BILL ANALYSIS
AB 81
Page 1
Date of Hearing: March 27, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 81 (Torrico) - As Amended: March 6, 2007
As Proposed To Be Amended
SUBJECT : Child Protection: Safe Surrender
KEY ISSUES :
1)Should the time frame for permitting the surrender of newborn
children to designated "safe surrender" sites be increased
from 72 hours to 30 days?
2)Should a local fire agency, with approval from a local
governing body, be permitted to designate a safe surrender
site?
3)should the legislature appropriate $5 million to fund various
efforts to increase public awareness of the safe surrender
law?
SYNOPSIS
Under existing law, established in 2000 by SB 1368 (Brulte), a
parent or other person with lawful custody of a baby 72 hours
old or younger may surrender the newborn to a designated safe
surrender site without fear of criminal prosecution for child
abandonment. Designated safe surrender sites include a private
or public hospital or any other location designated by a county
board of supervisors. This bill would expand the scope of
existing law in two ways: (1) it would increase the amount of
time in which a parent or other person with custody could
surrender the child after its birth from 72 hours to 30 days;
and (2) it would permit a fire agency, with the approval of the
local governing body, to designate a fire station as a
safe-surrender site. This bill will appropriate $5 million to
increase public awareness of the law and will make clarifying
changes relating to the liability of the safe surrender site and
its personnel for the surrendered child.
Supporters contend that these measures are needed to increase
awareness of the law and better protect children over 72 hours
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old who may nonetheless still be at risk of abandonment.
Opponents, many of whom strongly support the safe surrender law,
contend that there is no evidence to support extending the time
frame to 30 days. Many of the opponents support providing more
funding to better publicize a law that they believe is working,
but they claim that extending the time frame will not save
lives, but instead will only permit persons to circumvent
established child protection and adoption procedures and create
other unwanted consequences. Unfortunately, as this analysis
details, there is a frustrating lack of evidence on the critical
issues.
SUMMARY : Expands the scope of the existing "safe surrender"
law that allows persons to surrender newborn children to a
designated safe-surrender site without fear of criminal
prosecution. Specifically, this bill :
1)Increases the time period in which a person may surrender an
infant under the provisions of the "safe surrender" law from
72 hours of age to 30 days old.
2)Permits a local fire agency, upon approval of the appropriate
local governing body, to designate a safe-surrender site.
3)Limits, under certain circumstances, the liability of the safe
surrender site and its personnel in relation to accepting the
surrendered child and the time prior to when the site or its
personnel knew, or should have known, that the child had been
surrendered.
4)Appropriates $5 million to the State Department of Social
Services to conduct a statewide campaign to increase awareness
of the safe surrender law and establish a toll-free telephone
number for providing education and assistance to the public
regarding the safe surrender site. Provides that $1 million
of the $5 million appropriation shall be used to fund
competitive grants to county social service agencies that
conduct safe surrender site program outreach.
EXISTING LAW :
1)Makes it a crime for a parent of or other person entrusted
with a child younger than 14 years of age to abandon the child
and to fail to provide for the child or to present the child
to an orphanage or similar institution as an orphan. (Penal
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Code Section 217.)
2)Makes it a crime for a parent willfully to fail, without
lawful excuse, to provide a child with necessary food,
clothing, shelter, medical assistance or other remedial care.
(Penal Code Section 270.)
3)Delineates the procedure for the surrender of a child 72 hours
or younger to a "safe surrender site" without incurring any
criminal liability under the state's child abandonment laws.
(Health & Safety Code Section 1255.7.)
4)Protects from prosecution under the state's child abandonment
laws a parent or other person having lawful custody of a child
72 hours old or younger, who voluntarily surrenders physical
custody of the child to personnel on duty at a safe surrender
site. (Penal Code Section 271.5.)
5)Exempts a safe-surrender site and its personnel from liability
for accepting and caring for a child that is over 72 hours old
in the good faith belief that the child was subject to the
existing law. Specifies, however, that existing law does not
grant immunity from liability for personal injury or wrongful
death resulting from medical malpractice. (Health & Safety
Code Section 1255.7 (h).)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : According to the author, this bill is a logical
extension of an existing law that has saved lives. California's
"Safe Surrender" law was initially enacted by SB 1368 (Brulte,
Chapter 824, Statutes of 2000). That bill provided that a
parent or other person in lawful custody of a newborn could
surrender that newborn to the personnel of a designated
safe-surrender site without fear of prosecution for child
abandonment. Forty-seven states have enacted similar
legislation since Texas adopted the first "safe haven" law in
1999. Other state laws vary in their particulars, but all were
prompted by well-publicized reports of mostly young mothers
abandoning newborns in dumpsters, alleyways, or public
restrooms. Safe haven laws seek to avoid such tragic outcomes
by permitting the parent of a newborn to anonymously surrender
the child to a safe surrender site, where the infant will
receive shelter, sustenance, and medical care instead of
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exposure to the elements and possible death.
