BILL ANALYSIS
AB 1048
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1048 (Torrico) - As Amended: March 31, 2009
SUBJECT : Child Protection: Safe Surrender
KEY ISSUES :
1)Should the time frame for permitting the surrender of newborn
children to designated "safe-surrender" sites be increased
from 72 hours to 30 days?
2)Should a local fire agency, with approval from a local
governing body, be permitted to designate a safe-surrender
site?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
Under existing law, established in 2000 by SB 1368 (Brulte), a
parent or other person with lawful custody of a baby 72 hours
old or younger may surrender the newborn to a designated
safe-surrender site without fear of criminal prosecution for
child abandonment. Designated safe-surrender sites include a
private or public hospital or any other location designated by a
county board of supervisors. This bill would expand the scope
of existing law in three ways: (1) it would increase the amount
of time in which a parent or other person with custody could
surrender the child after its birth from 72 hours to 30 days;
(2) it would permit a fire agency, with the approval of the
local governing body, to designate a fire station as a
safe-surrender site; and (3) it would designate the funding
stream for the safe-surrender program.
This bill is very similar to AB 81 and AB 2262 carried by the
author last session to increase participation in the state's
child-saving "safe-surrender" program and to save more children.
The Governor vetoed those measures, stating in part, "Experts
have raised concerns that instead of improving child safety,
increasing the time that a baby may be surrendered from 72 hours
will put newborns in greater risk by keeping them in an unsafe
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environment without proper care and supervision." The author
and his many supporters continue to believe that this is not the
case, and hope to demonstrate this year to the Governor's
satisfaction that, to the contrary, expanding the time period
that a baby may be surrendered from 72 hours to 30 days, coupled
with appropriate public education efforts, will save more
children's lives. Opponents, many of whom support the current
safe-surrender law, contend that there is no evidence to support
extending the time frame to 30 days. Many of the opponents
support increased funding to better publicize a law that they
believe is already effective, but they claim that extending the
time frame, instead of saving lives, will only permit persons to
circumvent established child protection and adoption procedures
and inadvertently create other unwanted consequences.
SUMMARY : Expands the scope of the existing "safe-surrender" law
that allows persons to surrender newborn children to a
designated safe-surrender site without fear of criminal
prosecution. Specifically, this bill :
1)Increases the time period in which a person may surrender an
infant under the provisions of the "safe-surrender" law from
72 hours after the child's birth to 30 days.
2)Permits a local fire agency, upon approval of the appropriate
local governing body, to designate a safe-surrender site.
Before designating a location as a safe-surrender site, the
designatory entity shall consult with the governing body of a
city, if the site is within the city limits, and with
representatives of a fire department and a child welfare
agency that may provide services to a child who is surrendered
at the site, if that location is selected.
3)Limits, under certain circumstances, the liability of the
safe-surrender site and its personnel in relation to accepting
and caring for the surrendered child and the time prior to
when the site or its personnel knew, or should have known,
that the child had been surrendered.
4)Provides that funding be available through the State
Children's Trust Fund and the California Children and Families
Trust Fund. Provides that the Department of Social Services
(DSS) shall apply to the California Children and Families
Commission for funding and that General Fund moneys shall not
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be used to fund this bill. DSS may also accept and expend
private donations that are received by the department for the
purposes of this bill.
5)Requires DSS, on or before January 1, 2013, contingent upon
availability of sufficient funding or resources for this
purpose, and on or before January 1 of each subsequent year,
to report to the Legislature on the effect of this act.
6)Requires DSS, on or before July 1, 2010, to convene a
"workgroup" whose purpose is to determine which agencies
should provide updated instructions to counties as to
safe-surrender sites, and to determine which agencies should
create rules and regulations for those updates.
EXISTING LAW :
1)Makes it a crime for a parent of, or other person entrusted
with, a child younger than 14 years of age to abandon the
child (Penal Code Section 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 Section 271(a).)
2)Makes it a crime for a parent willfully to fail, without
lawful excuse, to provide a child with necessary food,
clothing, shelter, medical assistance or other remedial care.
(Penal Code Section 270.)
3)Makes it a crime for a parent who refuses, without lawful
excuse, to accept his or her minor child into the parent's
home, or, failing to do so, to provide alternative shelter,
upon being requested to do so by a child protective agency and
after being informed of the duty imposed by this statute to do
so. (Penal Code Section 270.5.)
4)Describes the procedure for the surrender of a child 72 hours
or younger to a safe-surrender site without incurring any
criminal liability under the state's child abandonment laws.
