Existing law requires a county probation or welfare department to immediately, or as soon as practicably possible, report to the law enforcement agency having jurisdiction over the case, to the agency given responsibility for investigation of child welfare cases, and to the district attorneys office every known or suspected instance of child abuse or neglect, as specified. Existing law states the intent of the Legislature that the law enforcement agencies and the county welfare or probation department of each county develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. Existing law requires a local law enforcement agency having jurisdiction over a reported case of child abuse to report to the county welfare or probation department that it is investigating the case, and requires the county welfare department or probation department, in certain cases, to evaluate what action or actions would be in the best interest of the child and to submit its findings to the district attorney, as specified.

This bill would, no later than January 1, 2029, require each county to establish a private and secure online database for cross-reporting substantiated allegations reports of child abuse and neglect. The bill would require each county to develop a process for a person to petition to have his or her name removed from the database if the report regarding the individual is unsubstantiated. The bill would require each database to be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorneys office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect. The bill would require unsubstantiated reports to be purged from the database. The bill would state findings and declarations of the Legislature regarding reporting child abuse and neglect. By imposing new duties on counties, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a county probation or welfare department to immediately, or as soon as practicably possible, report to the law enforcement agency having jurisdiction over the case, to the agency given responsibility for investigation of child welfare cases, and to the district attorneys office every known or suspected instance of child abuse or neglect, as specified. Existing law states the intent of the Legislature that the law enforcement agencies and the county welfare or probation department of each county develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. Existing law requires a local law enforcement agency having jurisdiction over a reported case of child abuse to report to the county welfare or probation department that it is investigating the case, and requires the county welfare department or probation department, in certain cases, to evaluate what action or actions would be in the best interest of the child and to submit its findings to the district attorney, as specified.

This bill would, no later than January 1, 2029, require each county to establish a private and secure online database for cross-reporting substantiated allegations of child abuse and neglect. The bill would require each database to be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorneys office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect. By imposing new duties on counties, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a county probation or welfare department to immediately, or as soon as practicably possible, report to the law enforcement agency having jurisdiction over the case, to the agency given responsibility for investigation of child welfare cases, and to the district attorneys office every known or suspected instance of child abuse or neglect, as specified. Existing law states the intent of the Legislature that the law enforcement agencies and the county welfare or probation department of each county develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. Existing law requires a local law enforcement agency having jurisdiction over a reported case of child abuse to report to the county welfare or probation department that it is investigating the case, and requires the county welfare department or probation department, in certain cases, to evaluate what action or actions would be in the best interest of the child and to submit its findings to the district attorney, as specified.

This bill would, no later than January 1, 2029, require each county to establish a private and secure online database for cross-reporting allegations of child abuse and neglect. The bill would require each database to be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorneys office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect. The bill would require the database to facilitate the submission of reports to the Department of Justice for inclusion in the Child Abuse Central Index. By imposing new duties on counties, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a county probation or welfare department to immediately, or as soon as practicably possible, report to the law enforcement agency having jurisdiction over the case, to the agency given responsibility for investigation of child welfare cases, and to the district attorneys office every known or suspected instance of child abuse or neglect, as specified. Existing law states the intent of the Legislature that the law enforcement agencies and the county welfare or probation department of each county develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. Existing law requires a local law enforcement agency having jurisdiction over a reported case of child abuse to report to the county welfare or probation department that it is investigating the case, and requires the county welfare department or probation department, in certain cases, to evaluate what action or actions would be in the best interest of the child and to submit its findings to the district attorney, as specified.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires a county probation or welfare department to immediately, or as soon as practicably possible, report to the law enforcement agency having jurisdiction over the case, to the agency given responsibility for investigation of child welfare cases, and to the district attorneys office every known or suspected instance of child abuse or neglect, as specified. Existing law states the intent of the Legislature that the law enforcement agencies and the county welfare or probation department of each county develop and implement cooperative arrangements in order to coordinate existing duties in connection with the investigation of suspected child abuse or neglect cases. Existing law requires a local law enforcement agency having jurisdiction over a reported case of child abuse to report to the county welfare or probation department that it is investigating the case, and requires the county welfare department or probation department, in certain cases, to evaluate what action or actions would be in the best interest of the child and to submit its findings to the district attorney, as specified.

