BILL NUMBER: AB 1241 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 6, 1999
INTRODUCED BY Assembly Member Rod Pacheco
FEBRUARY 26, 1999
An act relating to crime prevention to
amend Sections 11165.7, 11166, 11166.5, and 11172 of, and to repeal
Section 11165.8 of, the Penal Code, relating to child abuse reporting
.
LEGISLATIVE COUNSEL'S DIGEST
AB 1241, as amended, Rod Pacheco. Crime prevention: child abuse
reporting.
Existing law expresses the intent and purpose of the Legislature
to protect children from abuse and specifically states that in any
investigation of suspected child abuse, all persons participating in
the investigation of the case shall consider the needs of the child
victim and shall do whatever is necessary to prevent psychological
harm to the child victim.
This bill would express the intent of the Legislature to enact
reforms to the mandated child abuse reporting laws.
Existing law establishes the Child Abuse and Neglect Reporting Act
(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.
This bill would reorganize and recast the list of specified
persons who are required to report as described above and designate
those persons as mandated reporters, as defined. The bill would also
reorganize other provisions of CANRA that reference those persons
required to report, as specified.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature to enact reforms to
the mandated child abuse reporting laws.
SECTION 1. 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. As
used in this article, "mandated reporter" is defined as any of the
following:
(1) A teacher.
(2) An instructional aide.
(3) A teacher's aide or 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.
(4) 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.
(5) An administrative officer or supervisor of child welfare and
attendance.
(6) A certified pupil personnel employee of any public or private
school.
(7) An administrator of a public or private day camp.
(8) An administrator or employee of a public or private
organization whose duties require direct contact and supervision of
children.
(9) An administrator or employee of a public or private
organization whose duties require direct contact and supervision of
children.
(10) A licensee, an administrator, or an employee of a licensed
community care or child day care facility.
(11) A headstart teacher.
(12) A licensing worker or licensing evaluator.
(13) A public assistance worker.
(14) An employee of a child care institution, including, but not
limited to, foster parents, group home personnel, and personnel of
residential care facilities.
(15) A social worker, probation officer, or parole officer.
(16) An employee of a school district police or security
department.
(17) Any person who is an administrator or presenter of, or a
counselor in, a child abuse prevention program in any public or
private school.
(18) 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.
(19) A peace officer, as defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2, who is not otherwise described in
this section.
(20) A physician, surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage, family and child counselor,
clinical social worker, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code.
(21) Any emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
197) of the Health and Safety Code.
(22) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(23) A marriage, family and child counselor trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(24) An unlicensed marriage, family, and child counselor intern
registered under Section 4980.44 of the Business and Professions
Code.
(25) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(26) A coroner.
(27) A medical examiner, or any other person who performs
autopsies.
(28) A commercial film and photographic print processor.
(29) A child visitation monitor, as defined in Section 11165.15.
(30) An animal control officer, as defined in Section 11165.16.
(31) A firefighter.
(32) A clergy member, as defined in Section 11165.17.
(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. 2. 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, marriage, family and child counselor,
clinical social worker, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code.
(b) 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.
(c) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(d) A marriage, family and child counselor trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(e) An unlicensed marriage, family and child counselor intern
registered under Section 4980.44 of the Business and Professions
Code.
(f) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(g) A coroner.
(h) A medical examiner, or any other person who performs
autopsies.
SEC. 3. 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 mandated
reporter 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.
(b) Any child care custodian, health practitioner,
employee of a child protective agency, child visitation monitor,
firefighter, animal control officer, or humane society officer
mandated reporter 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) A clergy member who acquires knowledge or reasonable suspicion
of child abuse during a penitential communication is not subject to
paragraph (1). 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) 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.
(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) 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) 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) 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.
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) 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.
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. 4. Section 11166.5 of the Penal Code is amended to read:
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, mandated
reporter as specified in Section 11165.7, excepting a commercial film
and photographic print processor, an animal control officer, or a
member of the clergy, 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 mandated reporter as
specified in Section 11165.7, excepting a commercial film and
photographic print processor, an animal control officer, or a member
of the clergy, 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. 5. 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, or commercial film and photographic print processor
mandated reporter 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
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 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, or causing photographs to be taken of a
suspected victim of child abuse, 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, provides the requesting
agency with access to the victim of a known or suspected instance of
child abuse 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,
that immunity does not eliminate the possibility that actions may be
brought against those persons based upon required reports of child
abuse. 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, or
commercial film and photographic print processor
mandated reporter 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.