BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
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AB 2339 (Smyth) 9
As Introduced February 19, 2010
Hearing date: June 15, 2010
Penal Code
AA:dl
CHILD ABUSE:
MANDATORY REPORTING
HISTORY
Source: California Association of Marriage and Family
Therapists
Prior Legislation: AB 525 (Chu) - Ch. 701, Stats. 2006
SB 1313 (Kuehl) - Ch. 842, Stats. 2004
SB 1312 (Peace) - Ch. 1106, Stats. 2003
AB 2442 (Keeley) - Ch. 1064, Stats. 2003
AB 102 (Rod Pacheco) - Ch. 133, Stats. 2001
SB 644 (Polanco) - Ch. 842, Stats. 1997
AB 1065 (Goldsmith) - Ch. 844, Stats. 1997
Support: Peace Officers Research Association of California;
Crime Victims Action Alliance; American Association for
Marriage and Family Therapy
Opposition:None Known
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
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SHOULD A TECHNICAL CLARIFICATION BE MADE TO THE MANDATORY CHILD
ABUSE REPORTING LAWS TO EXPRESSLY AUTHORIZE THE SHARING OF
INFORMATION FROM AN AGENCY INVESTIGATING A REPORT OF ALLEGED
EMOTIONAL ABUSE TO AN INVESTIGATOR, AS SPECIFIED?
PURPOSE
The purpose of this bill is to make an essentially technical
clarification to the mandatory child abuse reporting laws to
expressly authorize the sharing of information from an agency
investigating a report of alleged emotional abuse to an
investigator, as specified.
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.)
Under current law the term "child abuse or neglect" for the
purposes of CANRA "includes physical injury or death inflicted
by other than accidental means upon a child by another person,
sexual abuse . . . , neglect . . . , the willful harming or
injuring of a child or the endangering of the person or health
of a child, . . . and unlawful corporal punishment or injury . .
. . 'Child
abuse or neglect' does not include a mutual affray between
minors. 'Child abuse or neglect' does not include an injury
caused by reasonable and necessary force used by a peace officer
acting within the course and scope of his or her employment as a
peace officer." (Penal Code 11165.6.)
Current law provides that, "(a)ny mandated reporter who has
knowledge of or who reasonably suspects that a child is
suffering serious emotional damage or is at a substantial risk
of suffering serious emotional damage, evidenced by states of
being or behavior, including, but not limited to, severe
anxiety, depression, withdrawal, or untoward aggressive behavior
toward self or others, may make a report to an agency," as
specified. (Penal Code 11166.05.)
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Current law generally provides for the content of reports made
pursuant to these provisions, and expressly provides that
"(i)nformation relevant to the incident of child abuse or
neglect
may be given to an investigator from an agency that is
investigating the known or suspected case of child abuse or
neglect." (Penal Code 11167(b).)
This bill would extend this provision to information relevant to
a report of serious emotional damage made pursuant to Section
11166.05.
Current law also provides that "(i)nformation relevant to the
incident of child abuse or neglect, including the investigation
report and other pertinent materials may be given to the
licensing agency when it is investigating a known or suspected
case of child abuse or neglect."
This bill would extend this provision to information relevant to
a report of serious emotional damage made pursuant to Section
11166.05.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
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"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
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Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not aggravate the prison overcrowding crisis
described above.
COMMENTS
1. Stated Need for This Bill
The author states:
In California, mandated reporters are required to make
reports of suspected child abuse or neglect. These
mandated reporters, such as school teachers, health
care professionals and social workers, are therefore
immune from liability as a result of providing the
information to the investigating agency.
Another Penal Code section, 11166.05, authorizes, but
does not require, a mandated reporter to report
instances where a child is suspected of suffering
serious emotional damage.
Due to the difference in language, a mandated reporter
who cooperates with an investigator may be subject to
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<1> Three Judge Court Opinion and Order, 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 (August 4, 2009).
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discipline because the reports of emotional damage
made pursuant to Section 11166.05 are not categorized
or referred to as child abuse reports.
In short, reporters of emotional damage are authorized
to make reports, but not legally protected to share
the reports with investigatory agencies.