This bill would require the district attorneys office of the County of Los Angeles to develop and implement a pilot program on or before January 1, 2020, with policies to oversee the sharing of information, including cross-reporting between the Department of Family and Children Services of the County of Los Angeles and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect. The bill would require substantiated reports of child abuse or neglect to be recorded in an electronic database maintained by the County of Los Angeles and would require the county to transmit copies of those reports to the Child Abuse Central Index maintained by the Department of Justice. The bill would also require the district attorneys office of the County of Los Angeles to submit, beginning in January of 2021, and annually thereafter, a report to the Legislature, the Governor, and the Board of Supervisors of the County of Los Angeles outlining the number of child abuse or neglect allegations brought to the county and evaluating whether the Department of Family and Children Services of the County of Los Angeles and law enforcement agencies within the county are in compliance with their mandated reporting requirements and applicable county policies. By imposing new duties on local officials, the bill would impose a state-mandated local program.

This bill would make legislative findings and declarations as to the necessity of a special statute for the County of Los Angeles.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Date of Hearing: April 24, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY: Requires every county to establish an on-line database to for specified agencies to track the reporting of substantiated allegations of child abuse and neglect by 2029. Specifically, this bill:

1. Makes legislative findings and declarations about the duties of law enforcement, district attorney offices, and county welfare departments to immediately, or as soon as practicably possible, cross-report cases involving allegations of child abuse and neglect, about the deficiencies of mandated reports which use the written Suspected Child Abuse Report (SCAR) form, and why electronic reports (E-SCARS) are better.
   
2. Requires every county to establish, on or before January 1, 2029, a secure on-line database for cross-reporting substantiated reports of child abuse and neglect among agencies and individuals authorized to receive that information.
   
3. States that the database must reflect a real time, Web-based information sharing system that allows rapid and secure electronic transmission and receipt of mandated cross-reports, ensuring that the proper agencies receive the report and providing a detailed history of past incidents of abuse entered into the system by child and family welfare agencies.
   
4. Requires each county to develop policies and procedures for entering, reviewing, and purging information in the database, criteria for substantiating reports, and retention periods for information.
   
5. Requires each county to develop a process for an individual to petition to have his or her name removed from the database if the report against the individual is found to be unsubstantiated.
   
6. States that a county with an existing online reporting system that meets these requirements is deemed to be compliant with this section.
   
7. Requires that each online database be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorney’s office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect.
   
8. Provides that each database must be used and operated in compliance with all state and federal regulations, statutes, and guidelines.
   
9. States that the database can only be used by law enforcement officials, child and family welfare service agencies, and district attorneys’ offices for the purposes of reporting and investigating reports of child abuse and neglect.
   
10. Requires all reports that are not substantiated to be purged from the database.
    
11. Defines “cross-reporting” as “the transmission of information to the agencies given responsibility for the investigation of cases under Section 300 of the Welfare and Institutions Code and subject to the mandated reporter requirements of Section 11166.”
    
12. States that this section does not relieve entities from the duty to submit substantiated reports of abuse and neglect to the Child Abuse Central Index (CACI) maintained by the Department of Justice (DOJ).
    
13. Names these provisions “Gabriel’s Law.”
    

EXISTING LAW:

1. Requires that any specified mandated reporter who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment whom the reporter knows, or reasonably suspects, has been the victim of child abuse, shall report it immediately to a specified child protection agency. (Pen. Code, § 11166, subd. (a).)
   
2. Requires specified local agencies to send the California Department of Justice (DOJ) reports of every case of child abuse or severe neglect that they investigate and determine to be substantiated. (Penal Code, § 11169, subd. (a).)
   
3. Directs the DOJ to maintain an index, referred to as the CACI, of all substantiated reports of child abuse and neglect submitted as specified. (Pen. Code § 11170, subds. (a)(1) and (a)(3).)
   
4. Allows DOJ to disclose information contained in the CACI to multiple identified parties for purposes of child abuse investigation, licensing, and employment applications for positions that have interaction with children. (Pen. Code, § 11170, subd. (b).)
   
5. Requires reporting agencies to provide written notification to a person reported to the CACI. (Pen. Code, § 11169, (c).)
   
