BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 81 A
Assemblymember Torrico B
As Amended June 1, 2007
Hearing Date: June 26, 2007 8
Health & Safety Code 1
GMO:jd
SUBJECT
Child Protection: Safe Surrender of Newborns
- Extension of Safe Surrender Period to 30 days -
DESCRIPTION
This bill would extend the period during which a person may
safely surrender a baby at designated sites as long as the
proper procedures under the Safely Surrendered Baby law are
followed. Specifically, this bill would:
allow the safe surrender of a baby up to 30 days old,
rather than 72 hours;
permit a fire agency to designate a safe surrender site,
upon approval of the local governing body; and
immunize a safe surrender site and its personnel from
criminal, civil, or administrative liability for a
surrendered child prior to taking actual physical custody
of the child, or prior to the time the surrender site or
its personnel knows, or should know, that the child has
been surrendered.
BACKGROUND
SB 1368 (Brulte, Chapter 824, Statutes of 2000) enacted the
Safely Surrendered Baby law, which allows the surrender of
a newborn by a parent or other responsible person to a safe
surrender site, where the abandoned newborn may receive
medical and other care until the county takes over custody
of the newborn. That bill was introduced to provide
(more)
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mothers of unwanted newborns a safe alternative to
abandonment of the child in trash bins, alleys, or other
places where the babies would be unprotected and could die.
It was spurred by a group that retrieved dead abandoned
babies from county morgues and buried them in a specially
designated cemetery.
In order to reduce the number of abandoned babies left to
die and give them a chance to survive, SB 1368 provided a
safe place (such as an emergency room of a hospital) where
a person may surrender the baby and, if there is a change
of heart, may retrieve the baby within a specified time.
The bill also provided immunity from criminal prosecution
for violation of the child abandonment laws to the person
who safely surrendered the newborn. To get the bill
enacted, a sunset date of January 1, 2006 was amended into
the bill. In 2005, SB 116 (Dutton, Chapter 625, Statutes
of 2005) removed the sunset date on the law, making it
permanent.
SB 1368 also contained reporting provisions that required
the Department of Social Services (DSS) to report to the
Legislature biennially on various data related to the
effectiveness and continuing need for the Safely
Surrendered Baby law. According to the latest DSS Report
dated January, 2005, the number of infants surrendered
under the Safely Surrendered Baby law total 64 (up to
September 2004), of which 39 babies were several hours old,
16 were one day (24 hours) old, 6 were two days (48 hours)
old, and three were three days (72 hours) old.
This bill is almost identical to the author's AB 1873
(2006) that was vetoed by the Governor. (See Comment 1 for
text of veto message.)
CHANGES TO EXISTING LAW
1. Existing law makes it a crime for a parent or other
person entrusted with a child younger than 14 years of
age to abandon the child [Penal Code Sec. 271.] and to
fail to provide for the child or to present the child to
an orphanage or similar institution as an orphan [Penal
Code Sec. 271a.].
Existing law makes it a crime for a parent willfully to
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fail, without lawful excuse, to provide a child with
necessary food, shelter, medical assistance, or other
remedial care. [Penal Code Sec. 270.]
Existing law protects from prosecution under the state's
child abandonment laws a parent or other person having
lawful custody of a child 72 hours or younger, who
voluntarily surrenders physical custody of the child to
personnel on duty at a safe surrender site. [Penal Code
Sec. 271.5.]
Existing law provides a procedure for the surrender of
newborns 72 hours or younger by a parent or other
responsible person at a hospital or a site (safe
surrender site) designated by the county, without
incurring criminal liability under the state's child
abandonment laws. [Health & Safety Code Sec. 1255.7.]
This bill would allow the surrender of babies up to 30
days old by a parent or another responsible person.
2. Existing law authorizes a county to designate a site
for the surrender of a newborn up to 72 hours old under
the Safely Surrendered Baby law. [Health & Safety Code
Sec. 1255.7(a)(1)(A).]
This bill would authorize a local fire agency, upon
approval of the appropriate local governing body, to
designate a site for the safe surrender of a newborn
under the Safely Surrendered Baby law.
3. Existing law provides immunity from civil, criminal,
and administrative liability to a safe surrender site or
its personnel that accepts custody of a surrendered child
in good faith belief that action is required or
authorized under the Safely Surrendered Baby law,
including instances where the child is older than 72
hours or the person surrendering the child did not have
lawful physical custody of the surrendered child. [Health
& Safety Code Sec. 1255.7(h).]
