BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1048
Assemblymember Torrico
As Amended June 1, 2009
Hearing Date: July 7, 2009
Health and Safety Code; Penal Code
KB:jd
SUBJECT
Child Protection: Safe Surrender
DESCRIPTION
This bill would extend the period during which a person may
safely surrender a baby at designated sites as long as the
proper procedures under the Safely Surrendered Baby law are
followed. Specifically, this bill would: (1) allow the safe
surrender of a baby up to 30 days old, rather than 72 hours; (2)
permit a fire agency to designate a safe surrender site, upon
approval of the local governing body; (3) immunize a safe
surrender site and its personnel from criminal, civil, or
administrative liability for a surrendered child prior to taking
actual physical custody of the child, or prior to the time the
surrender site or its personnel knows, or should know, that the
child has been surrendered; and (4) require the Department of
Social Services to report specified information to the
Legislature.
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 of the
newborn. This legislation 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 pass away. SB 1368 created safe places
(such as an emergency room of a hospital) where a person may
(more)
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surrender the baby and, if they change their mind, 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. A sunset date of January 1, 2006 was part of the
original bill, which was later removed by SB 116 (Dutton,
Chapter 625, Statutes of 2005), making the safe surrender law
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. As of June
2008, 218 babies have been safely surrendered in California.
This bill is substantially similar to the author's AB 1873
(2006), which had a 30-day safe surrender period, and AB 81
(2007) and AB 2262 (2008), which contained a 7-day safe
surrender period. All three were vetoed by the Governor. The
Governor's veto message to AB 81 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.
CHANGES TO EXISTING LAW
1. 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 (Pen. 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. (Pen. Code Sec. 271a.)
Existing law makes it a crime for a parent willfully to fail,
without lawful excuse, to provide a child with necessary food,
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shelter, medical assistance, or other remedial care. (Pen.
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. (Pen. 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 & Saf. Code
Sec. 1255.7.)
This bill would allow the surrender of babies up to 30 days
old by a parent or another responsible person.
This bill would require, by January 1, 2013, the Department of
Social Services to begin reporting to the Legislature, on an
annual basis, specified information and statistics related to
the safe surrender program.
2.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 & Saf. 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.
3. Existing law provides immunity from civil, criminal, and
administrative liability to a safe surrender site or its
personnel that accepts custody of a surrendered child in good
faith belief that action is required or authorized under the
Safely Surrendered Baby law, including instances where the
child is older than 72 hours or the person surrendering the
child did not have lawful physical custody of the surrendered
child. (Health & Saf. Code Sec. 1255.7(h).)
This bill would further immunize from civil, criminal, and
administrative liability a safe surrender site or its
personnel for a surrendered child prior to taking actual
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physical custody of the child and prior to the time that the
site or its personnel knows or should know that the child has
been surrendered.
COMMENT
1. Stated need for the bill
According to the author, this bill expands the scope of a
life-saving law. Despite the protection of anonymity and
confidentiality that the current law provides, the author
asserts that the stringent 72-hour provision fails to account
for factors such as postpartum depression, language and
geographic barriers, and the lack of public awareness. The
author states that these factors may prevent parents from making
a coherent and informed decision on such a crucial matter.
The California State Auditor released a report in April 2008 on
the Safely Surrendered Baby Law, which found, among other
things, that funding for the program, public awareness, and the
information provided to counties about the program were
insufficient. (Bureau of State Audits, Safely Surrendered Baby
Law: Stronger Guidance from the State and Better Information for
the Public Could Enhance Its Impact, April 2008 Report 2007-124
(Report).) The State Auditor further found that the number of
abandoned babies had previously been underreported by DSS. The
safe-surrender law originally required DSS to report all
children abandoned before they reached the age of one year.
However, DSS only gathered and reported statistics on abandoned
babies seven days old and younger. According to the audit, at
least 404 babies have been abandoned between 2001 to 2007, as
opposed to 175, the previously reported number.
The author 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.
Finally, the author states that currently twenty-two states have
safe surrender provisions that give parents a month or longer to
surrender their baby. 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
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left with a health care provider.
2. Extending the safe surrender law to apply to 30-day old
infants may be premature
a. Insufficient data to determine whether safe surrender
laws should be extended to apply to 30-day old infants
Under the Safely Surrendered Baby 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.
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 January 2000 to
September 2004, the reports received from the California
Department of Social Services (CDSS) showed a total of 64
babies safely surrendered, which lead to the elimination of
the sunset date of January 1, 2006, and making the law
permanent (SB 116 (Dutton), Chapter 625, Statutes of 2005).