6. Provide that, except in those cases where a court has determined that suspected child abuse or neglect has occurred or a case is currently pending before the court, any person listed in the CACI has the right to hearing which comports with due process before the agency that requested the person's CACI inclusion. (Pen. Code, §11169, subds. (d) and (e).)
   
7. Requires a reporting agency to notify the DOJ when a due process hearing results in a finding that a CACI listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
8. Requires the DOJ to remove a person's name from the CACI when it is notified that the due process hearing resulted in a finding that the listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
9. Provides that any person listed in CACI who has reached age 100 is to be removed from CACI. (Pen. Code, §11169, subd. (f).)
   
10. Provides that any non-reoffending minor who is listed in CACI shall be removed after 10 years. (Pen. Code, § 11169, subd. (g).)
    
11. Allows any county to establish a computerized data base system within that county to allow provider agencies, as defined, to share specified identifying information regarding families at risk for child abuse and neglect, for the purposes of forming multidisciplinary personnel teams. (Welf. & Inst. Code, § 18965.1, subd. (a).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Several agencies investigated allegations of abuse before Gabriel Fernandez’s death without removing him from the home. Despite the many attempts to alert the appropriate authorities, Gabriel was left to suffer at the hands of his guardians because of what is largely being deemed as ‘oversight.’ Cases, such as Gabriel’s, are, unfortunately, more prevalent in today’s society than they ought to be, and it is time we take the necessary steps to address these inefficiencies in a meaningful way. This bill will open lines of communication among the appropriate agencies within each county and ensure our kids do not fall through the cracks.”
   
2. Impetus for this Bill: According to the background provided by the author, this bill is the result of the tragic murder of eight-year-old Gabriel Fernandez by his mother and her boyfriend. On May 22, 2013, the Los Angeles Fire Department responded to a call in East Palmdale, reporting that Gabriel was not breathing. He was taken to the hospital with multiple injuries including a fractured skull, BB pellets in his lungs and groin, two missing teeth, broken ribs, and cigarette burns. Gabriel died from his injuries the following day.
   
   Before his death, Gabriel’s teacher had made several calls to the county after he came to school with bruising. A security guard had also made a call to 911 when he saw Gabriel with injuries, including what appeared to be cigarette burns. The 911 operator told him it was not an emergency. Several agencies had investigated allegations of abuse before Gabriel’s death without removing him from the home. Law enforcement had also responded to the home and school several times but concluded there was no evidence of abuse.
   
   Both Gabriel’s mother and her boyfriend were charged with murder. A jury convicted the boyfriend of murder and also found true a special circumstance allegation of murder involving the infliction of torture. In the penalty phase of the trial the jury subsequently voted for the death penalty. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.) Prosecutors also intend to seek the death penalty in the mother’s case. (<https://www.dailynews.com/2017/12/01/uncle-of-gabriel-fernandez-8-says-family-is-haunted-by-boys-torture-death/>.)
   
   Gabriel's death also led as well to criminal charges against several social workers, who left the boy in the home, based on a theory that their actions amounted to criminal negligence. In addition, the sheriff's deputies visited the home multiple times were later disciplined in connection with the death. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.)
   
   In response to Gabriel’s horrific death, this bill would require every county in the state to establish an on-line database for cross-reporting substantiated allegations of child abuse and neglect between the county welfare department, the district attorney’s office, and local law enforcement. The county databases are to be used as investigatory tools. However, it is not apparent how such a database would help in a case such as Gabriel’s since both law enforcement and social workers determined that allegations of abuse were unfounded. Moreover it should be noted that Los Angeles County already had established an on-line system for reporting allegations of abuse to be used as an investigatory tool by law enforcement, the district attorney’s office, referred to as E-SCARS, at the time of Gabriel’s death.
   
3. Problems with Local Databases: Investigatory databases established for other purposes have been criticized for inaccuracy and lack of oversight.
   
   For example, in August 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state. The audit revealed many concerns, including: the oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights; the governing entities act without statutory authority, transparency, or public input; there is little evidence that the governing entities have ensured user agencies to comply with federal regulations regarding databases; the investigators could not substantiate the validity of numerous CalGang entries; the gang databases were “tracking people who do not appear to justifiably belong in the system;” user agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings which is prohibited; user agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights; the programming underlying CalGang did not purge all records within the required time frame. (https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf)
   

Additionally, as will be discussed below, the statewide database for reporting child abuse was previously fraught with problems and the subject of extensive litigation.