(Health and Safety Code Section 1255.7.)
5)Defines a "safe-surrender site" as either:
a) A location designated by the board of supervisors of a
county to be responsible for accepting physical custody of
minor who is 72 hours old or younger. (Health and Safety
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Code 1255.7(a)(1)(A).); or,
b) A location within a public or private hospital
designated by the hospital as responsible for accepting a
minor child who is 72 hours old or younger. (Health and
Safety Code 155.7(a)(1)(B).)
6)Defines a "parent" as a birth parent of a minor child who is
72 hours old or younger. (Health and Safety Code
155.7(a)(2).)
7)Protects from prosecution under California's child abandonment
laws a parent or other person having lawful custody of a child
72 hours old or younger who voluntarily surrenders physical
custody of the child to personnel on duty at a safe-surrender
site. (Penal Code Section 271.5.)
8)Provides that a child is within the jurisdiction of the
juvenile court if:
a) The child has been left without any provision for
support;
b) The child has been safely surrendered and the child was
not been reclaimed within the 14-day period, as specified;
c) The child's parent has been incarcerated or
institutionalized and cannot arrange for the care of the
child; or, a relative or other adult custodian with whom
the child resides or has been left is unwilling or unable
to provide care or support for the child, the whereabouts
of the parent are unknown, and reasonable efforts to locate
the parent have been unsuccessful. (Welfare and
Institutions Code Section 300(g).)
COMMENTS : Under existing law, established in 2000 by SB 1368
(Brulte), a parent or other person with lawful custody of a baby
72 hours old or younger may surrender the newborn to a
designated safe-surrender site without fear of criminal
prosecution for child abandonment. Designated safe-surrender
sites include a private or public hospital or any other location
designated by a county board of supervisors. Forty-seven states
have enacted similar legislation since Texas adopted the first
"safe haven" law in 1999. Other state laws vary in their
particulars, but all were prompted by well-publicized reports of
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mostly young mothers abandoning newborns in dumpsters,
alleyways, or public restrooms. Safe haven laws seek to avoid
such tragic outcomes by permitting the parent of a newborn to
anonymously surrender the child to a safe-surrender site, where
the infant will receive shelter, sustenance, and medical care
instead of being exposed to the elements and possibly dying.
This bill is very similar to AB 81 and AB 2262 carried by the
author last session, with the goal of increasing participation
in the state's "safe-surrender" program and therefore saving
more children. Although these bills received broad bipartisan
support, the Governor vetoed both measures (veto message
contained below), stating in part, "Experts have raised concerns
that instead of improving child safety, increasing the time that
a baby may be surrendered from 72 hours will put newborns in
greater risk by keeping them in an unsafe environment without
proper care and supervision." The author and his many
supporters continue to believe that this is not the case, and
hope to demonstrate this year to the Governor's satisfaction
that, to the contrary, expanding the time period that a baby may
be surrendered from 72 hours to 30 days, coupled with
appropriate public education efforts, will save more children's
lives. The Los Angeles County Board of Supervisors previously
opposed similar measures, stating its belief that the 72-hour
age limitation contained in current law strikes the proper
balance, and the time period should not be expanded.
This bill, among other things, seeks to expand the scope of
existing law most substantively by expanding the time period in
which a parent or other person may surrender a child from 3 days
to 30 days. In support of this increase, the author states:
As of June 2008, 251 babies have been safely surrendered in
California. Unfortunately, public awareness of the law has
been insufficient. The California State Auditor released a
report in April 2008 on the Safely Surrendered Baby Law.
The audit reported that over 400 babies have been found
illegally abandoned in California. Further, the audit
found that funding for the program, public awareness, and
the information provided to counties about the program were
insufficient.
Currently, 33 states have Safe Surrender provisions that
allow at least seven days for desperate and unprepared
parents to relinquish their parental rights for newborns.
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North Dakota and Missouri have gone so far as to allow a
parent up to one year without the threat of prosecution for
child abandonment provided that the child is left with a
health care provider. Several of the remaining states are
also considering the expansion of their own safe surrender
provisions beyond 72 hours.
Despite the protection of anonymity and confidentiality
that the current law provides, the stringent 72-hour
provision fails to account for factors such as postpartum
depression, language and geographic barriers and the lack
of public awareness. These factors may prevent parents
from making a coherent and informed decision on such a
crucial matter.
According to the author and supporters, this bill expands the
scope of a life-saving law. They contend that the current law
has saved lives and that extending the surrender period will
save even more. The author points out that of the 47 states
that have safe-surrender laws, 22 have surrender periods of 30
days or longer.
