BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1873 A
Assembly Member Torrico B
As Amended May 26, 2006
Hearing Date: June 20, 2006 1
Health and Safety Code; Penal Code 8
GMO:rm 7
3
SUBJECT
Child Protection: Safe Surrender of Newborns
DESCRIPTION
Existing law permits the safe surrender of a newborn baby
72 hours old or younger at designated sites and insulates
the person surrendering the baby from criminal prosecution
as long as the proper procedures under the Safely
Surrendered Baby law are followed. Last year, the sunset
date for this program was eliminated, making the program
permanent in the state.
This bill would:
allow the safe surrender of a baby up to 30 days old,
rather than 72 hours, under this program;
permit a fire agency to designate a safe surrender site,
upon approval of the local governing body; and
specify that a safe surrender site and its personnel have
no liability for a surrendered child prior to taking
actual physical custody of the child.
BACKGROUND
SB 1368 (Brulte, Chapter 824, Statutes of 2000) enacted the
Safely Surrendered Baby law, which allows the surrender of
a newborn by a parent or other responsible person to a safe
surrender site, where the abandoned newborn may receive
medical and other care until the county takes over custody
(more)
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of the newborn. That bill was introduced to provide
mothers of unwanted newborns a safe alternative to
abandonment of the child in trash bins, alleys, or other
places where the babies would be unprotected and could die.
It was spurred by a group that retrieved dead abandoned
babies from county morgues and buried them in a specially
designated cemetery.
In order to reduce the number of babies abandoned in such a
manner and give the babies a chance to survive, SB 1368
provided a safe place (such as an emergency room of a
hospital) where a person may surrender the baby and, if
there is a change of heart, may retrieve the baby within a
specified time. The bill also provided immunity from
criminal prosecution for violation of the child abandonment
laws to the person who safely surrendered the newborn. To
get the bill enacted, a sunset date of January 1, 2006 was
amended into the bill. Last year, SB 116 (Dutton, Chapter
625, Statutes of 2005) removed the sunset date on the law,
making it permanent.
SB 1368 also contained reporting provisions that required
the Department of Social Services (DSS) to report to the
Legislature biennially on various data related to the
effectiveness and continuing need for the Safely
Surrendered Baby law.
According to the latest DSS Report dated January, 2005, the
number of infants surrendered under the Safely Surrendered
Baby law total 64 (up to September 2004), of which 39
babies were several hours old, 16 were one day (24 hours)
old, 6 were two days (48 hours) old, and three were three
days (72 hours) old.
CHANGES TO EXISTING LAW
Existing law makes it a crime for a parent or other person
entrusted with a child younger than 14 years of age to
abandon the child [Penal Code Sec. 271.] and to fail to
provide for the child or to present the child to an
orphanage or similar institution as an orphan [Penal Code
Sec. 271a.].
Existing law makes it a crime for a parent willfully to
fail, without lawful excuse, to provide a child with
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necessary food, shelter, medical assistance, or other
remedial care. [Penal Code Sec. 270.]
Existing law protects from prosecution under the state's
child abandonment laws a parent or other person having
lawful custody of a child 72 hours or younger, who
voluntarily surrenders physical custody of the child to
personnel on duty at a safe surrender site. [Penal Code
Sec. 271.5.]
Existing law provides a procedure for the surrender of
newborns 72 hours or younger by a parent or other
responsible person at a hospital or a site (safe surrender
site) designated by the county, without incurring criminal
liability under the state's child abandonment laws. [Health
& Safety Code Sec. 1255.7.]
This bill would allow the surrender of babies up to 30 days
old by a parent or another responsible person.
Existing law authorizes a county to designate a site for
the surrender of a newborn up to 72 hours old under the
Safely Surrendered Baby law. [Health & Safety Code Sec.
1255.7(a)(1)(A).]
This bill would authorize a local fire agency upon approval
of the appropriate local governing body to designate a site
for the safe surrender of a newborn under the Safely
Surrendered Baby law.
COMMENT
1. Need for the bill
In January 2006, a dead infant was found in a trash bin
of a Jack-in-the-Box restaurant in Newark, California, in
the author's district. Police estimated the infant to be
less than one week old, and although it was found wrapped
in a blanket and with a pacifier, there was no evidence
that the baby was alive when it was abandoned. At the
end of January, another baby was found on the doorsteps
of a church in San Jose. The baby was reported to be two
hours old.
