visitation monitor mandated
reporter , or commercial film and photographic print processor
may present a claim to the State Board of Control for reasonable
attorneys' fees incurred in any action against that person on the
basis of making a report required or authorized by this article if
the court has dismissed the action upon a demurrer or motion for
summary judgment made by that person, or if he or she prevails in the
action. The State Board of Control shall allow that claim if the
requirements of this subdivision are met, and the claim shall be paid
from an appropriation to be made for that purpose. Attorneys' fees
awarded pursuant to this section shall not exceed an hourly rate
greater than the rate charged by the Attorney General of the State of
California at the time the award is made and shall not exceed an
aggregate amount of fifty thousand dollars ($50,000).
This subdivision shall not apply if a public entity has provided
for the defense of the action pursuant to Section 995 of the
Government Code.
(d) A court may award attorney's fees to a commercial film and
photographic print processor when a suit is brought against the
processor because of a disclosure mandated by this article and the
court finds this suit to be frivolous.
(e) Any person who fails to report an instance of child abuse
which he or she knows to exist, or reasonably should know to exist,
as required by this article, is guilty of a misdemeanor, punishable
by confinement in a county jail for a term not to exceed six months,
by a fine of not more than one thousand dollars ($1,000), or by both
that imprisonment and fine.
SEC. 19. Section 11173 is added to the Penal Code, to read:
11173. (a) Any mandated reporter who has information which would
tend to lead a reasonable person to suspect that child sexual abuse,
child physical abuse, child emotional abuse, or child neglect might
have occurred and does not report as required in this article is
guilty of a misdemeanor.
(b) Any mandated reporter who has information which would tend to
lead a reasonable person to suspect that child sexual abuse, child
physical abuse, child emotional abuse, or child neglect might have
occurred and does not report as required in this article and the
mandated reporter knows or should have known that the person who
might have abused or neglected a child is himself or herself a
mandated reporter shall be guilty of a crime punishable by
confinement in the state prison for 16 months, or two or three years,
or by confinement in a county jail for a period not to exceed one
year.
SEC. 20. Section 11174.1 of the Penal Code is amended to read:
11174.1. (a) The Department of Justice, in cooperation with the
State Department of Social Services, shall prescribe by regulation
guidelines for the investigation of child abuse and neglect
, as defined in Section 11165.6, in facilities licensed to care
for children, and shall ensure that the investigation is conducted
in accordance with the regulations and guidelines.
(b) For community treatment facilities, day treatment facilities,
group homes, and foster family agencies, the State Department of
Social Services shall prescribe the following regulations:
(1) Regulations designed to assure that all licensees and
employees of community treatment facilities, day treatment
facilities, group homes, and foster family agencies licensed to care
for children have had appropriate training, as determined by the
State Department of Social Services, in consultation with
representatives of licensees, on the provisions of this article.
(2) Regulations designed to assure the community treatment
facilities, day treatment facilities, group homes, and foster family
agencies licensed to care for children maintain a written protocol
for the investigation and reporting of child abuse and neglect
, as defined in Section 11165.6, alleged to have occurred
involving a child placed in the facility.
(c) The State Department of Social Services shall provide such
orientation and training as it deems necessary to assure that its
officers, employees, or agents who conduct inspections of facilities
licensed to care for children are knowledgeable about the reporting
requirements of this article and have adequate training to identify
conditions leading to, and the signs of, child abuse and neglect
, as defined in Section 11165.6.
SEC. 21. Section 11174.3 of the Penal Code is amended to read:
11174.3. (a) Whenever a representative of a child
protective agency an agency specified in Section
11165.9 deems it necessary, a suspected victim of child abuse
and neglect may be interviewed during school hours, on
school premises, concerning a report of suspected child abuse
and neglect that occurred within the child's home. The child
shall be afforded the option of being interviewed in private or
selecting any adult who is a member of the staff of the school,
including any certificated or classified employee or volunteer aide,
to be present at the interview. A representative of the child
protective agency shall inform the child of that right prior to the
interview. The purpose of the staff person's presence at the
interview is to lend support to the child and enable him or her to be
as comfortable as possible; however, the member of the staff so
elected shall not participate in the interview. The member of the
staff so present shall not discuss the facts or circumstances of the
case with the child. The member of the staff so present, including,
but not limited to, a volunteer aide, is subject to the
confidentiality requirements of this article, a violation of which is
punishable as specified in Section 11167.5. A representative of the
school shall inform a member of the staff so selected by a child of
the requirements of this section prior to the interview. A staff
member selected by a child may decline the request to be present at
the interview. If the staff person selected agrees to be present,
the interview shall be held at a time during school hours when it
does not involve an expense to the school. Failure to comply with
the requirements of this section does not affect the admissibility of
evidence in a criminal or civil proceeding.
(b) The Superintendent of Public Instruction shall notify each
school district, and each child protective agency shall notify each
of its employees who participate in the investigation of reports of
child abuse and neglect , of the requirements of this
section.
SEC. 22. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other 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. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.