Under California's existing law, a person may surrender an
infant to a designated "safe surrender" site, either a hospital
or some other designated site, such as a fire station. Research
shows that young women who abandon their newborns do so because
they hope to keep the birth a secret. Existing law, therefore,
permits a person to surrender the infant with complete
anonymity. The surrendering party is asked to voluntarily fill
out a medical questionnaire, but otherwise no questions are
asked. A bracelet attached to both the newborn and the
surrendering party permits a parent to reclaim the child within
14 days, so long as relinquishing the child to the parent would
not endanger the child. Within 48 hours of taking custody of
the child, the safe surrender site must notify the relevant
child protection agency, which in turn begins the process of
making the child a dependent of the court and setting the stage
for foster care or adoption.
AB 81 seeks to expand the scope of existing law most
substantively by expanding the time period in which a parent or
other person may surrender a child from 3 days to 30 days. In
addition, this bill would allocate $5 million dollars to
increase public awareness about the law. Finally, this bill
makes other changes relating to the liability of the safe
surrender site and its personnel and the manner in which a fire
station may be designated as a site.
History and Effectiveness of the Safe Surrender Law: When the
law was originally enacted, it contained a sunset date of
January 1, 2006. One of the primary reasons for including the
sunset provision was to determine whether or not the law would
achieve its objective. Although the official data provided by
the Department of Social Services (DSS) is not always
conclusive, many local governments, social service agencies, and
law enforcement agencies contend that the new law works well and
has saved lives. In light of this success, SB 116 (Chapter 625,
Statutes of 2005) eliminated the sunset date, thereby making the
law permanent.
According to the data posted on the DSS website, as of January
2007, 182 newborns had been surrendered to safe sites, while
about 146 newborns have been illegally abandoned. There is no
way of knowing whether the 182 newborns surrendered to safe
sites would have been illegally abandoned in dumpsters or other
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unsafe places in the absence of the law. However, it does
appear that since the law has been enacted, and especially since
it has been publicized, there has been a slight decrease in
illegal abandonment. For example, the number of infants
abandoned dropped from 30 in 2001 to 25 in 2003 and 17 in 2004,
before going up slightly, to just over 20 per year for 2005 and
2006. (DSS, Safely Surrendered Baby Law: Report to the
Legislature, January 2005; and DSS, Safely Surrendered Baby Law:
Fast Facts, both available on the DSS safe surrender website at
www.babysafe.ca.gov .) However, without data from the years
prior to the enactment of the bill, it is difficult to say
whether or not the numbers represent a real decline or a mere
statistical fluctuation.
It is also not possible to predict, given current date
constraints, whether extending the time frame for surrender will
save more lives. Extending the surrender period to 30 days will
save more lives only if some portion of the 146 illegally
abandoned babies were between 72 hours and 30 days old.
Although staff at DSS informed committee staff that all of the
newborns abandoned and discovered alive were "newly born," which
they define as less than 24 hours, the bill's author points out
that an infant abandoned outside of a Jack-In-The-Box restaurant
in Newark may have been up to two weeks old. At best the
evidence allows one to conclude that the vast majority of
abandoned children, whether found dead or alive, have thus far
reportedly been less than three days old.
ARGUMENTS IN SUPPORT : According to author and supporters, this
bill expands the scope of a live-saving law. The law, they
contend, has saved lives and extending the surrender period will
save even more. For the most part, the author and supporters
concede that the data is inconclusive, at least as to the effect
of extending the period of surrender. The author points out
that of the 47 states that have safe surrender laws, 22 have
surrender periods of 30 days or longer. Yet, neither the author
nor supporters provide evidence from those states showing how
many newborns over 72 hours have been surrendered or abandoned
illegally.
The author also points to a study conducted by Centers for
Disease Control Studies which found that the second highest peak
in risk for infant homicide occurs during the eighth week of
life. However, the relevance of this study is not entirely
clear, since this bill would only extend the period to 30 days,
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or just over four weeks. Moreover, infant homicide is not the
same as child abandonment, and the psychological state that
prompts a parent to kill a child is not necessarily the same as
the state that causes a parent to abandon a child.
Interestingly, the opponents of this bill cite this same study,
since it shows that the greatest risk of infant homicide (83%)
is during the first 24 hours.