The author also points to a study conducted by the Centers for
Disease Control, which found that the second highest peak in
risk for infant homicide occurs during the eighth week of life.
However, the relevance of this study is not entirely clear,
since this bill would only extend the period to 30 days, or just
over four weeks. Moreover, infant homicide is not the same as
child abandonment, and the psychological state that prompts a
parent to kill a child is not necessarily the same as the state
that causes a parent to abandon a child. Interestingly, the
opponents of a previous similar bill cite this same study, since
it shows that the greatest risk of infant homicide (83%) is
during the first 24 hours.
The author provides evidence that babies older than 72 hours
continue to be abandoned. In 2008, the State Auditor found that
404 babies (one year old or younger) had actually been abandoned
since the inception of the law, though the DSS only reported 175
abandoned babies. The author states that the DSS's numbers were
much lower because it only reported on abandoned babies 7 days
old or younger. Moreover, the report found that over 25% of the
abandoned babies had been over 3 days (72 hours) old. (Bureau
of the State Audits, Safely Surrendered Baby Law, April 2008
Report 2007-124, pp. 10, 59.) The author argues, based on these
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data, that a significant number of children could have been
safely surrendered if the surrender period had been longer than
72 hours.
The author also reports that shortly after the Auditor's report
was released, at least two babies were abandoned. One of the
babies was a 9-day-old baby abandoned on the track of a
Vacaville school. The mother left the baby within a half-mile
of a fire station and a hospital, both designated safe-surrender
sites. The baby was too old to be safely surrendered and the
mother had suffered a psychotic breakdown.
Supporters of the 30-day surrender period do not rely solely
upon a statistical argument, however. They also argue that if
extending the time frame saves even one life, then it is
worthwhile. For example, the American College of Obstetricians
and Gynecologists previously conceded that expanding the
surrender period "may not significantly increase the numbers of
newborns protected under this program, but if even a few lives
can be saved, we think the program expansion appropriate." Even
if extending the time frame will create some of the problems
that opponents fear, the author contends, those problems are
easily outweighed by the value of saving a human life.
Professor Michelle Oberman, of Santa Clara University School of
Law, has written extensively on the subject of mothers who kill
their infants. She acknowledges the general lack of evidence on
this subject but points out that, on the other hand, "there is
no credible reason to believe that this expansion of the law
will increase the risk of babies being abused," as was claimed
by the Governor in his veto message. In short, the lack of
evidence cuts both ways. Oberman points out that expanding the
surrender time will at the very least provide "a positive
alternative to the desperation that likely informs the impulsive
decision-making of young women contemplating abandoning their
newborns." Professor Oberman concludes that "there is, however,
far more to be gained than there is to be lost by this
particular expansion of the safe surrender law."
Legislative Intent and History Behind the Safe-Surrender Law :
The safe-surrender law was enacted by SB 1368 (Brulte), Chapter
824, Statutes of 2000. The intent was to provide a mother of an
unwanted newborn with a safe alternative to abandonment of the
child in trash bins, alleys, or other places where the baby
would be unprotected and could die. SB 1368 was spurred by a
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group that retrieved dead abandoned babies from county morgues
and buried them in a specially designated cemetery.
In order to reduce the number of abandoned babies left to die
and give them a chance to survive, SB 1368 provided a safe place
(such as an emergency room of a hospital) where a person could
"safely" surrender the baby; and, if there were a change of
heart, that person could retrieve the baby within a specified
time. SB 1368 also provided immunity from criminal prosecution
for violation of the child abandonment laws to the person who
safely surrendered the newborn.
Under California's existing law, a person may surrender an
infant to a designated "safe-surrender" site, either a hospital
or some other designated site such as a fire station. Research
shows that young women who abandon their newborns do so because
they hope to keep the birth a secret. Existing law therefore
permits a person to surrender the infant with complete
anonymity. The surrendering party is asked to voluntarily fill
out a medical questionnaire, but otherwise no questions are
asked. A bracelet attached to both the newborn and the
surrendering party permits a parent to reclaim the child within
14 days, so long as relinquishing the child to the parent would
not endanger the child. Within 48 hours of taking custody of
the child, the safe-surrender site must notify the relevant
child protection agency, which in turn begins the process of
making the child a dependent of the court and setting the stage
for foster care or adoption.