This bill would further immunize from civil, criminal,
and administrative liability a safe surrender site or its
personnel for a surrendered child prior to taking actual
physical custody of the child and prior to the time that
the site or its personnel knows or should know that the
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child has been surrendered.
COMMENT
1. Need for the bill
According to the DSS Report (January 2005), between
October 2002 and September 2004, there were 105 abandoned
babies statewide who were found alive, and 23 abandoned
babies who were deceased. These numbers include the 52
babies who were safely surrendered during the same
period. When added to the 12 babies who were safely
surrendered in the previous reporting period (January 1,
2001 to October 21, 2002, cited in the January DSS 2003
report) there are a total of 64 babies who were
surrendered according to the protocol outlined in the
Safely Surrendered Baby (SSB) law from its inception to
this date.
According to the author, "the anonymity, confidentiality
and freedom from prosecution may encourage a parent to
leave his or her child at a safe surrender site. Factors
such as post-partum depression, other mental health
issues, language barriers, geographic and socio-economic
factors and lack of public awareness make the stringent
72-hour policy unreasonable."
The author cites a 2002 Center for Disease Control study
on infant death conducted between 1989 and 1998, that
states the second highest peak in risk for infant
homicide occurs during the eighth week of life and may be
due to a caregiver's reaction to an infant's persistent
crying, because infant crying duration peaks at six to
eight weeks of age. The same study states that infants
are at greatest risk for homicide during the first week
of infancy and the first day of life. The study further
states that among homicides during the first week of
life, 82.6% occurred on the day of birth.
The Governor vetoed the author's identical bill (AB 1873)
last year. His veto message reads:
California's Safe Surrender Law provides an
emergency alternative for a woman in crisis who,
statistics show, may otherwise abandon, abuse, or
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kill her baby. 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.
The author has not submitted any new data, study, or
statistics to contradict the studies and statistics
cited.
2. Justification for extending the SSB law to 30-day old
infants not clear
a. Empirical data and state experience does not support
expansion
When SB 1368 (Brulte) was enacted, it contained the
sunset clause of January 1, 2006 because at the time
there was no empirical data presented to the
Legislature that the proposal would indeed save any
baby's life. From January 2000 to September 2004, the
reports received from the Department of Social
Services shows a total of 64 babies safely
surrendered. This justified the elimination of the
sunset date of January 1, 2006, and making the law
permanent (SB 116 (Dutton), Chapter 625, Statutes of
2005).
The DSS Reports on those 64 safely surrendered babies
show that 39 were several hours old, 16 were one day
old, six were two days old, and three were three days
old. During the four-year period (2001 to 2004) there
were a total of 105 babies abandoned and found alive
(not including the 52 that were safely surrendered).
In fact, the number of abandoned/alive babies declined
during that period (30 in 2001, 33 in 2002, 25 in
2003, and 17 in 2004), when the education campaign on
the SSB law went into full swing. The state compiled
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no other statistics or studies that show the number of
babies being abandoned at ages older than 72 hours,
except that the rest of the abandoned/alive babies
(105) range in age up to one year. The abandoned
children include those who were found by law
enforcement or by other agencies or were taken by
child protective services after receiving reports of
abandonment. According to the author and some
proponents, there are now 187 babies who were
surrendered since the passage of the SSB law, although
no DSS studies are cited to support this data.
This bill would expand the SSB law by allowing babies
up to 30 days old to be surrendered by a parent or
other responsible person, without exposure to criminal
penalty under the child abandonment laws. Proponents
contend this is necessary in order to "protect
newborns who fall outside of the three-day limit but
are still at risk from being abandoned by frightened
young mothers." Yet none of the anecdotal evidence
provided by the author or the proponents identify an
abandoned or surrendered baby as being more than a few
days old.
The National Adoption Information Clearinghouse
identifies 16 states that provide for safe surrender
of babies up to 72 hours old, and 14 states that
provide for surrender of babies up to 30 days old.
Four states allow the surrender of babies up to 14
days old; New York uses 5 days and five states use 7
days as the cut-off age for the infant to be safely
surrendered. Six other states vary from 45 days to 90
days, and two states (Missouri and North Dakota) allow
babies up to one year to be surrendered. However,
Missouri does not allow anonymity of the person who
surrenders the child. Only 47 states have SSB laws.
Of those that allow babies up to 30 days to be
surrendered, five do not permit anonymity of the
person surrendering the child and seven do not permit
relinquishment by other than the birth parent.
