BILL ANALYSIS �
AB 717
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Date of Hearing: May 3, 2011
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 717 (Ammiano) - As Amended: April 25, 2011
SUMMARY : Amends existing provisions of law relating to the
Child Abuse Central Index (CACI). Specifically, this bill :
1)Changes CACI to include reports only of substantiated cases.
2)Removes inconclusive and unfounded reports from CACI.
3)Provides that any person listed in CACI who has reached age
100 is to be removed from CACI.
4)Provides that on or after January 1, 2012, law enforcement
need no longer report to the Department of Justice (DOJ) cases
law enforcement investigates of known or suspected child abuse
or severe neglect.
5)Allows any person listed on the CACI before January 1, 1998
who did not receive notice of inclusion to request a hearing
from the reporting agency within three years of learning of
his or her CACI listing.
6)Allows any person listed on the CACI on or after January 1,
1998, but before March 1, 2008, to request a hearing to
request a hearing from the reporting agency.
7)Requires a reporting agency to notify the DOJ when a due
process hearing results in a finding that a CACI listing was
based on an unsubstantiated report.
8)Requires the DOJ to remove a person's name from the CACI when
it is notified that the due process hearing resulted in a
finding that the listing was based on an unsubstantiated
report.
EXISTING LAW :
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1)Requires that any specified mandated reporter who has
knowledge of or observes a child, in his or her professional
capacity or within the scope of his or her employment whom the
reporter knows, or reasonably suspects, has been the victim of
child abuse, shall report it immediately to a specified child
protection agency. �Penal Code Section 11166(a).]
2)Requires specified local agencies to send the California DOJ
reports of every case of child abuse or severe neglect that
they investigate and determine to be either true or
inconclusive, but not those that are found to unfounded.
�Penal Code Section 11169(a).]
3)Defines the following types of suspected child abuse or
neglect reports:
a) "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) "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) "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
Section 11165.12.)
4)Directs the DOJ to maintain an index, referred to as the CACI,
of all reports of child abuse and neglect submitted as
specified. �Penal Code Section 11170(a)(1).]
5)Allows DOJ to disclosure information contained in the CACI to
multiple identified parties for purposes of child abuse
investigation, licensing, and employment applications for
positions that have interaction with children. �Penal Code
Section 11170(b).]
6)Requires DOJ to provide written notification to a person
listed in the CACI. �Penal Code Section 11169(b).]
7)Allows an identified child abuser to obtain the report of
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suspected abuse and information contained within his or her
CACI listing. �Penal Code Section 11167.5(b)(11).]
8)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 Section 11170(a)(3).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 717 is a
response to several court decisions which collectively state
that CACI is unconstitutional because it does not notice all
people of their inclusion in CACI, offer a due process
hearing, or give people listed in CACI with unsubstantiated
cases of abuse or neglect a procedure to have their names
removed from the database.
"AB 717 would make CACI constitutional by only including the
reports from local agencies of investigations that are
substantiated. Agencies that have previously filed
substantiated reports that have been found unsubstantiated
shall notify DOJ for removal from CACI. Law enforcement
agencies would be no longer required to report investigations
to CACI.
"Additionally, any person who has not received notice of their
CACI listing prior to
January 1, 1998, when notice was not legally required, may
request a due process hearing as well as any person after
January 1, 1998, who received notice, but not a hearing. Any
case that has been found unsubstantiated through a due process
hearing shall be removed from CACI.
"Finally, AB 717 would require the DOJ to purge all
unsubstantiated listings and all listings when the person has
reached 100 years of age."
2)CACI Litigation Background :
a) The Child Abuse and Neglect Reporting Act: In 1963, the
Legislature began requiring physicians to report suspected
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child abuse. �See Smith v. M.D. (2003) 105 Cal.App.4th
1169 (discussing evolution of child abuse detection laws).]
Two years later, the Legislature expanded the reporting
scheme to require that instances of suspected abuse and
neglect be referred to a central registry maintained by
DOJ. In the early 1980s, the Legislature revised the
then-existing laws and enacted the Child Abuse and Neglect
Reporting Act (CANRA), which created the current version of
the CACI. These revisions did not require that listed
individuals be notified of the listing, nor were
individuals even able to determine whether they were listed
in the CACI.
b) Coe v. City of Los Angeles: In 1997, the Legislature
revamped CANRA to provide more protections to persons
listed in CANRA. As a result, a child protective agency
placing a person's name on CACI had to inform a person of
that fact. Also, CANRA was changed to require a purge of
inconclusive reports on the CACI after 10 years, and to
allow a listed person to access his or her information.
The legislative changes had the effect of mooting the Coe
lawsuit. It is possible that a person listed in the CACI
before the effective date of the legislative changes,
January 1, 1998, might still not know that he or she is on
the CACI.
c) The Burt Litigation: In Burt v. County of Orange (2004)
120 Cal.App.4th 273, the Court of Appeal held that a CACI
listing implicates an individual's state constitutional
right to familial and informational privacy, thus entitling
the person to due process. (Id. at pp. 284-285.) Although
the CACI does not explicitly grant a hearing for a listed
individual to challenge placement on the CACI, the
statutory scheme contained an implicit right to a hearing.
