BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 247 (Emmerson)
As Introduced February 10, 2009
Hearing date: June 9, 2009
Penal Code
AA:mc
CHILD ABUSE:
CHILD ABUSE CENTRAL INDEX
HISTORY
Source: California Association of Marriage and Family
therapists
Prior Legislation: None
Support: Unknown
Opposition:None known
Assembly Floor Vote: Ayes 79 - Noes 0
KEY ISSUE
SHOULD THE CHILD ABUSE CENTRAL INDEX LAW BE CHANGED TO CLARIFY THAT
REPORTING AGENCIES MUST SHARE RELEVANT INFORMATION PROVIDED BY THE
DEPARTMENT OF JUSTICE ABOUT A REPORTED INSTANCE OF ABUSE OR NEGLECT
WITH THE REPORTING HEALTH CARE PRACTITIONER WHO IS TREATING A PERSON
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REPORTED AS AN ABUSE OR NEGLECT VICTIM?
PURPOSE
The purpose of this bill is to clarify an agency that has
reported an instance of known or suspected child abuse or
neglect to the Department of Justice ("DOJ") must make
information received from DOJ relevant to the known or suspect
instance of abuse or neglect available to the reporting health
care practitioner who is treating a person reported as an abuse
or neglect victim, and to make an additional related technical
revision to the law in this area.
Current law requires the Department of Justice ("DOJ") to
maintain an index of all reports of child abuse and severe
neglect ("CACI") submitted by specified reporting agencies.
CACI shall be continually updated and shall not contain any
reports determined to be unfounded. (Penal Code 11170(a)(1).)
Current law requires specified reporting agencies to forward to
DOJ a report of every case of suspected child abuse or neglect
which is determined not to be unfounded, as defined; if a
previously filed report proves to be unfounded, the DOJ shall be
notified in writing and shall not retain that report. (Penal
Code 11169(a).)
Current law requires at the time a reporting agency forwards a
report of suspected child abuse or neglect to the DOJ, the
agency must notify the known or suspected child abuser that he
or she has been reported to CACI. (Penal Code 11169(b).)
Current law states that the DOJ shall act only as a repository
of the suspected child abuse or neglect reports that are
maintained in CACI, and that the reporting agencies are
responsible for the accuracy, completeness, and
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retention of reports. (Penal Code 11170(a)(2).)
Current law requires that information from an inconclusive or
unsubstantiated suspected child abuse or neglect report shall be
deleted from CACI after 10 years if no subsequent report
concerning the suspected child abuser is received within the
10-year period. (Penal Code 11170(a)(3).)
Current law defines the following types of suspected child abuse
or neglect reports:
a) An "unfounded report" is a report that is
determined by the investigator to be false, inherently
improbable, an accidental injury, or not to constitute
child abuse or neglect, as defined.
b) A "substantiated report" is a report that is
determined by the investigator based on some credible
evidence to constitute child abuse or neglect, as
defined.
c) An "inconclusive report" is a report that is
determined not to be unfounded, but in which the
findings are inconclusive and there is insufficient
evidence to determine if child abuse or neglect, as
defined, has occurred. (Penal Code 11165.12.)
Current law provides that any person may determine if he or she
is listed in the CACI by making a request in writing to the DOJ,
as specified. DOJ is required to make available to the
requesting person information identifying the date of the report
and the submitting agency; the requesting person is responsible
for obtaining the investigative report from the submitting
agency, as specified. (Penal Code 11170(e).)
Current law provides that if a person is listed in the CACI 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 DOJ.
(Penal Code 11170(g).)
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Current law requires DOJ to "immediately notify an agency" that
submits a mandated child abuse or neglect report, or a district
attorney who requests notification, of any information in CACI
that is relevant to the known or suspected instance of child
abuse or severe neglect reported by the agency. Current law
further requires that agency to make that information available
to the reporting medical practitioner, child custodian, guardian
ad litem, counsel, or appropriate licensing agency if he or she
is treating the victim or investigating the case, as specified.
(Penal Code 11170(b).)
This bill would revise this provision to clarify that the
reporting agency is required to make information received from
DOJ relevant to the known or suspect instance of abuse or
neglect available to the reporting health care practitioner who
is treating a person reported as an abuse or neglect victim.
This bill makes an additional, technical amendment to this
section.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125 percent (an
average of 4 percent annually) over the past 20 years, growing
from 76,000 inmates to 171,000 inmates, far outpacing the
state's population growth rate for the age cohort with the
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highest risk of incarceration.<1>
In December of 2006, plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
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<1> "Between 1987 and 2007, California's population of ages 15
through 44-the age cohort with the highest risk for
incarceration-grew by an average of less than 1 percent
annually, which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
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correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Stated Need for This Bill
The author states:
Current Penal Code Section 11170 (b) lumps both a
health care reporter and a non-health care reporter
into one sentence that entitles the reporter to
information from the DOJ Index "if he or she is
treating or investigating a case of known or suspected
child abuse." This sentence implies that health care
practitioners, who treat, might also be authorized to
investigate child abuse. CA Assn. of Marriage and
Family Therapists believes that this sentence should
be split into two sentences to make clear that health
care practitioners treat, but do not investigate cases
of know or suspected child abuse.
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<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
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2. What This Bill Would Do
As explained in detail above, current law requires the
Department of Justice ("DOJ") to maintain a Child Abuse Central
Index, which acts as a repository of reported known or suspected
incidents of child abuse or neglect. DOJ is required to
immediately notify an agency that submits a report, or a
prosecutor who requests notification, of any information in CACI
that is relevant to the known or suspected instance of child
abuse or severe neglect reported by the agency. Current law
then requires the agency to make that information available to
the reporting medical practitioner, custodian, guardian ad
litem, or counsel appointed as specified, or the appropriate
licensing agency, if he or she is treating or investigating a
case of known or suspected child abuse or severe neglect.
This bill makes a minor clarification to revise this language to
specify that the information must be provided to the reporting
"health care practitioner who is treating a person reported as a
possible victim of known or suspected child abuse." The bill
makes an additional conforming technical revision to distinguish
between health care practitioners treating persons and other
entities handling or investigating cases.
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