BILL NUMBER: AB 776 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 6, 2005
AMENDED IN ASSEMBLY APRIL 28, 2005
INTRODUCED BY Assembly Member Chu
(Coauthor: Assembly Member Cohn)
FEBRUARY 18, 2005
An act to amend Section 11165.9 Sections
11165.9 and 11166 of the Penal Code, relating to child abuse
reporting.
LEGISLATIVE COUNSEL'S DIGEST
AB 776, as amended, Chu. Child abuse reporting.
Existing law requires certain persons to report incidents of
suspected child abuse to specified authorities
agencies by telephone and also by written report
thereof within 36 hours . Existing law also requires
certain agencies to accept reports of suspected child abuse even if
those agencies lack jurisdiction to investigate, unless the agency
can immediately refer the report of suspected child abuse to the
agency with proper jurisdiction.
This bill would require those agencies to keep a log of all
reports received for further evaluation and investigation, as
specified. This bill would also specify that the
agencies required to accept reports of suspected child abuse
submitted by mandated reports accept telephone, facsimile, and
electronically transmitted reports of suspected child abuse
if after reasonable efforts, a mandated reporter is unable to
submit a report by telephone, he or she shall immediately or as soon
as is practicably possible make a one-time automated written report
and be available to respond to telephone follow-up by the agency with
which he or she filed the report, as specified . This
bill would provide that these reports would be captured in
the Child Welfare Services/Case Management System and would provide
that these provisions would not become operative until that system is
updated as necessary and would become inoperative 3 years thereafter
or on January 1, 2009, whichever occurs first. This bill would also
require the Department of Justice to submit a report reflecting the
reasons stated by mandated reporters for filing a one-time automated
written report in lieu of the initial telephone report, as specified.
Because this bill would require local officials to perform
additional duties and because failure of a mandated reporter to make
a report as specified is a crime, this bill would impose a
state-mandated local program.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B 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 XIII B of the California Constitution.
However, 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.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
The Legislature finds and declares all of the following:
(a) Mandated reporters, as defined in Section 11165.7 of the Penal
code, are required to submit reports of child abuse or suspected
child abuse to agencies prescribed in the following section, by an
initial telephone report and a written follow-up report.
(b) Initial telephone reports of child abuse or suspected child
abuse are the preferred method of reporting because the screener
answering the call from the mandated reporter has the opportunity to
assess the validity and seriousness of the report for purposes of
expediting further investigation. In addition, telephone reporting
allows for screeners to aks for additional known information from the
mandated reporters that might not otherwise be conveyed in a written
report.
(c) By allowing reports of child abuse or suspected child abuse to
be received by a means that excludes the initial telephone report
the agency receiving the report loses an essential tool in expediting
child abuse investigations: the ability to assess the situation
through direct contact with the mandated reporter. Therefore,
situations in which the initial telephone report can not be received
should be remedied and reduced to the extent possible in order to
strengthen the child abuse reporting safety net set forth in statute.
SECTION 1.
SEC. 2. Section 11165.9 of the Penal Code is amended to
read:
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 telephone, facsimile, or
electronically transmitted 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.
The agency shall keep a log of the reports received, regardless of
merit, for further evaluation and investigation, as necessary, on a
case by case basis. Under no circumstances are agencies or employees
of agencies required to receive reports of child abuse or suspected
child abuse to refuse to take a report of child abuse or suspected
child abuse from a mandated reporter.
SEC. 3. 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 an initial report
to the agency immediately or as soon as is practicably possible by
telephone, and the mandated reporter shall prepare and send a written
follow-up report thereof within 36 hours of receiving the
information concerning the incident. The mandated reporter may
include with the report any nonprivileged documentary evidence the
mandated reporter possesses relating to the incident.
(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 Any report made by a mandated
reporter pursuant to this section shall be known as a mandated
report.
(b) If after reasonable efforts a mandated reporter is unable
to submit an initial report by telephone, he or she shall
immediately or as soon as is practicably possible, by fax or
electronic transmission, make a one-time automated written report on
the form prescribed by the Department of Justice, and shall also be
available to respond to a telephone follow-up call by the agency with
which he or she filed the report. A mandated reporter who files a
one-time automated written report because he or she was unable to
submit an initial report by telephone is not required to
submit a written follow-up report.
(1) The one-time automated written report form prescribed by the
Department of Justice shall be clearly identifiable so that it is not
mistaken for a standard written follow-up report. In addition, the
automated one-time report shall contain a section that allows the
mandated reporter to state the reason the initial telephone call was
not able to be completed. The reason for the submission of the
one-time automated written report in lieu of the procedure prescribed
in subdivision (a) shall be captured in the Child Welfare
Services/Case Management System (CWS/CMS). The department shall work
with stakeholders to modify reporting forms and the CWS/CMS as is
necessary to accommodate the changes enacted by these provisions.
(2) This subdivision shall not become operative until the CWS/CMS
is updated to capture the information prescribed in this subdivision.
(3) This subdivision shall become inoperative three years after
this subdivision becomes operative or on January 1, 2009, which ever
occurs first.
(4) On the inoperative date of these provisions, a report shall be
submitted to the counties and the Legislature by the Department of
Justice that reflects the data collected from automated one-time
reports indicating the reasons stated as to why the automated
one-time report was filed in lieu of the initial telephone report.
(5) Nothing in this section shall supersede the requirement that a
mandated reporter first attempt to make a report via telephone, or
that agencies specified in Section 11165.9 accept reports from
mandated reporters and other persons as required.
(c) 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)
(d) (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)
(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 practicably
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.
(e)
(f) 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)
(g) 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)
(h) 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)
(i) (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)
(j) 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)
(k) A law enforcement agency shall immediately, or as
soon as practicably 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 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.
SEC. 4.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B 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 XIII B of the California Constitution.
However, 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.