Creating 58 databases of allegations of child abuse without oversight, minimum standards, or procedural safeguards raises the same policy concerns.

1. Child Abuse Central Index (CACI): The CACI was created in 1965 as a centralized system for collecting reports of suspected child abuse. This is not an index of persons who necessarily have been convicted of any crime; it is an index of persons against whom reports of child abuse or neglect have been made, investigated, and determined by the reporting agency (local welfare departments and law enforcement) to meet the requirements for inclusion, according to standards that have changed over the years.
   

Access to CACI initially was limited to official investigations of open child abuse cases, but in 1986 the Legislature expanded access to allow the Department of Social Services (DSS) to use the information for conducting background checks on applications for licenses, adoptions, and employment in child care and related services positions.

DOJ provides the following summary of CACI on its website:

"The Attorney General administers the Child Abuse Central Index (CACI), which was created by the Legislature in 1965 as a tool for state and local agencies to help protect the health and safety of California's children.

"Each year, child abuse investigations are reported to the CACI. These reports pertain to investigations of alleged physical abuse, sexual abuse, mental/emotional abuse, and/or severe neglect of a child. The reports are submitted by county welfare and probation departments.

"The information in the Index is available to aid law enforcement investigations, prosecutions, and to provide notification of new child abuse investigation reports involving the same suspects and/or victims. Information also is provided to designated social welfare agencies to help screen applicants for licensing or employment in child care facilities and foster homes, and to aid in background checks for other possible child placements, and adoptions. Dissemination of CACI information is restricted and controlled by the Penal Code.

"Information on file in the Child Abuse Central Index include:

• "Names and personal descriptors of the suspects and victims listed on reports;
• "Reporting agency that investigated the incident;
• "The name and/or number assigned to the case by the investigating agency;
• "Type(s) of abuse investigated; and
• "The findings of the investigation for the incident are substantiated.
  

"It is important to note that the effectiveness of the index is only as good as the quality of the information reported. Each reporting agency is required by law to forward to the DOJ a report of every child abuse incident it investigates, unless the incident is determined to be unfounded or general neglect. Each reporting agency is responsible for the accuracy, completeness and retention of the original reports. The CACI serves as a 'pointer' back to the original submitting agency." (See <http://oag.ca.gov/childabuse>.)

DOJ is not authorized to remove suspect records from CACI unless requested by the original reporting agency. (https://oag.ca.gov/childabuse/selfinquiry.)

1. Prior CACI Legislation and Litigation: In 1963, the Legislature began requiring physicians to report suspected child abuse. [See Smith v. M.D. (2003) 105 Cal.App.4th 1169 (discussing evolution of child abuse detection laws).] Two years later, the Legislature expanded the reporting scheme to require that instances of suspected abuse and neglect be referred to a central registry maintained by DOJ. In the early 1980s, the Legislature revised the then-existing laws and enacted the Child Abuse and Neglect Reporting Act (CANRA), which created the current version of the CACI. These revisions did not require that listed individuals be notified of the listing, nor were individuals even able to determine whether they were listed in the CACI.
   
   In Burt v. County of Orange (2004) 120 Cal.App.4th 273, the Court of Appeal held that a CACI listing implicates an individual's state constitutional right to familial and informational privacy, thus entitling the person to due process. (Id. at pp. 284-285.) Although the CACI does not explicitly grant a hearing for a listed individual to challenge placement on the CACI, the statutory scheme contained an implicit right to a hearing. (Id. at p. 285.) The court declined to provide guidance on what procedures that hearing should include. The court merely stated that the county social services agency was required to afford a listed individual a "reasonable" opportunity to be heard. (Id. at p. 286.)
   

In Humphries v. Los Angeles County (9th Cir. 2009) 554 F.3d 1170, 1200, the Ninth Circuit held that an erroneous listing of parents who were accused of child abuse on the CACI without notice and an opportunity to be heard would violate the parents' due process rights. Specifically,"[t]he lack of any meaningful, guaranteed procedural safeguards before the initial placement on CACI combined with the lack of any effective process for removal from CACI violates the [parents'] due process rights." (Id.) The court ruled that, "California must promptly notify a suspected child abuser that his name is on the CACI and provide 'some kind of hearing' by which he can challenge his inclusion." (Id. at 1201.)