According to the DSS Report (January 2005), between
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October 2002 and September 2004, there were 105 abandoned
babies statewide who were found alive, and 23 abandoned
babies who were deceased. These numbers include the 52
babies who were safely surrendered during the same
period. When added to the 12 babies who were safely
surrendered in the previous reporting period (January 1,
2001 to October 21, 2002, cited in the January DSS 2003
report) there are a total of 64 babies who were
surrendered according to the protocol outlined in the
Safely Surrendered Baby (SSB) law from its inception to
this date.
According to proponents, groups that have dealt with
babies who were abandoned and died, one baby's life is
worth all the effort of educating the public about the
safe surrender law.
2. No justification for extending the SSB law to 30-day
old infants
When SB 1368 (Brulte) was enacted, it contained the
sunset clause of January 1, 2006 because at the time
there was no empirical data presented to the Legislature
that the proposal would indeed save any baby's life.
From 2000 to September 2004, the reports received from
the Department of Social Services shows a total of 64
babies safely surrendered. This justified the
elimination of the sunset date of January 1, 2006, and
made the law permanent (SB 116, Dutton, Chapter 625,
Statutes of 2005).
The DSS Reports on those 64 safely surrendered babies
show that 39 were several hours old, 16 were one day old,
six were two days old, and three were three days old.
During the four-year period (2001 to 2004) there were a
total of 105 babies abandoned and found alive (not
including the 52 that were safely surrendered). In fact,
the number of abandoned/alive babies declined during that
period (30 in 2001, 33 in 2002, 25 in 2003, and 17 in
2004), when the education campaign on the SSB law went
into full swing. The state compiles no other statistics
or studies that show any number of babies being abandoned
at ages older than 72 hours, except that the rest of the
abandoned/alive babies (105) range in age up to one year.
The abandoned children include those who were found by
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law enforcement or by other agencies or were taken by
child protective services after receiving reports of
abandonment.
This bill would expand the SSB law by allowing babies up
to 30 days old to be surrendered by a parent or other
responsible person, without exposure to criminal penalty
under the child abandonment laws. Proponents contend
this is necessary in order to "improve on current
law,"giving children up to one month old "a better
opportunity to be safely surrendered rather than
abandoned in an unsafe location." Yet none of the
anecdotal evidence (news clips) provided by the
proponents identify an abandoned or surrendered baby as
being more than a few days old.
The National Adoption Information Clearinghouse
identifies 16 states that provide for safe surrender of
babies up to 72 hours old, and 12 states that provide for
babies up to 30 days old. Four states allow the surrender
of babies up to 14 days old, and five states use seven
days as the cut-off age for the infant to be safely
surrendered. The rest of the states (eight) vary from
five days to one year. Only 46 states have SSB laws.
IS IT NECESSARY TO EXPAND THE SAFELY SURRENDERED BABY LAW
TO ALLOW THE SURRENDER OF THIRTY-DAY OLD INFANTS?
According to the California Welfare Directors
Association, a group that supported the passage of the
original bill that enacted the SSB law, 30 days is an
unnecessary expansion of current law and therefore
opposes this bill.
The safe-surrender law is primarily targeted toward
pregnant women who are in severe crisis, placing
their newborn babies at imminent risk of harm.
California law seeks to balance the rights of both
parents with the need to keep babies safe.
Research indicates that some women are in such
denial about their pregnancy that the newborn is at
great risk of being killed or abandoned shortly
after birth. However, we know of no research
suggesting that the same risk factors continue to
exist for babies beyond the first few days of life?
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For children who are older than a few days, the
existing voluntary relinquishment process enables
parents to voluntarily free their children for
adoption. Voluntary relinquishment offers
safeguards to birth parents, the child and the
adoptive parents.
The California State Association of Counties (CSAC) also
believes that the bill goes too far in its proposed
expansion of the SSB law. "?given the target population:
women who are in a severe and immediate crisis placing
their newborn baby at imminent risk of harm?Current law
seeks to balance the rights of both mothers and fathers
with the need to keep the babies safe. We believe that
the proposed 30-day time period may infringe on fathers'
rights." Child protective services are provided by the
county, once the surrendered newborn is transferred to
the county by the safe surrender site personnel.