(Id. at p. 285.) The court declined to provide guidance
on what procedures that hearing should include. The court
merely stated that the county social services agency was
required to afford a listed individual a "reasonable"
opportunity to be heard. (Id. at p. 286.)
d) The Gomez v. Saenz Settlement: The lawsuit settlement
provided due process rights for individuals listed on the
CACI by county social service agencies, but not law
enforcement agencies. The settlement required that,
beginning March 1, 2008, the agencies provide notice of a
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CACI listing and of the right to request a grievance
hearing. Effective March 1, 2008, counties are to provide
two forms to individuals who are referred for listing. In
the notice form, the county must include case specific
information discovered in the child abuse investigation.
The second form is the one to be used to request a
grievance hearing. When the form is sent, the hearing
procedures as well as the county contact information are
attached.
e) The Whyte Litigation: This litigation challenged DOJ's
policy of prohibiting listed individuals from examining and
challenging their CACI listings. A superior court judgment
determined that the DOJ's administration of the CACI
violated not only the state constitutional right to
privacy, but also the Information Practices Act of 1977.
As a result, DOJ redrafted its regulations governing the
CACI.
f) Humphries v. County of Los Angeles: In a federal civil
action, the Ninth Circuit Court of Appeals held that the
stigma of being listed in the CACI and the statutory
consequences of being listed constitute a liberty interest
of which plaintiffs cannot be denied without due process.
�Humphries v. County of Los Angeles (9th Cir. 2009) 554
F.3d 1170, 1185.] The CACI violates the due process
clause of the Fourteenth Amendment as it does not provide
identified individuals a fair opportunity to challenge the
allegations. (Id. at pp. 1200.) Specifically, the court
found the current procedure provided to correct erroneous
information submitted to the CACI by law enforcement is
inadequate because "California provides no formal mechanism
for requesting that an investigator review a report or for
appealing an investigator's refusal to revisit a prior
report." (Id. at p. 1192.) The person seeking review must
hope the investigator is responsive. (Id. at p. 1193.)
g) Los Angeles County v. Humphries: After the Ninth
Circuit found the Humphries should get declaratory relief,
attorney fees, and possibly damages, the County of Los
Angeles appealed to the United States Supreme Court. (See
Los Angeles County v. Humphries (2010) 131 S.Ct. 447.) The
county argued that the Humphries should not have prevailed
because they failed to show that their deprivation was the
result of a county policy or custom as required by Monell
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v. Department of Social Services (1978) 436 U.S. 658, in
which the Court held that local governments can be directly
liable in a civil rights suit under 42 U.S.C. Section 1983
only when their action is the result of official policy or
custom. Los Angeles County argued that it was simply
following California law, and that it had not adopted an
independent policy of its own. (Id. at p. 450.) The Court
concluded the "policy or custom" requirement also applies
when plaintiffs seek prospective relief, such as an
injunction or a declaratory judgment. (Id. at p. 451.)
Nothing in the statute or case law suggests that this
causation requirement should change based on the form of
relief sought. (Id. at p. 453.) The Humphries were not
entitled to prospective declaratory relief or to damages.
3)Necessity for this Bill : This bill codifies several
requirements addressed in court settlements as well as
constitutional deficiencies noted in other cases.
4)CACI Criticism and Controversy : In a 2004 self-study, a
California task force reported on a pilot program in San Diego
County, where "DOJ discovered that approximately 50 percent of
the CACI listings originating from �one agency] should be
purged because the supporting documentation was no longer
maintained at the local level." �Child Abuse and Neglect
Reporting Act Task Force Report 24 (2004).] The task force
found that "�if] this percentage held true for the entire
State it is possible that half of the 800,000 records which
DOJ presently maintains in the CACI should be purged." (Ibid.)
Not only does this create a problem for the individuals
improperly listed, but the more false information is included
in the CACI, the less useful CACI becomes as an effective tool
for protecting children from abuse.
5)Argument in Support : According to Child and Family Protection
Association , "AB 717 appropriately amends Sections 11169 and
11170 of the Penal Code to specify that only 'Substantiated'
reports of child abuse or neglect shall be maintained in the
Child Abuse Central Index (CACI).
"Under current law, an investigation of child abuse or neglect
results in a report that comes to one of 3 possible
conclusions: (1) 'Unfounded'; (2) 'Inconclusive'; or (3)
'Substantiated' (PC 11165.12). Under current law, the
Department of Justice is required to maintain in the CACI all
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'Inconclusive' and 'Substantiated' reports (PC 11169 & 1170).
Upon receiving a request pursuant to PC 11170, the Department
of Justice furnishes information about individuals who are
listed in the CACI.
"We believe that passage of AB 717 would bring about a very
favorable change to current law. AB 717 will help many
innocent individuals who, under current law, find themselves
trapped in a legal/administrative system where it is extremely
difficult to prove their innocence and to get their names
removed from the CACI.
"AB 717, as currently written, would protect the reputation and
very likely the ability of innocent individuals to apply for
or retain specified employment, licensing, or volunteer
status. These would be individuals who had been investigated
on an allegation of child abuse or neglect where the
conclusion of the investigation was 'inconclusive' and NOT
determined to be 'substantiated.' "
6)Prior Legislation :
a) SB 1312 (Peace), of the 2001-02 Legislative Session,
would have made numerous changes to CACI including the
purging of old reports. The provisions dealing with CACI
were deleted before SB 1312 was chaptered.
b) AB 2442 (Keeley), Chaptered 1064, Statutes of 2002,
established the CANRA Task Force for the purpose of
reviewing the act and CACI.
c) AB 1447 (Granlund), of the 1999-2000 Legislative
Session, made numerous changes to CACI including the
purging of old reports. AB 1477 was never heard by the
Senate Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Child and Family Protection Association
Opposition
AB 717
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None
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744