BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
8
1
AB 81 (Torrico)
As Amended June 1, 2007
Hearing date: July 10, 2007
Health and Safety and Penal Codes
AA:mc
CHILD ABUSE AND NEGLECT :
THE SAFE SURRENDER LAW
HISTORY
Source: Author
Prior Legislation: AB 1873 (Torrico) - 2006, vetoed
SB 1368 (Brulte) - Chapter 824, Statutes of 2000
Support: Association of California Healthcare Districts; League
of California Cities; California Medical Association;
Oak Valley Hospital District; California Commission on
the Status of Women; Antelope Valley Healthcare
District; California Psychiatric Association; City of
San Jose; National Association of Social Workers,
California Chapter; Peace Officers Research Association
of California; Mendocino Coast Healthcare District;
California State PTA;
Sierra View District Hospital; California State
Sheriffs' Association
Opposition:
County of Los Angeles; County Welfare Directors Association of
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California
(unless amended); California Right to Life Committee, Inc.
Assembly Floor Vote: Ayes 64 - Noes 14
KEY ISSUES
SHOULD THE AGE AT WHICH AN INFANT CAN BE ANONYMOUSLY SURRENDERED BY
A BIRTH PARENT WITHOUT SPECIFIED CRIMINAL LIABILITY UNDER THE
"SAFE-SURRENDER" STATUTE BE REDUCED, FROM 72 HOURS OR YOUNGER, TO 30
DAYS OR YOUNGER?
SHOULD LOCAL FIRE AGENCIES BE EXPRESSLY AUTHORIZED AS
"SAFE-SURRENDER" SITES, AS SPECIFIED?
PURPOSE
The purpose of this bill is to 1) reduce the age at which an
infant can be anonymously surrendered by a birth parent without
criminal liability for child abandonment under the
"safe-surrender" statute from 72 hours or younger to 30 days or
younger; and 2) expressly authorize a local fire agency to be a
safe-surrender site, as specified.
Existing law provides that every parent of any child under the
age of 14 years, and every person to whom any such child has
been confided for nurture, or education, who deserts such child
in any place whatever with intent to abandon it, is punishable
by imprisonment in the state prison or in the county jail not
exceeding one year or by fine not exceeding one thousand dollars
($1,000) or by both. (Penal Code 271.)
Existing law further provides that every person who knowingly
and willfully abandons, or who, having ability so to do, fails
or refuses to maintain his or her minor child under the age of
14 years, or who falsely, knowing the same to be false,
represents to any manager, officer or agent of any orphan asylum
or charitable institution for the care of orphans, that any
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child for whose admission into such asylum or institution
application has been made is an orphan, is punishable by
imprisonment in the state prison, or in the county jail not
exceeding one year, or by fine not exceeding one thousand
dollars ($1,000), or by both. (Penal Code 721a.)
Existing law provides that if a parent of a minor child
willfully omits, without lawful excuse, to furnish necessary
clothing, food, shelter or medical attendance, or other remedial
care for his or her child, he or she is guilty of a misdemeanor,
as specified. (Penal Code 270.)
Existing law provides that every parent who refuses, without
lawful excuse, to accept his or her minor child into the
parent's home, or, failing to do so, to provide alternative
shelter, upon being requested to do so by a child protective
agency and after being informed of the duty imposed by this
statute to do so, is guilty of a misdemeanor, as specified.
(Penal Code 270.5.)
Existing law provides that no parent or other individual having
lawful custody of a minor child 72 hours old or younger may be
prosecuted for a violation of the above-cited provisions if he
or she voluntarily surrenders physical custody of the child to
personnel on duty at a safe-surrender site, as defined. (Penal
Code 271.5.)
This bill amends this section to expand its provisions to minor
children 30 days old or younger.
Current law requires any personnel on duty at a safe-surrender
site to accept physical custody of a minor child 72 hours old or
younger pursuant to this section if a parent or other individual
having lawful custody of the child voluntarily surrenders
physical custody of the child to
personnel who are on duty at the safe-surrender site, as
specified. (Health and Safety Code 1255.7(b).)
This bill would amend this provision to extend its application
to minor children 30 days old or younger.
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Current law provides that a "safe surrender" site, for purposes
of the voluntary surrender of an infant described above,
includes the following:
A location designated by the board of supervisors of a
county, as specified; and
A location within a public or private hospital that is
designated by that hospital to be responsible for accepting
physical custody of a minor child who is 72 hours old or
younger from a parent or individual who has lawful custody
of the child and who surrenders the child, as specified.
(Health and Safety Code 1255.7(a)(1).)
This bill would amend this provision to expressly include a
local fire agency, as specified, as a "safe surrender" site.