For the most part, however, supporters of the 30 day surrender
period do not rely upon a statistical argument. The thrust of
their argument appears to be that if extending the time frame
saves even one life, then it is worth it. For example, the
American College of Obstetricians and Gynecologists concedes
that expanding the surrender period "may not significantly
increase the numbers of newborns protected under this program,
but if even a few lives can be saved, we think the program
expansion appropriate." Even if extending the time frame will
create some of the problems that opponents fear, the author
contends, those problems are easily outweighed by the value of
saving a human life.
Professor Michelle Oberman, of Santa Clara University School of
Law, has written extensively on the subject of mothers who kill
their infants. She acknowledges the general lack of evidence on
this subject but points out that, on the other hand, "there is
no credible reason to believe that this expansion of the law
will increase the risk of babies being abused," as was claimed
by the Governor in his veto message. In short, the lack of
evidence cuts both ways. Oberman points out that expanding the
surrender time will at the very least provide "a positive
alternative to the desperation that likely informs the impulsive
decision-making of young women contemplating abandoning their
newborns." Professor Oberman concludes that "there is, however,
far more to be gained than there is to be lost by this
particular expansion of the safe surrender law."
Arguments in Support of Other Provisions in the Bill : While the
most substantive and controversial part of this bill extends the
time frame for surrendering a child, this should not overshadow
its other important provisions.
AB 81 enhances existing law by appropriating $5 million to the
State Department of Social Services to conduct public awareness
campaigns, establish a toll-free telephone number to offer
assistance and answer questions about the law, and to assist
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publicity efforts conducted by local agencies. According to the
author, the safe surrender law is only effective to the extent
that mothers in crisis are aware of the law. For example, in
the Newark case cited by the author, the child was abandoned two
blocks away from a designated fire station. Whoever abandoned
the child also left extra diapers, apparently assuming that the
child would be found alive. Given this apparent intent, it
seems more than plausible that the person would have abandoned
the child at a safe surrender site if he or she knew about it.
In addition, the author claims, the fact that the number of
infants abandoned (146) is almost as high as the number
surrendered to safe sites demonstrates the state's failure to
adequately publicize the law. The author assumes, not
unreasonably, that at least some of those 146 babies would have
been taken to a safe surrender site if the mothers knew about
the law and the location of a safe surrender site. Most of the
groups that oppose extending the time for surrender to 30 days
support the use of state funds to better publicize the law's
existing provisions.
In addition, AB 81 permits a local fire agency, upon approval of
its local governing body, to designate a fire station as a safe
surrender site. Existing law makes private and public hospitals
safe surrender sites and allows a county board of supervisors to
designate a cite. Under existing law, many if not most fire
stations have already been designated by the counties as safe
surrender sites. This bill would permit the fire agency to
designate the site as long as it consults with the local
governing body and representatives of child welfare agencies.
Finally, AB 81 will clarify the liabilities and immunities that
the site and its personnel have for the surrendered child.
ARGUMENTS IN OPPOSITION : Opponents of this bill must be
separated into two categories: those who support the safe
surrender law, but oppose the 30-day surrender period; and those
who oppose the bill because they oppose the safe surrender
concept in general.
Safe-Surrender Law Supporters Who Oppose AB 81 : A number of
law enforcement and social service agencies strongly support the
safe-surrender law and are only opposed to extending the time
for surrender to 30 days. For the most part, opponents claim
that the original law was meant to address particular situations
in which newborns are at greatest risk of abandonment.
Expanding the bill to 30 days, opponents claim, does nothing to
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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)
claims that the 30-day provision cannot be justified by research
on child abandonment, is inconsistent with the policy of
anonymity, and circumvents well-considered child protection and
relinquishment policies. CWDA 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 either 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, there
is a high likelihood that young women in such a situation will
abandon a baby in an unsafe place. This is why the anonymity
guaranteed by the safe surrender is so essential.
Women who kill their babies after this initial period do so for
quite different reasons. They may suffer from post-partum
depression or mental illness, or perhaps they are motivated by a
misguided belief that the child will be better off dead or that
God is commanding them to kill their child. Clearly these women
need help, but CWDA contends that safe surrender sites will not
help them or their children. CWDA contends that women who have
cared for their children for up to 30 days have probably not
been able to keep this a secret from family and friends. They
would not benefit, therefore, from the anonymity of a
safe-surrender. 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 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, gather critically needed
medical information, and better secure the rights of
birthparents. This process is also better for children, who
otherwise may be denied information about their parental and
medical history.
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CWDA does not entirely oppose revisiting California's 72-hour
safe surrender limit, suggesting that a law extending the safe
surrender period to 7 days would reasonably balance the
immediate risk to newborns and the need for safeguards provided
by existing relinquishment laws.