Given the variance in statutes among the states and
the experience of California in particular, it appears
that the SSB law is working as intended, and that an
expansion of the period for surrender to 30 days is
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premature.
b. Expanding the statute to allow surrender of 30-day
old infants would negate the anonymity provisions in
the Safely Surrendered Baby law and spawn unintended
consequences
According to the California Welfare Directors
Association (CWDA), a group that supported the passage
of the original bill that enacted the SSB law, 30 days
is an unnecessary expansion of current law. CWDA
therefore opposes this bill.
"We oppose the 30-day period proposed by the bill
because it is not supported by research on baby
abandonment, would run counter to the policy of
anonymity for women who surrender their babies,
and would bypass more appropriate existing
methods for helping parents whose babies are
older than a few days?
The overarching policy of anonymity for women who
surrender their babies under the current law
would be compromised by the time a child is more
than a few days old. It is unrealistic to
believe that a woman could or would give birth to
a child, hide its existence for 30 days, and only
then decide to surrender the baby. Instead,
statistics bear this out, as 95 percent of babies
killed during the first week of life are not born
in hospitals, while only 8 percent of babies
killed later in life are born outside hospitals.
The Los Angeles County District Attorney's Office
insists that although AB 81 "is well-intentioned, this
bill is unnecessary and could result in child abusers
escaping arrest and prosecution. ?Under the current
surrender law, the person dropping off the infant is
not required to disclose his or her identity or
disclose any medical information. The person is also
given immunity from criminal prosecution for child
abandonment. While we believe that this extreme
remedy is justified during the brief window when most
homicides occur [the first 24 hours of life], an
expansion of the period to 30 days is ill-advised. We
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are concerned about the following unintended
consequences:
1. If it is later discovered that the child has been
physically or sexually abused, it will be difficult,
if not impossible to track the anonymous person who
delivered the child to the safe surrender location.
The longer the period of so-called "safe surrender,"
the greater the risk that this remedy will be
misused by some to escape responsibility for child
abuse. Unfortunately, these same individuals are
likely to abuse other children.
2. There will be an increasing number of children in
foster care or adoption who will lack a medical
history. This could be detrimental, even fatal, in
future years.
3. Fathers and other family members who may
otherwise have been willing to care for the child,
will have no way of knowing that the child has been
"safely surrendered." The child will then lose the
opportunity to be reared by his or her parent or
family member.
4. The "safely surrendered child" will become a ward
of the state with no known parent to pay child
support. Not all will be adopted.
"While the above consequences are, on balance,
justified during the 72-hour window when almost all
infant homicides occur, it is not necessary
thereafter."
It should be noted that the original intent of the SSB
law was "to provide young, inexperienced, and perhaps
unstable women who may feel they have no options when
they have an unwanted baby, with a safe place for the
baby as soon as it is born and thus give them a little
time to sort out their lives and decide whether they
want to take responsibility for the baby." (Senate
Judiciary Analysis of SB 1368 (Brulte), Ch. 824,
Stats. 2000). In fact, the real incentive for this
new mother, who is probably in a state of shock, is
that she is immune from criminal prosecution for
abandoning the child. The SSB law absolves her of the
responsibility for the child - if she delivers it to a
safe place within a very short period of time. The
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SSB law today even gives the birth mother up to 14
days to change her mind and retrieve her baby, after
the shock and trauma of having an unwanted baby has
settled somewhat. The SSB law was not intended to
allow her (or the other parent) to have the baby, keep
it for 30 days, and then surrender the baby at a safe
surrender site expecting no questions and a get out of
parenting card for free without being prosecuted for
abandonment. By the 30th day, the 4th day, or any day
in between, the birth mother has the opportunity to
surrender the baby to the proper authorities for
purposes of adoption.
c. There is an alternative to abandonment or surrender
after 72 hrs (3 days)
For children who are older than a few days, the
existing voluntary relinquishment process enables
parents to voluntarily free their children for
adoption. Voluntary relinquishment offers safeguards
to birth parents, the child and the adoptive parents.
Further, according to the County Welfare Directors
Association of California (CWDA), voluntary placement
rules allow a parent to place a child in foster care
for up to six months. These two paths, they say,
offer both short- and long-term options for parents
who are overwhelmed or are suffering from post-partum
depression. These options, which are easily accessed
at the local level, would also allow for the
collection of important medical history information,
provide full disclosure and due process for both the
mother and father of the baby, and allow for potential
future contact between the baby and the birth family,
according to the group.
d. Alternative to the 72-hour or 3-day age limit
proposed
The CWDA and some of the other opponents do not object
to revisiting California's 72-hour age limit for safe
surrender of a baby. In fact, one proponent suggested
an extension to 5 days, while CWDA asserts that an
extension of the law to allow surrender of babies up
to 7 days old, for example, "would balance the
immediate risk to an infant, the rights of both
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parents, and a baby's ability to bond with its
caregivers."
