BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 1022 (Steinberg) 2
As Amended March 27, 2007
Hearing date: April 10, 2007
Penal Code
AA:mc
CHILD ABUSE CENTRAL INDEX :
MINORS
HISTORY
Source: Children's Law Center of Los Angeles; County Welfare
Director's Association
Prior Legislation: None
Support: Conference of Delegates of California Bar Association;
AFSCME, AFL-CIO; Taxpayers for Improving Public Safety
Opposition:California District Attorneys Association
KEY ISSUES
SHOULD A PERSON BE REMOVED FROM THE CHILD ABUSE CENTRAL INDEX WHERE
HE OR SHE ARE LISTED AS A PERPETRATOR OF CHILD ABUSE DUE TO AN
INCIDENT THAT OCCURRED WHEN THEY WERE A MINOR AND THE INCIDENT DID
NOT RESULT IN A DELINQUENCY ADJUDICATION OR A CONVICTION?
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SHOULD LAW ENFORCEMENT BE REQUIRED TO NOTIFY A MINOR'S PARENTS OR
GUARDIAN, AS SPECIFIED, IF THE MINOR IS BEING REPORTED TO THE CHILD
ABUSE CENTRAL INDEX AS A KNOWN OR SUSPECTED CHILD ABUSER?
PURPOSE
The purpose of this bill is to revise the Child Abuse Neglect
and Reporting Act's provisions concerning the Child Abuse
Central Index ("CACI") as follows: 1) require the removal of a
person's name and all other information concerning a reported
incident from CACI no later than 30 days after the person's 18th
birthday where the person is listed in CACI as a perpetrator of
child abuse due to an incident that occurred when the person was
less than 18 years of age and the incident did not result in a
delinquency adjudication or criminal conviction; and 2) require
law enforcement to notify a minor's current caregiver, the
minor's parents or legal guardian, the minor's attorney, and the
minor's guardian ad litem, if any, if the minor is being
reported to CACI as a known or suspected child abuser.
Current law establishes the Child Abuse and Neglect Reporting
Act ("CANRA"), which generally is intended to protect children
from abuse and neglect. (Penal Code 11164.)
Current law requires the Department of Justice ("DOJ") to
"maintain an index of all reports of child abuse and severe
neglect" submitted pursuant to the mandatory reporting laws.
The index shall be continually updated by DOJ and shall not
contain any reports that are determined to be unfounded. (Penal
Code 11170(a)(1).)
Current law provides that DOJ "shall act only as a repository of
reports of suspected child abuse and severe neglect to be
maintained in the Child Abuse Central Index . . . . The
submitting agencies are responsible for the accuracy,
completeness, and retention of the reports described in this
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section. The department shall be responsible for ensuring that
the Child Abuse Central Index accurately reflects the report it
receives from the submitting agency." (Penal Code
11170(a)(2).)
Current law applies the following definitions for purposes of
CANRA and the Child Abuse Central Index ("CACI"):
"Unfounded report" means a report that is determined by
the investigator who conducted the investigation to be
false, to be inherently improbable, to involve an
accidental injury, or not to constitute child abuse or
neglect, as defined in Section 11165.6.
"Substantiated report" means a report that is determined
by the investigator who conducted the investigation to
constitute child abuse or neglect, as defined in Section
11165.6, based upon evidence that makes it more likely than
not that child abuse or neglect, as defined, occurred.
"Inconclusive report" means a report that is determined
by the investigator who conducted the investigation not to
be unfounded, but the findings are inconclusive and there
is insufficient evidence to determine whether child abuse
or neglect, as defined in Section 11165.6, has occurred.
(Penal Code 11165.12.)
Current law requires specified law enforcement agencies to
forward to DOJ a report in writing of every case it investigates
of known or suspected child abuse or severe neglect which is
determined not to be unfounded, as specified. An agency shall
not forward a report to DOJ unless it has conducted an active
investigation and determined that the report is not unfounded.
If a report has previously been filed which subsequently proves
to be unfounded, the Department of Justice shall be notified in
writing of that fact and shall not retain the report. (Penal
Code 11169(a).)
Current law requires that information from an inconclusive or
unsubstantiated report be deleted
from CACI after 10 years if no subsequent report concerning the
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same suspected child abuser is received within that time period.
(Penal Code 11170(a)(3).)
Current law provides that "(i)f a person is listed in the Child
Abuse Central Index only as a victim of child abuse or neglect,
and that person is 18 years of age or older, that person may
have his or her name removed from the index by making a written
request to the Department of Justice. The request shall be
notarized and include the person's name, address, social
security number, and date of birth." (Penal Code 11170(f).)