According to the 2008 report released by the State Auditor,
there have been 218 babies safely surrendered since the law's
inception. Statistics provided by CDSS indicate that the
number of babies surrendered in California has generally
increased each year since the safe surrender law became
effective. In 2006, 59 newborns were surrendered, compared to
30 in 2004 and just two in 2001. (Report, page 9.) The
majority of the infants (approximately 145) were less than a
day old, or a day old (approximately 48) at the time of their
surrender. Twelve of the infants were two days old, and four
were three days old. (Report, pages 51-59.) As previously
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stated, the state auditor also found that the number of
abandoned infants in California had been underreported by
CDSS. CDSS only gathered and reported statistics on abandoned
babies seven days old and younger, instead of reporting
statistics for all babies abandoned before they reached a year
old. According to the auditor's report, at least 404 babies
have been abandoned between 2001 to 2007, as opposed to 175,
the previously reported number. (Report, pages 25-26.)
Supporters of the bill contend that the current 72 hour
threshold is too stringent and does not account for situations
where, for example, mothers suffer from postpartum depression
psychotic breaks weeks after giving birth. The author also
points out that some women may live in counties where safe
surrender sites are not readily accessible. In this situation
a woman may have to find a mode of transportation into a
different county to leave the infant at a safe-surrender site,
which may not be feasible within 72 hours. The author also
points to the higher reported number of abandoned babies as
evidence that existing law needs to be adjusted to allow for
the surrender of infants older than 72 hours.
While the higher reported number of abandoned babies is worthy
of the Legislature's attention, it still does not, by itself,
provide enough information on which to determine whether a
need exists for the state to allow the safe surrender of
babies up to 30 days old. In a sampling of 40 babies
classified as abandoned in the Child Welfare Services Case
Management System, 10 babies were over three days old.
(Report, pages 59-61.) This sampling, however, only provides
limited data and otherwise suggests no pattern or profile
regarding individuals who are at risk of abandoning their
children which could serve as a basis for expanding existing
law. There are no complete statistics or data which break
down the ages of the abandoned infants beyond the seven day
mark, which leaves the Legislature with little guidance in
setting the appropriate threshold for safely surrendering
infants.
In light of the absence of accurate empirical data for infants
over seven days old, this committee may wish to consider
whether it is premature to expand the existing safe surrender
program to infants up to 30 days old, and whether this bill
should instead allow for the safe surrender of infants up to
seven days old.
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SHOULD THIS BILL BE AMENDED TO INSTEAD ALLOW FOR THE SAFE
SURRENDER OF INFANTS UP TO SEVEN DAYS OLD?
b. States' safe surrender laws differ in key respects
The National Adoption Information Clearinghouse identifies 16
states that provide for the safe surrender of babies up to 72
hours old, and 5 states that provide for the safe surrender of
babies up to 7 days old. Four states allow the safe surrender
of babies up to 14 days old; New York uses 5 days and 14
states use 30 days as the cut-off age for the infant to be
safely surrendered. Six other states vary from 45 days to 90
days, and two states (Missouri and North Dakota) allow babies
up to one year to be surrendered. However, Missouri does not
allow anonymity of the person who surrenders the child. Of
those states that allow babies up to 7 days to be surrendered,
several do not permit anonymity of the person surrendering the
child and do not permit relinquishment by anyone other than
the birth parent.
The variance in the statutes among the states likely reflects
a variance in realities and problems affecting each respective
state. Accordingly, it is difficult to justify a change in
California law simply based on the laws in other states.
Further, one should not just look at the age threshold in a
vacuum. If the Legislature is to allow for the surrender of
infants up to 30 days old, should it also then require parents
to provide more information upon the child's surrender?
Should parents still be completely absolved of criminal
prosecution regardless of the age or condition of the child?
Any changes to current law should be balanced so as to ensure
the safety of the infant and the rights of the parents. As
previously discussed, more accurate data is critical in order
to craft the appropriate balance.
c. Existing alternative to abandonment or surrender after 72
hours (3 days)
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. Further, according to the County
Welfare Directors Association of California (CWDA), voluntary
placement rules allow a parent to place a child in foster care
for up to six months. These two paths offer both short- and
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long-term options for parents who are overwhelmed or are
suffering from postpartum depression. These options, which
are easily accessed at the local level, would also allow for
the collection of important medical history information,
provide full disclosure and due process for both the mother
and father of the baby, and allow for potential future contact
between the baby and the birth family, according to the group.
Given the voluntary relinquishment process, this committee may
wish to consider whether it is necessary to expand current law
to 30-day old infants.
