BILL NUMBER: AB 299 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 30, 2005
INTRODUCED BY Assembly Member Maze
FEBRUARY 9, 2005
An act to amend Section 11165.9 of the Penal Code, and to
amend Section 827 of the Welfare and Institutions Code, relating to
juveniles. An act to amend Section 11166 of the Penal
Code, relating to mandatory child abuse reporting.
LEGISLATIVE COUNSEL'S DIGEST
AB 299, as amended, Maze. Juvenile case files
Mandatory reporting .
Existing law requires that reports of suspected child abuse or
neglect be made by mandated reporters , via telephone and
written report, following specified procedures and time lines,
to any police department or sheriff's department, county probation
department, as specified, or the county welfare department.
This bill would require a police department or sheriff's
department that receives that report to transmit it to the county
welfare office within 60 minutes of receiving it. By imposing new
duties on local law enforcement, the bill would impose a
state-mandated local program.
Existing law delineates the persons who are authorized to inspect
juvenile case files.
This bill would make a technical change to that provision.
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.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
This bill would permit child abuse or neglect reports to be made
via fax or electronic transmission.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 11165.9 of the Penal Code is amended to read:
SECTION 1. Section 11166 of the Penal Code
is amended to read:
11166. (a) Except as provided in subdivision (c), a mandated
reporter shall make a report to an agency specified in Section
11165.9 whenever the mandated reporter, in his or her professional
capacity or within the scope of his or her employment, has knowledge
of or observes a child whom the mandated reporter knows or reasonably
suspects has been the victim of child abuse or neglect. The mandated
reporter shall make a report to the agency immediately or as soon as
is practicably possible by telephone, fax, or electronic
transmission and the mandated reporter shall prepare and send
, fax, or electronically transmit a written report thereof
within 36 hours of receiving the information concerning the
incident. The mandated reporter may include with the report any
nonprivileged documentary evidence the mandated reporter possesses
relating to the incident.
(1) 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 or neglect. For the purpose of
this article, the pregnancy of a minor does not, in and of itself,
constitute a basis for a reasonable suspicion of sexual abuse.
(2) The 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.
(3) A report made by a mandated reporter pursuant to this section
shall be known as a mandated report.
(b) Any mandated reporter who fails to report an incident of known
or reasonably suspected child abuse or neglect as required by this
section is guilty of a misdemeanor punishable by up to six months
confinement in a county jail or by a fine of one thousand dollars
($1,000) or by both that imprisonment and fine. If a mandated
reporter intentionally conceals his or her failure to report an
incident known by the mandated reporter to be abuse or severe neglect
under this section, the failure to report is a continuing offense
until an agency specified in Section 11165.9 discovers the offense.
(c) (1) A clergy member who acquires knowledge or a reasonable
suspicion of child abuse or neglect during a penitential
communication is not subject to 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.
(2) Nothing in this subdivision shall be construed to modify or
limit a clergy member's duty to report known or suspected child abuse
or neglect when the clergy member is acting in some other capacity
that would otherwise make the clergy member a mandated reporter.
(3) (A) On or before January 1, 2004, a clergy member or any
custodian of records for the clergy member may report to an agency
specified in Section 11165.9 that the clergy member or any custodian
of records for the clergy member, prior to January 1, 1997, in his or
her professional capacity or within the scope of his or her
employment, other than during a penitential communication, acquired
knowledge or had a reasonable suspicion that a child had been the
victim of sexual abuse that the clergy member or any custodian of
records for the clergy member did not previously report the abuse to
an agency specified in Section 11165.9. The provisions of Section
11172 shall apply to all reports made pursuant to this paragraph.
(B) This paragraph shall apply even if the victim of the known or
suspected abuse has reached the age of majority by the time the
required report is made.
(C) The local law enforcement agency shall have jurisdiction to
investigate any report of child abuse made pursuant to this paragraph
even if the report is made after the victim has reached the age of
majority.
(d) 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 practicably possible, by telephone,
fax, or electronic transmission and shall prepare and send
, fax, or electronically submit 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.
(e) Any mandated reporter who knows or reasonably suspects that
the home or institution in which a child resides is unsuitable for
the child because of abuse or neglect of the child shall bring the
condition to the attention of the agency to which, and at the same
time as, he or she makes a report of the abuse or neglect pursuant to
subdivision (a).
(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 or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9.
(g) When two or more persons, who are required to report, jointly
have knowledge of a known or suspected instance of child abuse or
neglect, and when there is agreement among them, the telephone report
may be made by a member of the team selected by mutual agreement and
a single report may be made and signed by the selected member of the
reporting team. Any member who has knowledge that the member
designated to report has failed to do so shall thereafter make the
report.
(h) (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.
(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.
(3) Reporting the information regarding a case of possible child
abuse or neglect to an employer, supervisor, school principal, school
counselor, coworker, or other person shall not be a substitute for
making a mandated report to an agency specified in Section 11165.9.
