BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
7
1
7
AB 717 (Ammiano)
As Amended June 9, 2011
Hearing date: June 21, 2011
Penal Code
AA:mc
CHILD ABUSE CENTRAL INDEX:
DUE PROCESS
HISTORY
Source: Author
Prior Legislation: SB 1313 (Kuehl) - Ch. 842, Stats. 2004
AB 2442 (Keeley) - Ch. 1064, Stats. 2002
SB 1312 (Peace) - Ch. 1106, Stats. 2002 - amended
into unrelated bill
AB 1447 (Granlund) - 1999-2000 session; died in the
Senate
SB 644 (Polanco) - Ch. 842, Stats. 1997
AB 1065 (Goldsmith) - Ch. 844, Stats. 1997
SB 2457 (Russell) - Ch. 1497, Stats. 1988
Support: Child and Family Protection Association; County of
Orange Board of Supervisors (if amended); Children's Law Center
of Los Angeles; individuals
Opposition:One individual
Assembly Floor Vote: Ayes 75 - Noes 0
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KEY ISSUE
SHOULD SEVERAL CHANGES TO THE LAWS CONCERNING THE CHILD ABUSE
CENTRAL INDEX - AN INDEX WITH NEARLY 850,000 "SUSPECT" NAMES
MAINTAINED BY THE DEPARTMENT OF JUSTICE - BE MADE, AS SPECIFIED?
PURPOSE
The purpose of this bill is to make several changes to the laws
concerning the Child Abuse Central Index ("CACI") maintained by
the Department of Justice, most notably including the following:
1) provide that reports which are "substantiated" instead of
"not unfounded" could go into CACI, as specified; 2) limit CACI
reporting agencies to welfare and probation departments; 3)
provide a due process hearing for some persons on or subject to
CACI listing, as specified; and 4) provide that CACI listings of
persons 100 years of age or older be purged.
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.)
Current law requires the Department of Justice ("DOJ") to
maintain an index of all reports of child abuse and severe
neglect ("CACI") submitted by specified reporting agencies.
CACI is required by statute to be continually updated and not
contain any reports determined to be unfounded. (Penal Code �
11170(a)(1).)
Current law states that the DOJ shall act only as a repository
of the suspected child abuse or neglect reports that are
maintained in CACI, and that the reporting agencies are
responsible for the accuracy, completeness, and retention of
reports. (Penal Code � 11170(a)(2).)
Current law requires DOJ to "immediately notify an agency" that
submits a mandated child abuse or neglect report, or a district
attorney who requests notification, of any information in CACI
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that is relevant to the known or suspected instance of child
abuse or severe neglect reported by the agency. Current law
further requires that agency to make that information available
to additional persons, as specified. (Penal Code � 11170(b).)
Current law requires police departments, sheriff's departments,
probation departments if so authorized by the county, and county
welfare departments to forward to DOJ a report of every case of
suspected child abuse or neglect which is determined not to be
unfounded, as defined. (Penal Code � 11169(a).)
Current law requires that information from an inconclusive or
unsubstantiated suspected child abuse or neglect report shall be
deleted from CACI after 10 years if no subsequent report
concerning the suspected child abuser is received within the
10-year period. (Penal Code � 11170(a)(3).)
Current law defines the following types of suspected child abuse
or neglect reports:
a) An "unfounded report" is a report that is
determined by the investigator to be false,
inherently improbable, an accidental injury, or not
to constitute child abuse or neglect, as defined.
b) A "substantiated report" is a report that is
determined by the investigator based on some
credible evidence to constitute child abuse or
neglect, as defined.
c) An "inconclusive report" is a report that is
determined not to be unfounded, but in which the
findings are inconclusive and there is insufficient
evidence to determine if child abuse or neglect, as
defined, has occurred. (Penal Code � 11165.12.)
Current law requires at the time a reporting agency forwards a
report of suspected child abuse or neglect to the DOJ, the
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agency must notify the known or suspected child abuser that he
or she has been reported to CACI. (Penal Code � 11169(b).)