The Los Angeles County Board of Supervisors opposes AB 81 unless
it is amended to remove the 30 day surrender, for essentially
the same reasons set forth by CWDA. The Los Angeles
Inter-Agency Council on Child Abuse and Neglect (ICAN), the Los
Angeles County Sheriff, and Los Angeles County District
Attorney's Office also oppose increasing the surrender period to
30 days. In addition to the arguments made by CWDA, these
agencies point to the possibility that extending the time period
will increase the likelihood that abusive parents will use the
safe surrender law to escape criminal responsibility for child
abuse or neglect. Although existing law only provides immunity
from child abandonment charges, opponents fear that, as a
practical matter, anonymity could be used to escape liability
for other crimes.
ICAN adds that extending the time for surrender could
potentially extend the time that a child is at risk "by delaying
the intervention of professionals who can help parents and
develop a plan for their child in a safe and caring manner."
As previously noted, the opponents discussed above do not oppose
the safe surrender law, as such, and are generally very
supportive of the provision in the bill that will appropriate
funds to better publicize existing law.
Bastard Nation and General Opposition to Safe Surrender Laws :
Bastard Nation, an organization concerned primarily with the
rights of adopted children, opposes this bill for the same
reasons that it opposed the initial law and the removal of the
sunset last year. Bastard Nation contends that safe surrender
laws allow parents to bypass the adoption process. Children who
are surrendered to a safe surrender site and subsequently
adopted lose the right to know their identity, medical history,
or cultural heritage, and they will forever lose their right to
identify their birth parents. In addition, bypassing the
adoption process greatly restricts the birthparents' right to
ever reclaim the child. And it allows one parent to surrender a
child without the knowledge or consent of the other parent
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(usually the father). Bastard Nation rejects the argument that
the safe surrender law can be justified on the grounds that it
might save a life. More generally, Bastard Nation contends that
the safe surrender law encourages unethical behavior,
legitimates abdication of parental responsibility, and will
logically lead to "'legal' abandonment of children of any age."
California Open opposes this bill for similar reasons, but also
questions whether the DSS data accurately reflects the number of
abandoned babies in California. California Open contends that
the law has had no impact on the number of babies abandoned
illegally statewide.
Last Year's AB 1873 and the Governor's Veto Message : This bill
is nearly identical to last year's AB 1873, by the same author,
which the Governor vetoed. Like many of the opponents discussed
above, the Governor supported the safe surrender law but feared
that extending the time for surrender would have unwanted
consequences, some of which might actually increase the risk to
children. Specifically, the Governor's veto message stated,
"The current 72-hour period contained in California
statutes allows for a 'no-questions asked' safe surrender
of a newborn and is supported by research and statistics
that indicate that most neonaticide occurs within the
first day. Some experts have raised concerns about this
bill, which I share, that instead of improving child
safety, increasing the time that a baby may be surrendered
from 72 hours to 30 days, will have the opposite effect,
putting newborns in greater risk by keeping them in an
unsafe environment without proper care and supervision."
AUTHOR AMENDMENT : In order to clarify an agreement made in
the Public Safety Committee relating liability, the author
agrees to take the following amendment in this Committee:
On page 6, line 22, after "child." add the following: "A
safe surrender site, or the personnel of a safe surrender
site, shall not be subject to civil, criminal, or
administrative liability for a surrendered child prior to
when the site or its personnel know, or should know, that the
child has been surrendered."
PRIOR LEGISLATION : SB 1368 (Brulte, Chapter 824, Statutes of
2000) established the safe surrender law.
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SB 139 (Brulte, Chapter 150, Statutes of 2003) made the
information about the parent confidential and allowed the county
to designate safe surrender sites other than a hospital
emergency room.
SB 1413 (Brulte, Chapter 103, Statutes of 2004) immunized those
who assist a parent or other person to safely surrender a
newborn from civil liability for injury or death of the newborn,
except for gross negligence, recklessness or willful misconduct.
SB 116 (Dutton, Statutes of 2005) eliminated the January 1,
2006, sunset provision of the original bill, thereby making the
law permanent.
REGISTERED SUPPORT / OPPOSITION :
Support
American College of Obstetrics and Gynecologists, District 9,
California.
AFSCME
California Catholic Conference
California Fire Chiefs Association
California Professional Firefighters
California PTA
California Public Defenders Association
City of Moreno Valley
Fire Districts Association of California
League of California Cities
National Association of Social Workers, California Chapter
Professor Michelle Oberman, Santa Clara University, School of
Law
Peace Officers Research Association
Opposition
Bastard Nation
Bay Area Birthmothers Association
California Open
California Right to Life Committee
California State Association of Counties
County Welfare Directors Association of California
Los Angeles District Attorney's Office
Los Angeles Community Child Abuse Councils Coordination Project
Los Angeles County Board of Supervisor
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Los Angeles County Fire Department
Los Angeles County Supervisor, Don Knabe
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334