This bill would provide in addition that if "a person is listed
in the Child Abuse Central Index as a perpetrator of child abuse
due to an incident that occurred when the person was less than
18 years of age, and the incident did not result in a
delinquency adjudication or criminal conviction, the person's
name and all other information concerning the reported incident
shall be removed from the index no later than 30 days after the
person's 18th birthday."
Current law requires specified law enforcement agencies who
forward a report in writing to DOJ to also notify in writing the
known or suspected child abuser that he or she has been reported
to the Child Abuse Central Index. (Penal Code 11169(b).)
This bill would provide that, if the known or suspected child
abuser is a minor, the agency shall notify the minor's current
caregiver, the minor's parents or legal guardian, the minor's
attorney, and the minor's guardian ad litem, if any.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
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significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
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<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
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<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not appear to aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1. Stated Need for This Bill
The author has provided the following statement concerning the
need for this bill:
Minors are sometimes listed on the statewide Child
Abuse Central Index ("CACI") as perpetrators of
"sexual abuse," due to a report of sexual behavior
between the child and another child. Abused and
neglected children in foster care are especially
likely to end up being listed as perpetrators on
the CACI. Often the listing of the child occurs
without any effective notice to the child, the
parents or caregivers, or the child's attorney if
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<5> Primer, supra fn. 4.
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the child has one. Children are listed on the
CACI even in cases where no criminal or
delinquency charges are filed, solely on the basis
of an investigation concluding that the allegation
of "sexual abuse" is either substantiated or
inconclusive. In light of the tremendous
implications a CACI listing can have for the
child's future, greater protections are needed.
2. What This Bill Would Do
As explained in detail above, DOJ maintains the Child Abuse
Central Index ("CACI"), which is a "statewide reference file"<6>
intended to refer authorized individuals or entities to
underlying child abuse investigative reports maintained at the
reporting agency. As noted in Comment 3 below, there are
hundreds of thousands of names in CACI.
This bill would do two things:
require the removal of a person's name and all other
information concerning a reported incident from CACI no
later than 30 days after the person's 18th birthday where
the person is listed in CACI as a perpetrator of child
abuse due to an incident that occurred when the person was
less than 18 years of age and the incident did not result
in a delinquency adjudication or criminal conviction; and
require law enforcement to notify a minor's current
caregiver, the minor's parents or legal guardian, the
minor's attorney, and the minor's guardian ad litem, if
any, if the minor is being reported to CACI as a known or
suspected child abuser.
The sponsors of this bill submit that the lifetime consequence
of a CACI listing for children is inappropriate and unfair:
First, it is troubling that the CACI statute does
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<6> California Code of Regulations ("CCR"), tit. 11, 900.
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not provide any guidance as to how investigators
are to determine when a minor is a "perpetrator"
of sexual abuse. This is especially problematic
when the minors involved in an incident are of
similar ages, the conduct is consensual sexual
behavior between two minors in a romantic
relationship, or the conduct is sexual acting-out
or sexually reactive behavior triggered by past
abuse. The risk of arbitrary and inconsistent
reporting seems unavoidable. Some minors may be
listed on the CACI while others who engage in
similar or more serious conduct are not listed.
Second, for minors in foster care under the
jurisdiction of the dependency court, the
possibility of being listed on the database
because of an incident that they themselves
disclose seems contrary to the strong policy
protecting the privacy of dependent minors,
encouraging honest and open communication between
children and social workers who seek to help them,
and requiring county agencies and juvenile courts
to protect the child's best interests.
SHOULD PERSONS WHO WERE ADDED TO CACI AS MINORS BE REMOVED FROM
CACI ONCE THEY TURN 18 IF NO JUVENILE OR CRIMINAL PROCEEDINGS
RESULTED THE INCIDENT WHICH WAS THE BASIS FOR THE CACI REPORT?
3. Suggested Potential Amendments
As currently drafted the bill's proposed language to remove
certain minors from CACI refers to a "perpetrator" of child
abuse. CACI, however, is not an index which contains only
persons who have been convicted or adjudicated for criminal
conduct. The author may wish to clarify this language and
instead refer to a "suspect in a child abuse investigation."
SHOULD THIS CLARIFYING AMENDMENT BE MADE?
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In addition, the author may wish to clarify the scope of this
bill's requirement with respect to removing certain persons from
CACI based on incidents that occurred when they were minors. As
currently drafted, the bill would appear to require DOJ to cull
through the entire CACI database to find persons who are
required to be removed from the index. As noted below, CACI is
a large database which may not be technically capable of the
kind of filtering this bill would require. As an alternative,
the author may wish to work with DOJ in exploring the viability
of revising this provision to narrow its application to 1)
eligible persons who ask DOJ to remove them from CACI, including
provisions for DOJ to obtain necessary information from the law
enforcement agency that made the original CACI report; and 2)
eligible persons who, from a date certain forward, are added to
CACI (assuming the CACI database can be manipulated to flag
persons who may be eligible for removal from the index when they
turn 18).