Current law provides that any person may determine if he or she
is listed in the CACI by making a request in writing to the DOJ,
as specified. DOJ is required to make available to the
requesting person information identifying the date of the report
and the submitting agency; the requesting person is responsible
for obtaining the investigative report from the submitting
agency, as specified. (Penal Code � 11170(f).)
Current law allows persons listed in CACI to obtain the report
of suspected abuse and information contained within his or her
CACI listing, as specified. (Penal Code � 11167.5(b)(11).)
Current law provides that if a person is listed in the CACI only
as a victim of child abuse or neglect and that person is 18
years of age or older, that person may have his or her name
removed from the index by making a written request to DOJ.
(Penal Code � 11170(g).)
This bill would make the following revisions to CACI:
Provide that reports to be forwarded to DOJ for
inclusion in CACI are those determined to be
"substantiated," instead of those "determined not to be
unfounded ...," as specified;
Provide that, on and after January 1, 2012, a police
department or sheriff's department shall no longer
forward to DOJ a report in writing of any case it
investigates of known or suspected child abuse or severe
neglect;
Provide that sheriffs and police departments continue
to retain child abuse or neglect investigative reports
that result or resulted in a CACI listing as is now
required under current law, as specified;
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Provide that only substantiated reports go into CACI,
and that any other report would be removed, instead of
inconclusive or unsubstantiated reports being deleted
from CACI after 10 years, as specified;
Extend existing notice requirements to apply where DOJ
forwards CACI information, as specified;
Clarify that CACI information shall be shared with
Child Death Review Teams for investigative purposes only,
as specified;
Provide the following with respect to the right to a
due process hearing:
Any person who was listed on the CACI prior to
January 1, 1998, and who did not receive notice
regarding that listing, may request and be entitled
to a due process hearing from the agency that
requested his or her inclusion in the CACI within
three years of first learning of his or her CACI
listing.
Any person who received notice of his or her
CACI listing on or after January 1, 1998, but before
March 1, 2008, may request and be entitled to a due
process hearing from the agency that requested his or
her inclusion in the CACI.
Provide that if, "after a due process hearing pursuant
to this section, it is determined the person's CACI
listing was based on a report that was not substantiated,
the agency shall notify the Department of Justice of that
result and the department shall remove that person's name
from the CACI"; and
Provide that any person listed in the CACI who has
reached 100 years of age shall have his or her listing
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removed from the CACI.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not aggravate the prison overcrowding crisis
described above.
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COMMENTS
1. Stated Need for This Bill
The author states in part:
AB 717 is a response to several court decisions, which
collectively state that the Child Abuse Central Index
(CACI) is unconstitutional because it does not notice
all people of their inclusion in CACI and 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.
. . . CACI is predominantly used by regulatory
agencies like the State Department of Social Services,
a county welfare department, a Court Appointed Special
Advocate program, a tribal court or a tribal child
welfare agency, and other licensing agencies. In
fact, 98% of all CACI search requests are regulatory
in nature for the purpose of foster care, child care,
employment, etc. Many other states, like Connecticut,
Illinois, and New York, provide a process to challenge
your listing in the CACI. California does not.
A federal appeals court ruled that Los Angeles County
should pay damages to a couple because they are still
listed in CACI, despite the fact that a state court
had ruled that the allegations of abuse were not true
and the couple was factually innocent. Later the U.S.
Supreme Court intervened to hear Los Angeles County's
claim that the State of California is at fault because
it does not provide a procedure for the couple to have
their names removed from CACI. This is just one
example of the many court cases related to CACI
inclusion over the years that have cost the Department
of Justice and Department of Social Services more than
2 million dollars in attorney fees alone, not
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including Attorney General fees or DSS Staff Counsel
costs.
AB 717 would make the Child Abuse Central Index (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.
. . .
According to the Department of Justice as of April 15,
2011, CACI contains 777,145 reports of child abuse or
neglect, of which 145,604 have been found
unsubstantiated. Of the remaining 631,541
substantiated reports listed, we know that 25,544
listings have been noticed and provided due process.
AB 717 will provide remedies to the remaining listings
for due process.