This bill would require that before designating a location as a
safe-surrender site, the designatory entity shall consult with
the governing body of a city, if the site is within the city
limits, and with representatives of any local fire agency and
any child welfare agency that may provide services to a child
who is surrendered at the site, if that location is selected.
This bill would make additional conforming amendments to this
section to reflect the changes to infant age and "safe surrender
site" proposed by the bill.
Current law provides that a safe-surrender site, or personnel of
the safe-surrender site, that accepts custody of a surrendered
child . . . shall not be subject to civil, criminal, or
administrative
liability for accepting the child and caring for the child in
the good faith belief that action is required or authorized by
this section, including, but not limited to, 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
subdivision does not confer immunity from liability for personal
injury or wrongful death, including, but not limited to, injury
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resulting from medical malpractice. (Health and Safety Code
1255.7(h).)
This bill amends this provision to provide that, "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 the time that the
site or its personnel know, or should know, that the child has
been surrendered."
This bill passed the Senate Judiciary Committee (5-0) on June
26, 2007, and has been double-referred to this Committee.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
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mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
--------------------
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not aggravate the prison and jail overcrowding
crisis outlined above.
---------------------------
<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
<5> Primer, supra, fn. 4.
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COMMENTS
1. Stated Need for This Bill
The author states:
Current law allows for a parent or legal guardian to
safely surrender their child up to 72 hours after
the time of birth. The parent has a 14 day "cooling
off" period whereby they can reclaim their child
without any criminal or civil liability. Current
safely surrender sites include any private or public
hospital and any other designation voted by the
board of supervisors.
A lifeless baby was found abandoned in Newark in
mid-January outside of a Jack-in-the-Box trash can.
Reports from newspapers indicate that the child was
between 7 to 14 days old. At the end of January,
another baby was found on the doorsteps of a church
in San Jose. The baby was reported to be a couple
of hours old and was found during Mass.
Currently, 46 other states have similar "safe haven"
laws. Thirty five of those states have safe haven
provisions that are longer than the current 72 hour
provision in California.
Twenty-two other states have at least 30 day
provisions. My office was able to talk to
Representative Glover from Louisiana who stated that
the 30 days was negotiated to help save more babies
and to address issues associated with post partum
depression.
2. What This Bill Would Do
As explained above, this bill would reduce the age at which an
infant can be anonymously surrendered by a birth parent without
criminal liability for child abandonment under the
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"safe-surrender" statute from 72 hours or younger to 30 days or
younger. The bill also would expressly authorize a local fire
agency to be a safe-surrender site, as specified, and make
additional conforming statutory changes.
3. Does the Data Support the Intention Behind This Bill?
The following information was provided in the analysis of this
bill prepared by the Senate Judiciary Committee:
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
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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
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.
4. Policy Basis for Expanding the Scope of the Safe-Surrender
Statute Appears Uncertain
The following information was provided in the analysis of this
bill prepared by the Senate Judiciary Committee:
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
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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 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
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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 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
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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 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.
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"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 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
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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.
5. Fire Stations to Designate Safe Surrender Sites
The following information is from the analysis of this bill
prepared by the Senate Judiciary Committee:
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 educational
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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
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city or county governments who would be asked to foot the bill
for additional training and equipment.
ARE NOT THE COUNTIES AND CITIES ALREADY ABLE TO ARRANGE THE
USE OF FIRE STATIONS AS SAFE SURRENDER SITES UNDER EXISTING
LAW?
6. Bill Would Provide Immunity Prior to Taking Physical
Custody of a Child
The following information is from the analysis of this bill
prepared by the Senate Judiciary Committee:
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
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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 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?
7. Supporters' Arguments and Opponents' Concerns
The following information is from the analysis of this bill
prepared by the Senate Judiciary Committee:
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
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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 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."
8. Additional Considerations: The Sound and Necessary Exercise of
Government Authority to Promote Both Public Safety and the
Personal Rights of Individuals; Consequences of Anonymous
Surrenders
Members of the Committee may wish to consider this bill in the
context of the exercise of government authority, especially with
respect to the following consequences: 1) to what extent would
expanding the scope of a statute which allows birth parents to
anonymously surrender an infant inadvertently expose the infant
to greater risk of harm, and make it more difficult to prosecute
abuse; and 2) what should be the limits of government-created
procedures which result in an individual never having the
ability to discover any information about his or her birth
family if he or she so desires.
The safe-surrender statute provides birth parents immunity from
criminal prosecution under existing child abandonment statutes.
The law does not provide immunity for other crimes, such as
child abuse or worse. Nevertheless, as noted above some
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prosecutors have expressed concern that expanding the scope of
the anonymity provisions in the safe-surrender statute would
impose a significant barrier for identifying and apprehending
persons who use the safe-surrender statute to avoid criminal
prosecution.