4. Background: Child Abuse Central Index
DOJ indicates that the Child Abuse Central Index ("CACI")
contains the following aggregate information:
Number of Reports in CACI = 773,473
Number of Suspects in CACI = 816,468
Number of Victims in CACI = 995,612
CACI was created in 1965 as a centralized system for collecting
reports of suspected child abuse from law enforcement agencies,
physicians, teachers and others. Access to CACI initially was
limited to official investigations of open child abuse cases,
but in 1986 the Legislature expanded access to allow the
Department of Social Services (DSS) to use the information for
running
background checks on applications for licenses, adoptions, and
employment in child care and related services positions. DOJ
provides the following summary of CACI on its current website:
The Attorney General's Child Protection Program
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administers the Child Abuse Central Index, which
was created by the Legislature in 1965 as a tool
for state and local agencies to help protect the
health and safety of California's children.
Each year, approximately 38,000 child abuse
investigations are reported to the Child Abuse
Central Index. These reports pertain to
investigations of alleged physical abuse, sexual
abuse, mental/emotional abuse, and/or severe
neglect of a child. The reports are submitted by
police, sheriff's, county welfare and probation
departments.
To aid law enforcement investigations and
prosecutions, the Child Protection Program makes
information from the Child Abuse Central Index
available, including notices of new child abuse
investigation reports involving the same reported
suspects and/or victims. Information also is
provided to designated social welfare agencies to
help screen applicants for licensing or employment
in child care facilities and foster homes, and to
aid in background checks for other possible child
placements, and adoptions. Dissemination of Index
information is restricted and controlled by the
Penal Code.
Information on file in the Child Abuse Central
Index include:
Names and personal descriptors of the
suspects and victims listed on reports;
Reporting agency that investigated the
incident;
The name and/or number assigned to the
case by the investigating agency;
Type(s) of abuse investigated; and
The findings of the investigation for the
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incident, which is either substantiated or
inconclusive.
It is important to note that the effectiveness of
the index is only as good as the quality of the
information reported. Each reporting agency is
required by law to forward to DOJ a summary of
every child abuse incident it investigates, unless
the incident is determined to be unfounded or
general neglect. Each reporting
agency is responsible for the accuracy,
completeness and retention of reports
submitted.<7>
As illustrated above, CACI is set up to be a directory that
tells investigators where they can obtain source information
about child abuse reports, rather than providing the information
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<7> See http://ag.ca.gov/childabuse.
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itself.<8>
5. Background: CACI Criticism and Controversy
The Child Abuse Central Index has been the object of criticism
and controversy by some for over a decade. Several years ago a
law review article described some of the problems associated
with indices such as CACI:
Reports of child abuse and neglect continue to
rise in America. Yet only a minority of those
reports which are investigated by child welfare
agencies are actually substantiated. In fact,
there has been "a steady increase in the number
and percentage of unfounded reports since 1976
when approximately 35% of reports were unfounded.
. . . Today about 60% of all child abuse cases
are classified as "unfounded' or
"unsubstantiated.'" However, because of the
difficulty of proving child abuse, a finding that
a report is "unsubstantiated" does not necessarily
mean that abuse did not occur. Thus, every state
has faced the dilemma of balancing the need to
adequately protect children by collecting and
investigating reports of child abuse and neglect
with the need to provide those accused of abuse
sufficient due process protection.
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<8> California Code of Regulations ("CCR"), tit. 11, 902
states: "The purpose of (CACI) is to serve as the index of
investigated reports of suspected child abuse and severe neglect
maintained by DOJ pursuant to Penal Code section 11170(a). The
(CACI) consists only of those reports of child abuse and severe
neglect that meet the criteria specified in the Child Abuse and
Neglect Reporting Act (Penal Code section 11164 , et seq.) and
that are complete as specified by these regulations. The (CACI)
is a reference file and is used to refer authorized individuals
or entities to the underlying child abuse investigative report
maintained at the reporting agency. It is the responsibility of
authorized individuals or entities to obtain and review the
underlying investigative report and make their own assessment of
the merits of the child abuse report. They shall not act solely
upon (CACI) information." See also 11 CCR 904: "All
submissions received by DOJ staff are reviewed to determine that
they meet the definition of a report in these regulations. DOJ
staff verifies only that the information entered into (CACI) is
consistent with the information as reported by the CPA. The DOJ
presumes that the substance of the information provided is
accurate and does not conduct a separate investigation to verify
the accuracy of the CPA's investigation." (emphasis added)
Today, all states have statutes making child abuse
reports and the documents filed in dependency
courts confidential. Over the past several years,
however, legislatures have continued to add to the
list of individuals excluded from the
confidentiality provisions. "The current trend
seems to be the increasing availability of child
abuse and neglect records to an expanding variety
of groups and people."