(i) A county probation or welfare department shall immediately, or
as soon as practicably possible, report by telephone, fax, or
electronic transmission 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 or neglect, 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
or probation department. A county probation or welfare department
also shall send, fax, or electronically transmit a written report
thereof within 36 hours of receiving the information concerning the
incident to any agency to which it makes a telephone report under
this subdivision.
(j) A law enforcement agency shall immediately, or as soon as
practicably possible, report by telephone , fax, or electronic
transmission 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 or neglect reported to it,
except acts or omissions coming within subdivision (b) of Section
11165.2, which shall be reported only to the county welfare or
probation department. A law enforcement agency shall report to the
county welfare or probation department every known or suspected
instance of child abuse or neglect 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, fax, or
electronically transmit a written report thereof within 36 hours of
receiving the information concerning the incident to any agency to
which it makes a telephone report under this subdivision.
11165.9. Reports of suspected child abuse or neglect shall be
made by mandated reporters to any police department or sheriff's
department, not including a school district police or security
department, county probation department, if designated by the county
to receive mandated reports, or the county welfare department. Any of
those agencies shall accept a report of suspected child abuse or
neglect whether offered by a mandated reporter or another person, or
referred by another agency, even if the agency to whom the report is
being made lacks subject matter or geographical jurisdiction to
investigate the reported case, unless the agency can immediately
electronically transfer the call to an agency with proper
jurisdiction. When an agency takes a report about a case of suspected
child abuse or neglect in which that agency lacks jurisdiction, the
agency shall immediately refer the case by telephone, fax, or
electronic transmission to an agency with proper jurisdiction. A
police department or sheriff's department that receives a report
pursuant to this section shall transmit that report to the county
welfare office within 60 minutes of receiving the report.
SEC. 2. Section 827 of the Welfare and Institutions Code is
amended to read:
827. (a) (1) Except as provided in Section 828, a case file may
be inspected only by the following:
(A) Court personnel.
(B) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(C) The minor who is the subject of the proceeding.
(D) His or her parents or guardian.
(E) The attorneys for the parties, and judges, referees, other
hearing officers, probation officers and law enforcement officers who
are actively participating in criminal or juvenile proceedings
involving the minor.
(F) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(G) Mandated reporters, as defined in Section 11165.9 of the
Penal Code.
(H) The State Department of Social Services to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12 of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements.
(I) To authorized legal staff or special investigators who are
peace officers who are employed by, or who are authorized
representatives of, the State Department of Social Services, as
necessary to the performance of their duties to inspect, license, and
investigate community care facilities, and to ensure that the
standards of care and services provided in those facilities are
adequate and appropriate and to ascertain compliance with the rules
and regulations to which the facilities are subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 3
(commencing with Section 1500) and Chapter 3.4 (commencing with
Section 1596.70) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
shall not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services shall not contain the name of the minor.
(J) Members of children's multidisciplinary teams, persons or
agencies providing treatment or supervision of the minor.
(K) A judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation, or
both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of Division 8
of the Family Code, a court-appointed evaluator or a person
conducting a court-connected child custody evaluation, investigation,
or assessment pursuant to Section 3118 of the Family Code, and
counsel appointed for the minor in the family law case pursuant to
Section 3150 of the Family Code. Prior to allowing counsel appointed
for the minor in the family law case to inspect the file, the court
clerk may require counsel to provide a certified copy of the court
order appointing him or her as the minor's counsel.
(L) Juvenile justice commissions as established under Section 225.
The confidentiality provisions of Section 10850 shall apply to a
juvenile justice commission and its members.
(M) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) Notwithstanding any other law and subject to subparagraph (A)
of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, which pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing that
release of the juvenile case file or any portion thereof is
detrimental to the safety, protection, or physical, or emotional
well-being of another child who is directly or indirectly connected
to the juvenile case that is the subject of the petition.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (L), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, shall not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile case
file, shall not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in subdivision (b), the superintendent
shall maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision (b)
shall include on the face sheet the school at which the minor is
currently enrolled. The county superintendent shall provide the court
with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of each
district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from the
court shall be kept in a separate confidential file at the school of
attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
the age of 18, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date by
which a record required to be destroyed by this section should have
been destroyed, the minor or his or her parent or guardian shall have
the right to make a written request to the principal of the school
that the minor's school records be reviewed to ensure that the record
has been destroyed. Upon completion of any requested review and no
later than 30 days after the request for the review was received, the
principal or his or her designee shall respond in writing to the
written request and either shall confirm that the record has been
destroyed or, if the record has not been destroyed, shall explain why
destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that
case or made available to the probation
officer in making his or her report, or to the judge, referee, or
other hearing officer, and thereafter retained by the probation
officer, judge, referee, or other hearing officer.
SEC. 3.
If the Commission on State Mandates determines that this act
contains 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.