2. What This Bill Would Do
Since its inception in the 1960's, over 770,000 reports and
nearly 850,000 "suspects" have been entered into the Child Abuse
Central Index ("CACI") maintained by the Department of Justice.
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This is not an index of persons who necessarily have been
convicted of any crime; it is an index of persons against whom
reports of child abuse or neglect have been made, investigated
and, according to standards that have changed over the years,
determined by the reporting agency (local welfare departments
and law enforcement) to meet the requirements for CACI
inclusion.
As noted by the author, over the last several years numerous
lawsuits have challenged CACI, principally on issues relating to
due process of law. In previous sessions, the Legislature has
considered measures to address some of the concerns about CACI
and has passed measures now reflected in statute.
This bill would make several changes to the laws concerning
CACI. Most notably those changes would 1) provide that reports
which are "substantiated" instead of "not unfounded" would go
into CACI, as specified; 2) limit CACI reporting agencies to
welfare and probation departments; 3) provide a due process
hearing for some persons on or subject to CACI listing, as
specified; and, 4) provide that CACI listings of persons 100
years of age or older be purged.
3. Due Process
This bill is intended to provide due process protections for
persons who are listed in CACI. The due process hearings this
bill would require are as follows:
CACI listing prior to January 1, 1998, and no notice:
the listed person has a right to
a hearing within three years of first learning of his or
her CACI listing;
Notice of CACI listing received on or after January
1, 1998, but before March 1, 2008: the listed person has
a right to a hearing.
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
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informational privacy, thus entitling the person to due process.
(Id. at pp. 284-285.) The statutory scheme in CACI contains an
implicit right to a hearing. (Id. at p. 285.)
As currently drafted, this bill would not result in everyone
listed in CACI having had the right to a hearing contesting
their listing. Persons listed on CACI prior to January 1, 1998,
who received notice of their listing (but no administrative
remedy for getting off the index) would not have the right to a
hearing under this bill. In addition, persons listed on CACI
within specified timeframes would not have a hearing right under
this bill because they failed to seek a hearing within three
years of finding out they were on CACI. Other persons who have
been added to CACI by a law enforcement agency would remain on
CACI without a hearing right. Although the bill would change
CACI to include only "substantiated" reports (including, staff
is advised, historical determinations of "abuse suspected" and
"investigation initiated"<1>), which would appear to purge from
the index approximately 145,000 reports, it would not assure
that everyone listed on CACI has had the right to a hearing.
The author and members of the Committee may wish to discuss the
need for revising this bill to provide all persons listed on
CACI with the opportunity to challenge their CACI listing
through a hearing that meets due process requirements. In
addition, members and the author may wish to discuss the
implications of extending CACI hearing rights only to a subset
of persons on the index.
SHOULD THIS BILL BE AMENDED TO PROVIDE A RIGHT TO A HEARING THAT
MEETS DUE PROCESS REQUIREMENTS TO ANY PERSON LISTED ON CACI,
REGARDLESS OF WHEN THEY WERE LISTED?
4. Standard for Including a Report in CACI
Current law generally requires local welfare departments and law
enforcement to submit to CACI every case it investigates of
---------------------------
<1> These categories are no longer set forth in statute.
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known or suspected child abuse or severe neglect which is
determined not to be unfounded , as specified. (Penal Code �
11169(a).) "Unfounded" for this purpose means the report is
determined by the investigator who conducted the investigation
to be 1) false; 2) inherently improbable; 3) involve an
accidental injury; or 4) not constitute child abuse or neglect.
(Penal Code � 11165.12.)
This bill would change the standard for what reports can go into
CACI to "substantiated" reports. In this context
"substantiated" has the following definition:
"Substantiated report" means a report that is
determined by the investigator who conducted the
investigation to constitute child abuse or neglect, as
defined in Section 11165.6, based upon evidence that
makes it more likely than not that child abuse or
neglect, as defined, occurred. (Penal Code �
11165.12.)