In 2011, the Legislature amended the Child Abuse and Neglect Reporting Act to provide notice of inclusion and for a hearing to seek removal from the CACI. (See AB 717 (Ammiano), Chapter 468, Statutes of 2011.) The same legislation also limited the reports of abuse and neglect for inclusion in CACI to substantiated reports. Inconclusive and unfounded reports were removed.

While this bill, as amended, would limit reporting to “substantiated” reports of child abuse and neglect, there is no definition for that term. And while each county is required to develop a process for a person to petition to be removed from the database if the report is determined to be “unsubstantiated” (which is also not defined), there is no requirement that that an individual be given notice of inclusion, so how would a person know to petition for removal? What about removal of substantiated reports that do not result in conviction?
These are just some examples of potential due process concerns. Without uniform definitions, standards, and oversight, due process will vary by county. Arguably, creating county databases without standards and procedural safeguards will subject counties to similar litigation as the CACI litigation.

1. Los Angeles County E-SCARS: E-SCARS is an online reporting system that provides child welfare agencies with one central database containing histories of all abuse or neglect allegations, investigative findings and other information pertaining to a child or suspected perpetrator.
   
   The system links Los Angeles County Department of Children and Family Services’s Child Protection Hotline with the District Attorney’s Office, the Los Angeles County Sheriff’s Department, the Los Angeles Police Department and 45 other municipal police departments, and all city prosecutors’ offices.
   
   E-SCARS was implemented in 2009 (several years before Gabriel’s death). In April 2014, the Blue Ribbon Commission on Child Protection submitted a final report to the Los Angeles County Board of Supervisors, part of which detailed its findings and recommendations on E-SCARS. The commission found that “insufficient resources have been allocated for updating and maintaining ESCARS, as well as for needed oversight by the DA’s Office.” Other deficiencies included: Failure by some law enforcement agencies to cross-report (SCARs) to DCFS and the district attorney’s office and document their actions; differing standards among law enforcement agencies for investigating reports of alleged abuse; inadequate methods of retrieving cross-reported SCARs by law enforcement so that some are not seen for days; and lack of sufficient mandatory and continuing training for all levels of law enforcement personnel on handling child safety cases and E-SCARS. (See The Road to Safety for Our Children: Final Report of the Los Angeles County Blue Ribbon Commission on Child Protection, April 18, 2-14, pp. 15-16, <http://ceo.lacounty.gov/pdf/brc/BRCCP_Final_Report_April_18_2014.pdf>.)
   
   This bill would require each county to implement an on-line reporting database like E-SCARS by 2029.
   
2. Practical Concerns: This bill, as currently drafted, is vague on details and therefore raises a number of practical concerns.
   
   For example, this bill limits inclusion in the database to “substantiated” reports of child abuse. However, as noted above, that term is not defined. Although the term is defined in law for purposes of the statewide CACI, that definition is not cross-referenced. This raises the possibility that each county is permitted to decide constitutes a “substantiated” report. In fact, other language suggests this may very well be the case as each county is required to “develop criteria for substantiating reports.”
   
   This bill would require the database to have “a detailed history of past incidents of abuse entered into the system by child and family welfare agencies.” It is unclear what this means. Is this triggered by the inclusion of a new substantiated report? Or are child and family welfare agencies required to enter other historical information. And if so, pertaining to whom and going how far back?
   
   This bill would require “each county to develop policies and procedures for entering, reviewing, and purging information in the database, criteria for substantiating reports, and retention periods for information.” The bill does not specify which entity in the county is tasked with these responsibilities. Is it the board of supervisors, the district attorney, child welfare agencies, a working group? Moreover, as noted above because there are no minimum standards, the policies and procedures will vary from county to county.
   
   This bill would also require each county to develop a process for persons included in the database to petition for removal if the report is determined to be “unsubstantiated.” Again, that term is not defined. Additionally removal of unsubstantiated reports appears to conflict with the limitation of only including substantiated reports. Moreover, this bill also seems to suggest that all reports that are not substantiated should automatically be purged, since it states, “All reports that are not substantiated shall be purged from the database.” How will this happen and when?
   