The current safe-surrender statute provides similar potential
for abuse, although the potential window for abuse is smaller
because of the time limits in the statute. For example, under
the current statute an anonymous birth parent of an infant
exposed to a controlled substance such as methamphetamine can be
long gone from a surrender site before the infant is fully
examined.<6> The potential for this kind of unintended
consequence of the safe-surrender statute would be expanded
under this bill.
WOULD THIS BILL UNINTENTIONALLY HINDER PROSECUTIONS FOR CRIMES
AGAINST NEWBORNS OTHER THAN CHILD ABANDONMENT?
COULD THE POTENTIAL UNINTENDED CONSEQUENCES OF THIS BILL BE
CURED BY REMOVING ANONYMITY FROM THE SAFE SURRENDER STATUTE?
A second issue Committee members may wish to explore is how this
bill would further impact individuals who were
safely-surrendered as infants with respect to access to personal
and biological histories. With anonymous surrender, birth
parents are not required to provide any personal information
when they leave an infant at a safe-surrender site. While
current law requires that they be provided a form asking them to
---------------------------
<6> The case described in the following news excerpt did not
involve a safely-surrendered infant, but illustrates the kind of
case prosecutors express concerns about with respect to
anonymous surrenders. "A California woman whose infant son
died with methamphetamine in his system will face a third murder
trial, a Riverside County Judge ruled Monday. Amy Leanne Prien
was convicted of second-degree murder in her son's death in
2003, but that conviction was overturned by an appeals court
citing flawed jury instructions." (See
(http://stopthedrugwar.org/chronicle/449/california_methamphetami
ne_pregnancy_court_retrial.)
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fill out (anonymously) a questionnaire about family medical
history, Committee staff is informed that these questionnaires
are rarely completed. Members may wish to weigh the potential
for saving lives under an expanded anonymous safe-surrender
statute against the disadvantage imposed on safely-surrendered
individuals who will never have the ability to know anything
about their biological origin if they so desire.
When the original safe-surrender bill was heard in this
Committee in 2000, the Committee received opposition from an
organization of adult adoptees called "Bastard Nation." That
group asserted "(t)hese laws represent a radical change in child
welfare policy toward promoting rather than discouraging
abandonment, . . . The anonymity built into these laws opens up
the door to the potential for abuse, fraud, and the worst
excesses of Victorian-era social welfare practice when
abandonment was the norm and preventative social services were
nonexistent."<7> In a more recent presentation about
"safe-haven" laws generally, the Executive Chair of Bastard
Nation summarized the following objections to these laws:
Our specific objections to Safe Haven/Baby Moses
laws are that the laws in all or some states:
Deny the right of identity to the legally
and anonymously abandoned infant; thus,
stripping the infant of all genetic, medical,
and social history.
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--------------------
<7> Senate Committee on Public Safety, analysis of SB 1368
(Brulte), May 2, 2000.
Do not require that those "legally"
abandoning their babies prove that they are the
newborn's parents. Furthermore, parents may
permit a designated dumper or "agent" to act on
their behalf, although no proof of parental
authorization is required.
Ignore birthmother consent revocation
timeframes and make it more difficult for a
parent to retrieve a safe havened baby than to
retrieve a dangerously abandoned baby.
Routinely deny the non-custodial parent
(usually the father) due process.
Contravene sections of the Federal Indian
Child Welfare Act (ICWA) that gives tribes first
custody rights in cases of child relinquishment.
Discourage relinquishment and adoption
through traditional, legal channels, instead
creating a government-sanctioned quick-fix,
impulse consumer approach to child
relinquishment.
Discourage pregnant women from seeking
pre- and postnatal care and counseling; thus,
endangering the health and well-being of the
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infant as well as the mother.<8>
AS A MATTER OF POLICY, SHOULD CALIFORNIA MAKE IT EASIER FOR
BIRTH PARENTS TO GIVE UP THEIR INFANT CHILDREN ANONYMOUSLY? AS
A PRACTICAL MATTER, IS THIS NECESSARY TO SAVE LIVES?
GIVEN THE VOLUNTARY RELINQUISHMENT PROCESS AVAILABLE UNDER
CURRENT LAW, IS THIS BILL NECESSARY?
Does the potential FOR saving lives under an expanded anonymous
safe-surrender statute outweigh the disadvantage imposed on
safely-surrendered individuals OF never havING the ability to
know anything about their biological origin IF THEY SO CHOOSE?
***************
---------------------------
<8> Response to Unintended Consequences: "Safe-Haven" Laws are
Causing Problems not Solving Them, M. Greiner, Executive Chair,
Bastard Nation, Presented at: Evan B. Donaldson Institute for
Adoption, New York City, March 14, 2003.