It appears that this bill may have the effect of generalizing
the standard for what reports could be submitted to CACI, and
with that change eliminating some objective standards used under
the current framework. Under current law, only reports not
found by an investigator to be false , inherently improbable , to
involve an accidental injury , or to not constitute child abuse
or neglect can go into CACI. Under this bill, reports
determined by an investigator to constitute child abuse or
neglect would go into CACI. Members may wish to consider and
discuss whether the existing standard, which sets forth four
specific criteria for establishing whether a report is
"unfounded" may be a clearer and more objective standard for
CACI inclusion.
To the extent the existing standard and application of "not
unfounded" may be confusing as a matter of statutory drafting,
if the change to the standard proposed by this bill is retained,
members may wish to consider using its descriptive language as
part of the definition of "substantiated report" to include the
following sentence: "A substantiated report shall not include a
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report where the investigator who conducted the investigation
found the report to be false, inherently improbable, to involve
an accidental injury, or to not constitute child abuse or
neglect as defined in Section 11165.6."
SHOULD THE EXISTING OBJECTIVE STANDARDS FOR WHAT REPORTS CANNOT
SUPPORT A CACI LISTING BE ELIMINATED, AS PROPOSED BY THIS BILL?
SHOULD THESE EXISTING OBJECTIVE STANDARDS INSTEAD BE RETAINED?
5. "Due Process Hearing"
This bill employs the term "due process hearing." The Orange
County Board of Supervisors, which supports this bill if
amended, suggests that the bill be amended instead to use the
term "grievance hearing," which is consistent with the process
used in that county. Consistent with this concern and the Burt
case noted above, the author may wish to revise this reference
to instead provide for "a hearing that meets due process
requirements."
SHOULD THIS AMENDMENT BE MADE?
6. Background: Child Abuse Central Index
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 website:
The Attorney General administers the Child Abuse
Central Index (CACI), which was created by the
Legislature in 1965 as a tool for state and local
agencies to help protect the health and safety of
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California's children.
Each year, child abuse investigations are reported to
the CACI. 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, sheriffs, county
welfare and probation departments.
The information in the Index is available to aid law
enforcement investigations, prosecutions, and to
provide notification of new child abuse investigation
reports involving the same 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 checks for
other possible child placements, and adoptions.
Dissemination of CACI 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 the DOJ a report of
every child abuse incident it investigates, unless the
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incident is determined to be unfounded or general
neglect. Each reporting agency is responsible for the
accuracy, completeness and retention of the original
reports. The CACI serves as a "pointer" back to the
original submitting agency.<2>
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
itself.<3>
Information available from DOJ indicates that CACI contains the
following aggregate information as of May 2, 2011:
Reports: 773,373
Suspects: 849,866
---------------------------
<2> http://ag.ca.gov/childabuse/index.php.
<3> 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 received from
California CPAs that is maintained by DOJ pursuant to Penal Code
section 11170(a). (CACI) consists only of those reports of
child abuse that meet the criteria specified in the Child Abuse
and Neglect Reporting Act (Penal Code section 11164, et seq.)
and that are complete as specified by these regulations. "CACI
is a reference file and is used to refer authorized individuals
or entities to the underlying child abuse investigative files
maintained at the reporting CPA. It is the responsibility of
authorized individuals or entities to obtain and review the
underlying CPA investigative report file 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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7. Background: CACI Criticism and Controversy
The Child Abuse Central Index has been the object of criticism
and controversy by some for over a decade. A 1999-2000 law
review article described some of the problems associated with
indices such as CACI:
Reports of child abuse and neglect continue to rise in
America. Yet only a minority of those reports which
are investigated by child welfare agencies are
actually substantiated. In fact, there has been "a
steady increase in the number and percentage of
unfounded reports since 1976 when approximately 35% of
reports were unfounded. . . . Today about 60% of all
child abuse cases are classified as "unfounded' or
"unsubstantiated. " However, because of the
difficulty of proving child abuse, a finding that a
report is "unsubstantiated" does not necessarily mean
that abuse did not occur. Thus, every state has faced
the dilemma of balancing the need to adequately
protect children by collecting and investigating
reports of child abuse and neglect with the need to
provide those accused of abuse sufficient due process
protection.