3. 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 &
Saf. 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 a 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 additional immunity from criminal,
civil, or administrative liability to a safe-surrender site or
its personnel "prior to its taking actual physical custody of
the surrendered child" and also "prior to the time the site or
its personnel know(s), or should know, that the child as been
surrendered." According to the author, there are instances
where infants are not directly surrendered to personnel, but
left outside of a safe-surrender site. The author states that
these additional immunities are to ensure that safe-surrender
sites and personnel are not exposed to liability prior to
actually discovering the child.
This is arguably 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 surrendering the child could claim any
legal custody rights to the child for purposes of the SSB law.
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In fact, all other subdivisions in the section refer to the
physical custody of the child. The duties relating to the care
of the child do not begin until after the safe- surrender site
or its personnel accepts custody of the child, which is when the
qualified immunity rule comes into play.
The expansion of immunity to "prior to the time the site or its
personnel know(s) or should know that the child has been
surrendered" suffers from the same deficiency: it is
unnecessary as no obligation to act would materialize until the
physical custody of the child was actually transferred, and by
that time someone would know about it. Accordingly, this
committee may wish to consider whether these immunities
provisions should be removed from the bill.
SHOULD THE PROVISIONS CREATING ADDITIONAL IMMUNITIES BE DELETED
FROM THE BILL?
4. Fire stations to designate safe-surrender sites
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 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 Welfare and Institutions Code
Section 300 to declare the child a ward of the state if the
child is not reclaimed.
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.
Given the growing paucity of hospitals, particularly in inner
cities, designation of additional safe surrender sites in inner
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cities may well be appropriate. However, such designations
should probably be done only in conjunction with the city or
county governments, which is seemingly already authorized under
existing law.
5. This bill would create new reporting requirements for CDSS
This bill would require, by January 1, 2013, CDSS to begin
reporting to the Legislature, on an annual basis, specified
information and statistics related to the safe surrender
program. Specifically, the report must include: (1) the number
of children one year of age or younger who are found abandoned,
dead or alive, in the state for each year in which reporting is
required under this act; (2) the number of infants surrendered
pursuant to this act, with their approximate age; (3) the number
of medical history questionnaires completed in those cases; (4)
the number of instances in which a parent or other person having
lawful custody seeks to reclaim custody of a surrendered child,
both during and after the initial period following surrender,
and the outcome of those cases; (5) whether a person seeking to
reclaim custody is the individual who surrendered the child; (6)
the number of children surrendered pursuant to this act who show
signs of neglect or abuse and the disposition of those cases;
and (7) the number of parents or legal guardians eventually
located and contacted by social workers.
This portion of the bill would implement the State Auditor's
recommendation that CDSS be required to continue annual
reporting to the Legislature on the safe surrender law's impact.
These reports should provide the Legislature with vital
information necessary to assess the success and shortcomings of
existing law.
6. Opposition
A number of law enforcement and social service agencies strongly
support the safe-surrender law, but are 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 law 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)
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write that the 30-day provision is not supported by research on
child abandonment, is inconsistent with the policy of anonymity,
and circumvents well-considered child protection and
relinquishment policies. CWDA points 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
postpartum 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
with this situation, such as "crisis nurseries" or lawful
relinquishment. For example, existing voluntary relinquishment
laws enable a parent to surrender a child to a 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
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by existing relinquishment laws.
The Los Angeles County Board of Supervisors and Los Angeles
County Sheriff also oppose AB 1048 for essentially the same
reasons set forth by CWDA. 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. The
California State Association of Counties is also opposed to the
bill in its current form, but states that seven days is a more
appropriate expansion of the surrender period.
Support : American College of Obstetricians and Gynecologists;
Association of California Healthcare Districts; California
Attorneys for Criminal Justice; California Catholic Conference;
California Fire Chiefs Association; Fire Districts Association
of California; California Medical Association; California State
PTA; California Professional Firefighters; California
Psychiatric Association; California Psychological Association;
City of San Jos?; League of California Cities; Yolo County Board
of Supervisors; California Commission on the Status of Women;
Kern Child Abuse Prevention Council
Opposition : California Welfare Directors Association; Los
Angeles County Board of Supervisors; Los Angeles County
Sheriff's Department; California State Association of Counties
HISTORY
Source : Author
Related Pending Legislation : AB 1049 (Torrico) would create the
Safely Surrendered Baby Fund and allow individual taxpayers to
designate on their tax returns, that a specified amount in
excess of their tax liability be transferred to the fund. This
bill is pending in the Senate Revenue and Taxation Committee.
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,
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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
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
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above, originally enacted the state's safe-surrender law.
Prior Vote :
Assembly Public Safety Committee (Ayes 5, Noes 0)
Assembly Judiciary Committee (Ayes 8, Noes 2)
Assembly Appropriations Committee (Ayes 14, Noes 3)
Assembly Floor (Ayes 67, Noes 9)
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