Another alternative that has been proposed to the
author is to extend the baby's age limit to 15 days,
but remove the anonymity protection for the person who
surrenders a baby older than 72 hours, if the
personnel at the safe surrender site examines the
child and believes the child has been abused. In this
case, the personnel would be mandated to report the
suspected child abuse, and the person who surrendered
the child would be required to disclose his or her
name, address, and relationship to the child prior to
leaving the site.
3. Fire stations to designate safe surrender sites
Proponents of the bill state that more safe surrender
sites would improve the SSB law. They state that many
communities have conducted successful training of fire
station employees on the SSB law, as well as campaigns to
educate the public about this process. The January 2005
DSS Report states that SSB announcements through the
network affiliate and cable television stations, public
service announcements have reached more than 4.5 million
California households. An earlier report stated it
printed 800,000 brochures on the SSB law and distributed
about 400,000 materials through a variety of public
agencies that serve children and families.
Under existing law, a hospital is a safe surrender site,
and the county may designate other safe surrender sites
as it deems necessary. The rationale for the county
choosing the safe surrender site is that the county will
ultimately be responsible for the safety of the child and
will take the child into its custody, temporarily until
the 14-day period for reclaiming the child has expired,
and on a more permanent basis after the initial hearing
under Welfare and Institutions Code Sec. 300 to declare
the child a ward of the state if the child is not
reclaimed.
Fire stations have been used in some counties as safe
surrender sites, with the cooperation of cities within
the counties. These fire stations have provided
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educational campaigns and have participated successfully
in training programs on what to do should a baby be
surrendered at their site. This bill contains a
provision that would authorize a fire agency to designate
a safe surrender site upon approval by the local
governing body (by the city if the fire agency is a city
fire department; county fire agencies may already be
designated by the county). Safe surrender personnel are
trained and equipment may have to be provided onsite to
take care of any medical emergencies that a surrendered
baby may have at the time of surrender.
The clamor for fire stations to become designated sites
seems to have originated from the $5 million
appropriation that this bill originally contained to pay
for a massive statewide educational campaign, as well as
training and equipment for designated sites. Certainly,
the expansion of the SSB law to accommodate 30-day old
babies for safe surrender could necessitate more training
and equipment for participating fire agencies. Thus,
this bill's provision authorizing a fire agency to
designate one or more of its stations as safe surrender
sites would provide a short-cut for the proper
designation of a fire station (i.e., choice of a fire
station through a county-city arrangement, rather than
the fire agency choosing on its own to be one). In fact,
one proponent stated that its support is "for the
expansion of safe surrender sites to include fire
stations with paramedics or emergency medical technicians
on duty at all times," and another supports the
"appropriation of $5 Million to a public awareness
campaign and a 1-800 number in multiple languages."
Many proponents of the bill were in support largely
because of the $5 million appropriation to be used for
campaigns to educate the community and to assist the
expansion of safe surrender sites. The $5 million
appropriation provision has been deleted from the bill.
Given the growing paucity of hospitals, particularly in
inner cities, designation of additional safe surrender
sites in inner cities may well be appropriate. However,
such designations should probably be done in conjunction
with the city or county governments who would be asked to
foot the bill for additional training and equipment.
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ARE NOT THE COUNTIES AND CITIES ALREADY ABLE TO ARRANGE
THE USE OF FIRE STATIONS AS SAFE SURRENDER SITES UNDER
EXISTING LAW?
4. Bill would provide immunity prior to taking physical
custody of a child
Current law immunizes from criminal, civil, or
administrative liability a safe surrender site or its
personnel "that accepts custody of a surrendered child?in
the good faith belief that action is required or
authorized by this section?" [Health & Safety Code Sec.
12557(h).] The immunity is qualified, as it does not
apply to liability for personal injury or wrongful death,
including injury resulting from medical malpractice. The
immunity also applies where there is a good faith belief
that action is required, even in instances where the
child is older than 72 hours or the parent or individual
surrendering the child did not have lawful physical
custody of the child.
This bill would provide immunity from criminal, civil, or
administrative liability to a safe surrender site or its
personnel "prior to its taking actual physical custody of
the surrendered child" and also "prior to the time the
site or its personnel know(s), or should know, that the
child as been surrendered."