Another perspective on the extension of the 72-hour age
limit to the 30-day limit was provided by the Los Angeles
County District Attorney's Association (LACDA). While
the LACDA initially opposed the passage of SB 1368, it
capitulated in the end to reach a consensus: "all
parties recognized that many of the children who were
historically abandoned or killed were the offspring of
women who had these infants in secrecy. They had no
support system and others did not know of the pregnancy
and could not provide aid? Under the proposed 30-day
surrender, the issue of the birth in secrecy would not be
present. It is much more difficult to hide the existence
of a baby once it has been born and lived during the
30-day period. For a mother who has given birth or
designated caregiver who cannot care for the infant after
72 hours, there are existing services in place that would
allow the safe surrender of the infant?We believe that
public awareness, rather than an expansion of the 72-hour
safe surrender period, should be the legislative
priority."
The author has submitted that a newborn is generally
defined on the Internet as "a baby from birth to four
weeks" and that the American Academy of Pediatrics
website defines a "neonate" for purposes of providing
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critical care services as "30 days of age or less."
Regardless of the definition of a "neonate" and whether
the 72-hour age limit does not meet that definition, it
should be noted that the original intent of the SSB law
was to encourage a new birth mother who does not want her
baby for whatever reason to take her baby to a safe place
rather than abandon the baby at a place where nobody
would find it and connect the baby to her. In fact, the
real incentive for this new mother, who is probably in a
state of shock, is to make her immune from criminal
prosecution for abandoning the child. The SSB law
absolves her of the responsibility for the child - if she
delivers it to a safe place within a very short period of
time. The SSB law today even gives the birth mother up
to 14 days to change her mind and retrieve her baby,
after the shock and trauma of having an unwanted baby has
settled somewhat. The SSB law was not intended to allow
her (or the other parent) to have the baby, keep it for
30 days, and then surrender the baby at a safe surrender
site expecting no questions and a get out of parenting
card for free without being prosecuted for abandonment.
By the 30th day, the 4th day, or any day in between, the
birth mother has the opportunity to surrender the baby to
the proper authorities for purposes of adoption.
3. Fire stations to designate safe surrender sites
Proponents of the bill state that more safe surrender
sites would improve the SSB law. They state that many
communities have conducted successful training of fire
station employees on the SSB law, as well as campaigns to
educate the public about this process. The January 2005
DSS Report states that SSB announcements through the
network affiliate and cable television stations, public
service announcements have reached more than 4.5 million
California households. An earlier report stated it
printed 800,000 brochures on the SSB law and distributed
about 400,000 materials through a variety of public
agencies that serve children and families.
Under existing law, a hospital is a safe surrender site,
and the county may designate other safe surrender sites
as it deems necessary. The rationale for the county
choosing the safe surrender site is that the county will
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ultimately be responsible for the safety of the child and
will take the child into its custody, temporarily until
the 14-day period for reclaiming the child has expired,
and on a more permanent basis after the initial hearing
under the Welfare and Institutions Code Sec. 300 to
declare the child a ward of the state.
Fire stations have been used in some counties as safe
surrender sites, with the cooperation of cities within
the counties. These fire stations have provided
educational campaigns and have participated successfully
in training programs on what to do should a baby be
surrendered at their site. This bill contains a
provision that would authorize a fire agency to designate
a safe surrender site upon approval by the local
governing body (by the city if the fire agency is a city
fire department; county fire agencies may already be
designated by the county). Safe surrender personnel are
trained and equipment may have to be provided onsite to
take care of any medical emergencies that a surrendered
baby may have at the time of surrender.