AB 2339 will protect reporters of emotional abuse from
threats of liability or discipline. The bill simply
changes Penal Code 11167(b) to include "information
relevant to a report made pursuant to Section
11166.05" and thus allows mandated reporters to
discuss cases with investigators without fear of
violating the law.
2. What This Bill Would Do
As explained above, this bill makes an essentially technical
clarification to the mandatory child abuse and neglect
reporting laws to expressly authorize the sharing of
information from an agency investigating a report of emotional
abuse to an investigator, as specified.
3. Background: The Child Abuse Central Index; Ongoing Concerns
As explained above, DOJ maintains the Child Abuse Central Index
("CACI"), which is a "statewide reference file",<2> intended to
refer authorized individuals or entities to underlying child
abuse investigative reports maintained at the reporting agency.
In 2007, DOJ indicated that CACI contained the following
aggregate information:
Number of Reports in CACI =773,473
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<2> California Code of Regulations ("CCR"), tit. 11, 900.
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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 Web site:
The Attorney General's Child Protection Program
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, 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
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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 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.<3>
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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<3> See http://ag..ca.gov/childabuse.
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itself.<4>
The use, utility and fairness of CACI has been the subject of
discussion, debate and litigation for over a decade. While this
bill does not directly raise the issues surrounding CACI, the
analysis of this bill prepared by the Assembly Committee on
Public Safety provides useful background on these issues,
including the following information:
CANRA states that DOJ shall make the information in
the Computer Aided Dispatch (CAD) available to a broad
range of third parties for a variety of purposes. For
example, the information in the CAD is made available
"to the State Department of Social Services [(DSS)],
or to any county licensing agency that has contracted
with the state for the performance of licensing duties
. . . concerning any person who is an applicant for
licensure or any adult who resides or is employed in
the home of an applicant for licensure or who is an
applicant for employment in a position having
supervisorial or disciplinary power over a child or
children, or who will provide 24-hour care for a child
or children in a residential home or facility. . . . "
[Penal Code Section 11170(b)(4).] The information
is also provided to persons "making inquiries for
purposes of pre-employment background
investigations for peace officers, child care
licensing or employment, adoption or child placement."
[Id. at subd. (b)(8).] The "Court
Appointed Special Advocate program that is conducting
a background investigation of an applicant seeking
employment with the program or a volunteer position as
a Court Appointed Special Advocate" also has access to
CACI information. [Id. at subd.
(b)(5).]
The scope of CANRA is not limited to California
institutions. CANRA makes the CACI information
available "to an out-of-state agency, for purposes of
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<4> 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 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)
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approving a prospective foster or adoptive parent or
relative caregiver for placement of a child" so long
as "the out-of-state statute or interstate compact
provision that requires that the information received
in response to the inquiry shall be disclosed and used
for no purpose other than conducting background checks
in foster or adoptive cases." [Id. at subd. (e)(1).]
Some state agencies are required to consult the CACI
prior to issuing a variety of state-issued licenses or
other benefits. . . .
California Welfare and Institutions Code Section 361.4
similarly requires that "[w]henever a child may be
placed in the home of a relative, or a prospective
guardian or other person who is not a licensed or
certified foster parent, the county social worker
shall cause a check of the [CACI] . . . to be
requested from the [CA DOJ]. . .
. . . (I)t is apparent that the CACI listing plays
an integral role in obtaining many
rights under California law, including employment,
licenses, volunteer opportunities, and even child
custody.
. . .
CANRA offers no procedure for challenging a current
listing on the CACI. CANRA does provide, however,
that "[i]f a report has previously been filed which
subsequently proves to be unfounded, [DOJ] shall be
notified in writing of that fact and shall not retain
the report." . . . The statute does not describe who
must notify DOJ of that fact or how the determination
that a report has "subsequently
prove[d] to be unfounded" is to be made. CANRA also
provides that the CACI "shall be continually updated
by the department and shall not contain any reports
that are determined to be unfounded." [Penal Code
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Section 11170(a)(1).]