Today, all states have statutes making child abuse
reports and the documents filed in dependency courts
confidential. Over the past several years, however,
legislatures have continued to add to the list of
individuals excluded from the confidentiality
provisions. "The current trend seems to be the
increasing availability of child abuse and neglect
records to an expanding variety of groups and people."
. . .
In light of the previous studies' findings of program
inadequacies and the low percentage of cases in which
the indexed data actually had an effect on a child
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abuse investigation, it is difficult to understand how
the Legislature can statutorily describe the Index as
being so successful. For example, what empirical
evidence has been presented to support the statement
that the Index has permitted "child protective
agencies to quickly and accurately identify cases of
child abuse that would otherwise go undetected"? This
statement demonstrates a significant misunderstanding
about the Index. First, the Index merely gives the
names of alleged abusers and child victims; it does
not give any details of those cases. In order to get
those details, the investigator must contact the
original social worker to review the file.
However, in a substantial number of cases, those files
just do not exist. "The index functions as a
"pointer' file providing child abuse investigators ...
with access to statewide summary information on known
or suspected child abuse. Child abuse investigators
must contact contributing agencies for more complete
information." The study indicated that only about
fifty percent of CPAs routinely seek to obtain copies
of the original reports and that about thirteen
percent "who had attempted to obtain one �an original
report] had a problem" in obtaining the report.
Therefore, if only fifty percent of CPAs attempt to
acquire the original social worker's report, and in
many of those cases cannot obtain the report, one
might conclude that in very few cases are CPAs getting
much relevant data by using the Index.
Furthermore, there does not appear to be any analysis
of the California Central Index which has studied the
effectiveness of its two independent goals: (1)
providing CPA personnel tools for investigating
individual cases of alleged child abuse; and, (2)
providing licensors with predictive data. As one
commentator has recently noted, the CPA goal of
investigating a child's case may not be compatible
with the needs of licensing agencies. "A single
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registry system may not be able to meet these
disparate goals."<4>
Partially in response to the criticisms noted above, in 2002 the
Legislature passed legislation establishing a task force "for
the purpose of reviewing (CANRA) and addressing the following:
(1) The value of the Child Abuse Central Index in
protecting children.
(2) Changes needed with respect to the Child Abuse and
Neglect Reporting Act, including but not limited to, the
operation of the Child Abuse Central Index." (Penal Code �
11174.4(a).)
The Task Force met throughout 2003, and produced its report in
March of 2004. The Task Force formed three subcommittees to
address due process, investigations and definitions. A total of
fourteen meetings, nine by the full Task Force and five by its
subcommittees, were held.
8. Opposition
An attorney who for several years has represented persons listed
in CACI opposes this bill. She states in part:
The Bill's stated goals of maintaining only
"substantiated" Index listings and providing
Index-listed individuals with "due process" are
clearly sound. But the terms "substantiated" and "due
process" convey meanings which the Bill, as currently
written, would not actually achieve. For example, the
Bill does not address the fact that most of the
listings accumulated in the Index - including listings
now deemed "substantiated" - were created long before
2005, when the
current definition of "substantiated report" first
appeared in CANRA . . . ; and even that definition
----------------------
<4> Pandora's Box: Opening Child Protection Cases to the Press
and Public (1999/2000)(27 W. St. U.L. Rev. 181(citations
omitted), William Wesley Patton, Professor, Whittier Law School.
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applies only to the manner in which the original
investigator classifies a report. . . . CANRA still
fails to define the term "substantiated" for purposes
of any due process challenge of a listing, and still
fails to set forth any definitions or criteria for
providing "due process." Unless these statutory
omissions are rectified, the Bill would have the
harmful effect of recasting, as "substantiated,"
listings which in fact have never been "substantiated"
in the common sense of that term - i.e., established
by proof.
. . .
. . . Currently I represent plaintiffs Craig and
Wendy Humphries in their federal civil rights action
against the California Attorney General in official
capacity ("State") and Los Angeles County ("County").
The suit contests the Humphries'
own inclusion in the Index as well as Index-related
policies of the County and the State. The case is now
on remand to the United States District Court for the
Central District of California, following the decision
of plaintiffs' interlocutory appeal, Humphries v.