Existing Research on the Current Surrender Period : As reported
by the Assembly Public Safety Committee in 2008, the Emergency
Pediatric Care Journal found in 2003 that "newborns are at the
greatest risk of homicide during the first day of life; this
time-frame constitutes 83% of all infants killed." Supporting
this data, a 2002 Centers for Disease Control study conducted on
infant death data from 1989 to 1998 also found that infants are
at the greatest risk for homicide during the first week of
infancy and the first day of life. In addition, the study
established that the homicide rate on the first day of life was
more than 10 times greater than the rate during any other time
of life.
ARGUMENTS IN OPPOSITION : Opponents of the author's previous
efforts can be separated into two categories: those who support
the safe-surrender law, but oppose the 30-day surrender period;
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and those who oppose the bill because they oppose the
safe-surrender concept in general.
Safe-Surrender Law Supporters Who Opposed the Author's Previous
Bills : A number of law enforcement and social service agencies
strongly support the safe-surrender law and are only opposed to
extending the surrender period to 30 days. Opponents claim that
the original law was meant to address particular situations in
which newborns are at greatest risk of abandonment. Expanding
the bill to 30 days, opponents claim, does nothing to address
those particular risks and will only create a number of
unintended and unwanted consequences, some of which may even put
children at greater risk.
The County Welfare Directors Association of California (CWDA)
previously claimed that the 30-day provision cannot be justified
by research on child abandonment, is inconsistent with the
policy of anonymity, and circumvents well-considered child
protection and relinquishment policies. CWDA pointed out that
existing research clearly distinguishes between women who kill
or abandon babies shortly after birth and those who endanger
their babies later on. Research shows that mothers who kill or
abandon newborns do so within the first 24 hours because they
are in a severe state of denial about their pregnancy and/or
have managed to keep their pregnancy a secret. Without a
safe-surrender site that maintains their anonymity and protects
their secret, young women in such a situation are likely to
abandon a baby in an unsafe place. This is why the anonymity
guaranteed by the safe surrender is so essential.
CWDA claims that women who kill their babies after this initial
period do so for quite different reasons: They may suffer from
post-partum depression or mental illness, or perhaps they are
motivated by a misguided belief that the child will be better
off dead or that God is commanding them to kill their child.
Clearly these women need help, but CWDA contends that
safe-surrender sites will not help them or their children. CWDA
contends that women who have cared for their children for up to
30 days have probably not been able to keep this a secret from
family and friends. They would not benefit, therefore, from the
anonymity of a safe-surrender site. Of course, it is possible
that after the three-day period some women (or men for that
matter) may feel so overwhelmed that they feel that they can no
longer safely or adequately care for their child. However, CWDA
points out that there are already existing methods for dealing
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with this situation, such as "crisis nurseries" or lawful
relinquishment. For example, existing voluntary relinquishment
laws enable a parent to surrender a child to county child
welfare agency and to place a child in foster care for up to six
months. According to CWDA, these options not only remove the
child from potential danger but also provide counseling, and
opportunity to gather critically needed medical information, and
better security for the rights of birthparents. This process is
also better for children, who in the safe-surrender context
might be denied information about their parental and medical
history.
CWDA does not entirely oppose revisiting California's 72-hour
safe-surrender limit, suggesting instead that a law extending
the safe surrender period to 7 days would reasonably balance the
immediate risk to newborns and the need for safeguards provided
by existing relinquishment laws.
The Los Angeles County Board of Supervisors previously opposed
AB 81 unless amended to remove the 30-day surrender period, for
essentially the same reasons set forth by CWDA. The Los Angeles
Inter-Agency Council on Child Abuse and Neglect (ICAN), the Los
Angeles County Sheriff, and Los Angeles County District
Attorney's Office also opposed increasing the surrender period
to 30 days. In addition to the arguments made by CWDA, these
agencies pointed out that extending the time period might result
in abusive parents using the safe-surrender law to escape
criminal responsibility for child abuse or neglect. Although
existing law only provides immunity from child abandonment
charges, these opponents feared that, as a practical matter,
anonymity could be used to escape liability for other crimes.
ICAN added that extending the time for surrender could extend
the time that a child is at risk "by delaying the intervention
of professionals who can help parents and develop a plan for
their child in a safe and caring manner."
As previously noted, the opponents discussed above do not oppose
the safe-surrender law in general, and are in fact very
supportive of the provision in the bill that will allow funds to
better publicize existing law.