Only the submitting agency can decide if a report has
proved unfounded. CANRA provides that "[t]he
submitting agencies are responsible for the accuracy,
completeness, and retention of the reports," thus
suggesting that the submitting agencies are also
responsible for removing reports that are determined
to be unfounded. [Id. at subd.(a)(2).] Furthermore,
as explained above, CANRA defines an "unfounded
report" as "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." [Penal Code Section
11165.12(a) and (b) . . .] Thus, the investigator
and agency that conducted the investigation are
responsible for making, and correcting,
the determination that a report is unfounded.
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Although CANRA itself provides no procedure for an
individual to challenge a CACI listing, nothing in the
statute prevents a submitting agency from enacting
some procedure to allow an individual to challenge
their listing or seek to have a determination made
that a report is "unfounded." . . . CANRA also
contemplates that DOJ "may adopt rules
governing recordkeeping and reporting," which may
allow DOJ to enact some procedure beyond that provided
by CANRA. . . .
However, there are no regulations that provide
additional regulatory procedures for challenging a
listing on the CACI or the validity of the underlying
report.
. . . In Humphries v. County of L.A . (2009) 554 F.3d
1170, plaintiff parents were accused of abuse by their
child. The parents were arrested, and had their other
children taken away from them. When a doctor
confirmed that the abuse charges could not be true,
the State dismissed the criminal case against them.
The parents then petitioned the criminal court, which
found them "factually innocent" of the charges for
which they had been arrested and ordered the arrest
records sealed and destroyed. Similarly,
the juvenile court dismissed all counts of the
dependency petition as "not true." Nevertheless, the
parents were identified as substantiated child abusers
and placed on CACI. The parents thereafter attempted
to be removed from CACI, but found that
California offers no procedure to remove their
listing.
Hence, the parents instituted a claim alleging that
the County of Los Angeles violated their Fourteenth
Amendment right to procedural due process by listing
and continuing to list them on the CACI without any
available process to challenge that listing. The
Ninth Circuit Court of Appeals ruled in favor of
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the parents. The court found that the
resultant stigma, plus the various statutory
consequences of being listed on CACI, affected their
liberty interests. The lack of any meaningful,
guaranteed procedural safeguards before the initial
placement on CACI combined with the lack of any
effective process for removal from CACI violated the
parents' due process rights.
While the court found that the Act did not provide any
procedural safeguards for those listed in the CACI,
the court also concluded that nothing in the CANRA
prevented the sheriff's department, as the reporting
agency, from developing a procedure to allow the
Humphries to challenge their listing. The court
stated, "Nothing we have said here infringes on the
ability of the police, or other agencies, to conduct a
full investigation into allegations of child abuse.
The need for such investigations--which, we
acknowledge, are intrusive and difficult to
conduct--is obvious. Nor does anything we have said
undermine the ability of appropriate law enforcement
agencies to maintain records on such investigations,
even if the investigations do not result in formal
charges or convictions . . . What California has done
is not just maintain a central investigatory file, but
attach legal consequences to the mere listing in such
files. Once California effectively required agencies
to consult the CACI before issuing licenses, the CACI
ceased to be a mere investigatory tool. The fact of
listing on the CACI became, in substance, a judgment
against those listed." (citation.)
Beyond declaring that California's procedural
protections are "constitutionally inadequate," the
court refused to spell out precisely what kind of
procedure the State must create. . . . "The state has
a great deal of flexibility in fashioning its
procedures, and it should have the full range of
options open to it. We do not hold that California
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must necessarily create some hearing prior to listing
individuals on CACI. At the very least, however,
California must promptly notify a suspected
child abuser that his name is on the CACI and provide
'some kind of hearing' by which he can challenge his
inclusion." (citation.)
This bill provides that information relevant to a
report made relating to a child suffering from serious
emotional damage or in substantial risk thereof may be
given to an investigating or licensing agency. Under
Humphries , such agencies should provide procedures to
allow persons to challenge their CACI listing to
protect Due Process Rights. To date, there has been
no statutory change in the CACI removal procedures.<5>
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<5> Analysis of AB 2339 prepared by the Assembly Committee on
Public Safety (April 13, 2010).