. . .
In light of the previous studies' findings of
program inadequacies and the low percentage of
cases in which the indexed data actually had an
effect on a child abuse investigation, it is
difficult to understand how the Legislature can
statutorily describe the Index as being so
successful. For example, what empirical evidence
has been presented to support the statement that
the Index has permitted "child protective agencies
to quickly and accurately identify cases of child
abuse that would otherwise go undetected"? This
statement demonstrates a significant
misunderstanding about the Index. First, the Index
merely gives the names of alleged abusers and child
victims; it does not give any details of those
cases. In order to get those details, the
investigator must contact the original social
worker to review the file.
However, in a substantial number of cases, those
files just do not exist. "The index functions as a
"pointer' file providing child abuse
investigators...with access to statewide summary
information on known or suspected child abuse.
Child abuse investigators must contact
contributing agencies for more complete
information." The study indicated that only about
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fifty percent of CPAs routinely seek to obtain
copies of the original reports and that about
thirteen percent "who had attempted to obtain one
[an original report] had a problem" in obtaining
the report. Therefore, if only fifty percent of
CPAs attempt to acquire the original social
worker's report, and in many of those cases cannot
obtain the report, one might conclude that in very
few cases are CPAs getting much relevant data by
using the Index.
Furthermore, there does not appear to be any
analysis of the California Central Index which has
studied the effectiveness of its two independent
goals: (1) providing CPA personnel tools for
investigating individual cases of alleged child
abuse; and, (2) providing licensors with
predictive data. As one commentator has recently
noted, the CPA goal of investigating a child's
case may not be compatible with the needs of
licensing agencies. "A single registry system may
not be able to meet these disparate goals."<9>
6. Background: Child Abuse and Neglect Reporting Act Task Force
Report
Partially in response to the criticisms noted above, in 2002 the
Legislature passed legislation establishing a task force "for
the purpose of reviewing (CANRA) and addressing the following:
(1) The value of the Child Abuse Central Index in
protecting children.
(2) Changes needed with respect to the Child Abuse and
Neglect Reporting Act, including but not limited to, the
operation of the Child Abuse Central Index." (Penal Code
11174.4(a).)
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<9> Pandora's Box: Opening Child Protection Cases to the Press
and Public (1999/2000)( 27 W. St. U.L. Rev. 181(citations
omitted), William Wesley Patton, Professor, Whittier Law School.
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The Task Force met throughout 2003, and produced its report in
March of 2004. The Task Force formed three subcommittees to
address due process, investigations and definitions. A total of
fourteen meetings, nine by the full Task Force and five by its
subcommittees, were held.
In 2004, SB 1313 (Kuehl) was enacted into law. That measure,
sponsored by DOJ, was intended to reflect recommendations made
in the report.<10> The bases for the specific proposals
contained in that bill were explained in detail in the Task
Force's Report.<11>
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<10> The 2002 Task Force was not the first time CACI was
reviewed. In 1988, legislation was enacted to require DOJ to
conduct a study of CACI. (SB 2457 (Russell)(Ch. 1497, Stats.
1988). That study, which was published in 1990, centered on
issues such as purging old reports, defining terms like
"substantiated," "unsubstantiated," and "unfounded," notifying
persons that their names are on CACI, and establishing a
procedure for persons to contest their inclusion on CACI. With
the exception of establishing a hearing process for persons
wishing to be removed from CACI, many of the reforms recommended
by this task force were made in the 1990s. Legislation enacted
in 1997 required that persons be notified if they have been
reported to CACI; established a procedure for persons to
determine if they are listed on CACI; established a 10-year
purge mandate for inconclusive or unsubstantiated reports where
no subsequent report concerning the same suspect is received;
and established a basis for victims to have their names removed
from CACI once they turn 18. Since the enactment of the 1997
reforms, DOJ also has promulgated regulations tightening its
CACI procedures. (See California Code of Regulations ("CCR"),
Tit. 11, 900 et seq.)
<11> See "Proposed Statutory Amendments to the Child Abuse and
Neglect Report Act," prepared by Julie Hokans, Deputy Attorney
General, CANRA Task Force Staff, Task Force Report at p. 26 et
seq. (March 2004).
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