The clamor for fire stations to become designated sites
seems to have originated from the $5 million
appropriation that this bill originally contained to pay
for a massive statewide educational campaign, as well as
training and equipment for designated sites. Certainly,
the expansion of the SSB law to accommodate 30-day old
babies for safe surrender could necessitate more training
and equipment for participating fire agencies. Thus,
this bill's provision authorizing a fire agency to
designate one or more of its stations as safe surrender
sites would provide a short-cut for the proper
designation of a fire station (i.e., choice of a fire
station through a county-city arrangement, rather than
the fire agency choosing on its own to be one). In fact,
one proponent stated that its support is "for the
expansion of safe surrender sites to include fire
stations with paramedics or emergency medical technicians
on duty and the appropriation of funds for a statewide
awareness campaign and operation of a toll free number
for assistance." This proponent is the California
Hospital Association (whose member hospitals are already
designated safe surrender sites).
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Most of the proponents of the bill were in support
because of the $5 million appropriation to be used for
campaigns to educate the community and to assist the
expansion of safe surrender sites. The $5 million
appropriation provision has been deleted from the bill.
Given the growing paucity of hospitals, particularly in
inner cities, designation of additional safe surrender
sites in inner cities may well be appropriate. However,
such designations should probably be done in conjunction
with the city or county governments who would be asked to
foot the bill for additional training and equipment.
ARE NOT THE COUNTIES AND CITIES ALREADY ABLE TO ARRANGE
THE USE OF FIRE STATIONS AS SAFE SURRENDER SITES UNDER
EXISTING LAW?
4. Bill would provide immunity prior to taking physical
custody of a child
Current law immunizes from criminal, civil, or
administrative liability a safe surrender site or its
personnel "that accepts custody of a surrendered child?in
the good faith belief that action is required or
authorized by this section?" [Health & Safety Code Sec.
12557(h).] The immunity is qualified, as it does not
apply to liability for personal injury or wrongful death,
including injury resulting from medical malpractice. The
immunity also applies where there is good faith belief
that action is required, even in instances where the
child is older than 72 hours or the parent or individual
surrendering the child did not have lawful physical
custody of the child.
This bill would provide immunity from criminal, civil, or
administrative liability a safe surrender site or its
personnel "prior to its taking actual physical custody of
the surrendered child."
This is an unnecessary addition to the law. Until the
safe surrender site or personnel accepts the child into
its custody, it has no obligation and therefore no
exposure to liability whatsoever. Accepting the child
into its custody has, from the inception of the SSB law,
meant "physical custody," as nobody but the person
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surrendering the child could claim any lawful custody
rights to the child for purposes of the SSB law. In fact
all other subdivisions in the section refer to the
physical custody of the child. Once the safe surrender
site or its personnel accepts custody, then the duties
relating to caring for the child come into play, and so
does the qualified immunity rule.
The author and proponents have provided no basis nor
rationale for this apparently unnecessary immunity.
ARE THERE ISSUES THAT ARISE PRIOR TO TAKING CUSTODY THAT
REQUIRE THE ENACTMENT OF AN EXPRESS IMMUNITY?
DO SOME SITES REJECT SAFE SURRENDER DESIGNATION OR
OTHERWISE EXERCISE SOME DISCRETION THAT MIGHT INVOLVE
NEGLIGENCE?
SHOULD THIS PROVISION BE DELETED FROM THE BILL?
Support: California State PTA; League of California
Cities; California District Attorneys Association;
California Medical Association; California Hospital
Association; American College of Emergency
Physicians State Chapter of California; National
Association of Social Workers, California Chapter;
American Federation of State, County and Municipal
Employees Assn., AFL-CIO (AFSCME); California
Catholic Conference; California Commission on the
Status of Women; California Fire Chiefs
Association; City of Ontario; City of Vista;
California State Firefighters Association
Opposition: California Welfare Directors Association; Los
Angeles County District Attorney's Office;
California State Association of Counties
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: SB 1368 (Brulte, Ch. 824, Stats. of
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2000). [See Background.]
SB 139 (Brulte, Ch.150, Stats. of 2002)
extended immunity to persons assisting the
parent or person who is surrendering the
baby by transporting the parent or the
person with custody of the newborn.
SB 116 (Dutton, Ch. 625, Stats. of 2005).
[See Background.]
Prior Vote: Asm. Pub. S. (Ayes 4, Noes 1)
Asm. Hum. S. (Ayes 6, Noes 0)
Asm. Appr. (Ayes 14, Noes 3)
Asm. Flr. (Ayes 73, Noes 6)
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