County of Los Angeles, 554 F.3d 1170 (9th Cir. 2009)
("Humphries"). In Humphries, the Ninth Circuit held,
inter alia, that (1) "California's maintenance of the
CACI violates the Due Process Clause of the Fourteenth
Amendment because identified individuals are not given
a fair opportunity to challenge the allegations
against them," id., 1176; (2) "CANRA creates too great
a risk of individuals being placed on the CACI list
who do not belong there, and then remaining on the
index indefinitely," id., 1200-1201; (3) "�a]t the
very least, . . . California must promptly �a] notify
a suspected child
abuser that his name is on the CACI and �b] provide
"some kind of hearing" by which he can challenge his
inclusion," id., 1201; and (4) "the standards for
retaining a name on the CACI after it has been
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challenged ought to be carefully spelled out," id.
(Emphasis added.)
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. . .
Since 1986, the Penal Code has expressly prohibited
the submission of an investigation report for entry in
the Index unless the submitting agency "has conducted
an active investigation and determined that the report
is not unfounded, as defined in Section 11165.12." (�
11169(a); . . .) Section 11165.12(a) defines an
"unfounded report" as one "determined by the
investigator who conducted the investigation �1] to be
false, �2] to be inherently improbable, �3] to involve
an accidental injury, or �4] not to constitute child
abuse or neglect, as defined in Section 11165.6."
Thus, for the past 25 years, an individual has had a
right
not to become listed in the Index in the first place
unless an investigator has actively investigated the
report of suspected abuse and determined it meets none
of these four conditions.
. . .
The Bill would delete this prerequisite, and instead
would have reports submitted to the Index based solely
on the investigator's untested view that evidence
gathered in the investigation "makes it more likely
than not that child abuse or neglect ... occurred."
(� 11165.12(b), effective 1/1/2005; see Cal. Stats.
2004, ch. 842, � 6.) This is what a newly-reported
"substantiated" report would be.
. . .
Since the mid-1980's, DOJ has derived Index listings
from various . . . forms, filled in and sent to DOJ by
California county welfare and probation departments
and local law enforcement agencies that investigate
reports of suspected child abuse or neglect
("submitting agencies"). Each of the various forms
(More)
AB 717 (Ammiano)
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presents at least two classification options for the
submitting agency to select. The choices over the
years have included such terms as "preliminary,"
"unsubstantiated," "unfounded," "investigation
initiated," "unsubstantiated (insufficient evidence),"
"no investigation," "abuse suspected" and
"unsubstantiated-abuse not proven." Before 1991,
"unfounded" was the only report classification defined
by CANRA.
Forms issued prior to March 1991 misdefined "unfounded
report," and misinstructed the reporting agencies that
unless they proved the nonoccurrence of the alleged
abuse, the matter must be reported for listing in the
Index. No reports entered in the system before 1991
were marked "substantiated" by the submitting
agencies. "Substantiated" did not become a
classification option on any report form until 1991,
when "substantiated report" was first defined by law.
Before that, and even after that, agencies sent
reports to DOJ under a myriad of other
classifications, not defined by law. . . . Now,
however, DOJ deems reports submitted as anything other
than "unsubstantiated" or "inconclusive" to be
"substantiated" reports. Reports marked
"investigation initiated" or "abuse suspected" are
slated for permanent retention. The Bill apparently
would retain such reports until the subjects reach the
age of 100.
"California can have no interest in
maintaining a system of records that
contains incorrect or even false
information. . . . �T]he more false
information included in a listing index such
as the CACI, the less useful it becomes as
an effective tool for protecting children
from child abuse. In addition, there is a
great human cost in California, as
elsewhere, to being falsely accused of being
a child abuser. These costs are not only
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borne by the individuals falsely accused,
but by their children and extended families,
their neighbors and their employers.
Indeed, with the same passion
that California condemns the child abuser
for his atrocious acts, it has an interest
in protecting its citizens against such
calumny."
Humphries, 554 F.3d at 1194.<5>
***************
---------------------------
<5> Letter from Esther G. Boynton to the Chair dated June 15,
2011, on file with the Committee (some references omitted;
emphasis in original).