This is an unnecessary addition to the law. Until the
safe surrender site or personnel accepts the child into
its custody, it has no obligation and therefore no
exposure to liability whatsoever. Accepting the child
into its custody has, from the inception of the SSB law,
meant "physical custody," as nobody but the person
surrendering the child could claim any lawful custody
rights to the child for purposes of the SSB law. In fact
all other subdivisions in the section refer to the
physical custody of the child. Once the safe surrender
site or its personnel accepts custody, then the duties
relating to caring for the child come into play, and so
does the qualified immunity rule.
Further expanding immunity to "prior to the time the site
or its personnel know(s) or should know that the child
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has been surrendered" suffers from the same deficiency:
it is unnecessary as no obligation to act would
materialize until the physical custody of the child was
actually transferred, and by that time someone would know
about it.
The author and proponents have provided no basis or
rationale for this apparently unnecessary immunity. A
review of case law provides no basis for fears that for
some reason liability could attach prior to knowledge
that a child has been surrendered.
SHOULD THIS PROVISION BE DELETED FROM THE BILL?
5. Supporters' arguments and opponents' concerns
None of those who have expressed support or opposition to
the bill deny that the Safely Surrendered Baby law
provides a measure of protection to newborns and an
acceptable emergency alternative to new mothers who are
lost and feel they cannot keep their babies. Those that
support the measure tout the number of babies that have
been saved and state that if one more baby is saved by
extending the period of surrender to 30 days, then the
legislation is worth it. Those that oppose the measure
contend that the original intent of the Safely
Surrendered Baby law was to provide a safe place for the
babies who are at greatest risk when abandoned to the
elements and that the immunity from criminal prosecution
given to someone who safely surrenders such a baby was a
huge concession to entice use of safer locations to
abandon a baby. Nobody questions the fact that at the
end of the surrender period, whatever that may be, a
person with custody of a child who abandons the child
should be subject to criminal prosecution; nobody
disagrees that there exist alternatives such as
relinquishment and voluntary placement. At the end, all
agree that more education is called for and will probably
make this law more of a successful experiment than it
already is.
One opponent, the California Right to Life Committees,
Inc. (CRLC), states that while the group supported the
original legislation authored by Senator Brulte and the
legislation that made the law permanent, authored by
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Senator Dutton, it opposes AB 81 because CRLC "advocates
respect for life of the newborn child and is concerned
that this extension of time [to 30 days] does not advance
respect for life of the newborn but could actually
jeopardize it. Therefore, CRLC must oppose [the bill]
unless the 72 hour period is maintained."
6. Double referral to Public Safety Committee
This bill, if passed by the committee, will be referred
to the Committee on Public Safety.
Support: California State PTA; League of California
Cities; California Medical Association; National
Association of Social Workers, California Chapter;
American Federation of State, County and Municipal
Employees Assn., AFL-CIO (AFSCME); California
Commission on the Status of Women; California State
Firefighters Association; City of San Jose;
California Fire Chiefs Association; Fire Districts
Association of California; Association of
California Health Districts; California Nurse
Midwives Association; California Association for
Nurse Practitioners; Peace Officers Research
Association of California; California Public
Defenders Association; City of Moreno Valley;
California Professional Firefighters; 1 individual
Opposition: County Welfare Directors Association of
California; Los Angeles County District
Attorney's Office; California State Association
of Counties; Board of Supervisors of Los Angeles
County; Sheriff of Los Angeles County; County of
San Diego; First 5 Los Angeles; Los Angeles
Community Child Abuse Councils Coordination
Project; California Right to Life Committee,
Inc.; Los Angeles County Fire Department; 2
individuals
HISTORY
Source: Author
Related Pending Legislation: None Known
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Prior Legislation: SB 1368 (Brulte, Ch. 824, Stats. 2000).
[See Background.]
SB 139 (Brulte, Ch.150, Stats. 2002)
extended immunity to persons assisting the
parent or person who is surrendering the
baby by transporting the parent or the
person with custody of the newborn.
SB 116 (Dutton, Ch. 625, Stats. of 2005).
[See Background.]
AB 1873 (Torrico, 2006) Vetoed. See
Background.
Prior Votes:Asm. Pub. S. (Ayes 7, Noes 0)
Asm. Jud. (Ayes 8, Noes 2)
Asm. Appr. (Ayes 12, Noes 5)
Asm. Flr. (Ayes 64, Noes 14)
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