General Opposition to Safe-Surrender Laws : Bastard Nation, an
organization concerned primarily with the rights of adopted
children, opposed previous bills for the same reasons that it
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opposed the initial law and the removal of the sunset. Bastard
Nation contends that safe-surrender laws allow parents to bypass
the adoption process. Children who are surrendered to a
safe-surrender site and subsequently adopted lose the right to
know their identity, medical history, or cultural heritage, and
they will forever lose their right to identify their birth
parents. In addition, they claim, bypassing the adoption
process greatly restricts the birthparents' right to ever
reclaim the child, and it allows one parent to surrender a child
without the knowledge or consent of the other parent (usually
the father). Bastard Nation rejects the argument that the
safe-surrender law can be justified on the grounds that it might
save a life. More generally, Bastard Nation contends that the
safe-surrender law encourages unethical behavior, legitimates
abdication of parental responsibility, and will logically lead
to "'legal' abandonment of children of any age." California
Open opposed a similar bill for similar reasons, but also
questions whether the DSS data accurately reflect the number of
abandoned babies in California. California Open contends that
the law has had no impact on the number of babies abandoned
illegally statewide.
The Governor's Veto of Similar Legislation Last Session : As
noted above, AB 81 and AB 2262 were vetoed last session. In his
veto message of AB 81, the Governor stated:
California's Safe Surrender Law already provides an
emergency alternative for a woman in crisis who may
otherwise abandon, abuse, or kill her baby.
California's law was carefully crafted to balance the
creation of a safe surrender option while preserving
the rights of children. The current 72-hour period
contained in law allows for a no-questions-asked safe
surrender of a newborn, and is supported by research
and statistics which indicate that most neonaticide
occurs within the first day. Experts have raised
concerns that instead of improving child safety,
increasing the time that a baby may be surrendered
from 72 hours will put newborns in greater risk by
keeping them in an unsafe environment without proper
care and supervision.
The author hopes this year that, because of the continuing
success of the safe-surrender program, and the additional public
education resources, the Governor will reconsider his earlier
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view.
Prior Legislation : AB 2262 (Torrico), 2008, would have allowed
for the safe surrender of a baby up to 7 days old, rather than
72 hours; permitted a fire agency to designate a safe-surrender
site, upon approval of the local governing body; and would have
immunized a safe-surrender site and its personnel from criminal,
civil, or administrative liability, as specified. The bill
would have directed the Department of Health Care Services,
among others, to issue updated instructions on or before July 1,
2009 to clarify what information was being gathered with respect
to surrendered babies and their mothers. This bill was vetoed.
AB 81 (Torrico), 2007, would have extended the age at which an
infant can be anonymously surrendered by a birth parent without
criminal liability for child abandonment under the
safe-surrender statute from 72 hours or younger to 7 days or
younger. The bill would have also authorized a local fire
agency to be a safe-surrender site, as specified, and required
the Department of Social Services to conduct a statewide public
awareness campaign for the safe-surrender program and establish
a toll-free number to provide the public with information about
the program. This bill was vetoed.
AB 1873 (Torrico), of 2005-06, sought to expand the
safe-surrender law to allow a parent or individual with lawful
custody of a child 30 days old or younger to be surrendered to a
designated safe-surrender site. This bill was vetoed.
SB 116 (Dutton), Chapter 625, Statutes of 2005, deleted the
sunset date of January 1, 2006 from the safe-surrender law.
SB 1413 (Brulte), Chapter 103, Statutes of 2004, immunized from
civil damages a person who assists another person to voluntarily
surrender physical custody of a newborn under the safe-
surrender law, provided that the person is not compensated,
renders the assistance in good faith, and believes in good faith
that the person being assisted is a parent or other person
having lawful custody of the newborn. "Assistance" was defined
to include providing transportation or accompanying the parent
or other individual to the safe-surrender site. The bill
further specified that this immunity would not extend to acts or
omissions constituting gross negligence.
SB 139 (Brulte), Chapter 150, Statutes 2003, provided that a
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child may be surrendered at any hospital or other designated
safe-surrender site. Previously, a designated employee at a
hospital emergency room or other location was the only person
permitted to accept a baby.
AB 2817 (Maddox), Chapter 1099, Statutes 2002, requires school
districts to include information regarding the safe-surrender
law in sex education classes.
SB 1368 (Brulte), Chapter 824, Statutes of 2000, as described
above, originally enacted the state's safe-surrender law.
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Obstetricians and Gynecologists
League of California Cities
Yolo County Board of Supervisors
Opposition
None on file
Analysis Prepared by : Drew Liebert and Rachel Anderson / JUD.
/ (916) 319-2334