   And what of reports that were initially substantiated but that do not subsequently result in charges being filed or that do not result in conviction? Do these reports get purged? If so, is the purging automatic or does the individual have to petition for removal?
   
   Other basic implementation questions include: which agency administers the database; who in each agency has access; can counties share information with other counties, and why is there a delayed implementation of more than a decade?
   
3. Argument in Support: According to the Children’s Advocacy Institute, University of San Diego School of Law, “Existing law requires County welfare departments to, as soon as practicably possible, report to law enforcement, to the agency responsible for investigating child welfare cases, and to the district attorney’s office every known or suspected case of child abuse or neglect. This legislation offers the tools necessary to appropriately enforce standards of cross-reporting amongst agencies.
   
   “The case of eight-year-old Gabriel Fernandez is one that captured the nations’ attention and highlighted some of the inadequacies in our system. Cases, such as Gabriel’s, are, unfortunately, more prevalent in today’s society than they ought to be, and it is time we take the necessary steps to address these inefficiencies in a meaningful way.”
   
4. Argument in Opposition: According to the American Civil Liberties Union of California, “The creation of any government database containing sensitive personal information raises concerns regarding who will have access to the information, the uses to which the information will be put, and how the database will be kept secure from unauthorized access and use. Information regarding allegations of child abuse is of the highest sensitivity, especially when, as here, the information includes unproven allegations. Yet AB 1911 fails to specify which agencies will have access to the information contained in the proposed fifty-eight county databases or how they are authorized to use the information, stating only that there will be information sharing ‘including but not limited to’ cross-reporting among the county welfare department, the district attorney’s office and local law enforcement agencies. Nor does the bill require that implementation include safeguards against unauthorized access. Finally, to the extent the databases may be used for purposes beyond cross-reporting of information regarding ongoing investigations, there are no provisions regarding the rights of the individuals who will be listed on the databases to know what information is included regarding them or to challenge their inclusion.
   
   “A similar lack of safeguards and due process protections led to terrible due process violations and abuses regarding California’s statewide database of child abuse reports, the Child Abuse Central Index. Although some protections have been put in place as the result of litigation and legislative action, even with those changes there are still problems with the CACI system today. Under AB 1911, the same kinds of problems may be replicated in all fifty-eight counties with little or no legislative guidance or state oversight to prevent this from happening.”
   
5. Related Legislation: AB 2005 (Santiago) would require a police or sheriff’s department receiving a report of known or suspected child abuse or severe neglect to forward any such reports that are investigated and determined to be substantiated to the DOJ. AB 2005 is pending hearing in the Assembly Appropriations Committee.
   
6. Prior Legislation:
   
   1. AB 1707 (Ammiano), Chapter 848, Statutes of 2012, removed non-reoffending minors from the CACI after 10 years, and amended the CACI notice provisions.
      
   2. AB 717 (Ammiano), Chapter 468, Statutes of 2011, amended the CACI provisions by including only substantiated reports and removing inconclusive and unfounded reports from CACI.
      
   3. SB 1312 (Peace), Chapter 91, Statutes of 2002, would have made numerous changes to CACI including the purging of old reports. The provisions dealing with CACI were deleted before SB 1312 was chaptered.
      
   4. AB 2442 (Keeley), Chapter 1064, Statutes of 2002, established the Child Abuse and Neglect Reporting Act Task Force for the purpose of reviewing the act and CACI.
      
   5. AB 1447 (Granlund), of the 1999-2000 Legislative Session, would have made numerous changes to CACI including the purging of old reports. AB 1477 was never heard by the Senate Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Antelope Valley Boys and Girls Club
Children’s Advocacy Institute, University of San Diego School of Law
The Children’s Center of the Antelope Valley

Opposition

American Civil Liberties Union of California

Analysis Prepared by:

Date of Hearing: April 17, 2018

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:

Author:() – As Ver:

SUMMARY:

Requires every county to establish an on-line database to for specified agencies to track the reporting of substantiated allegations of child abuse and neglect by 2029. Specifically, this bill:

1. Makes legislative findings and declarations about the duties of law enforcement, district attorney offices, and county welfare departments to immediately, or as soon as practicably possible, cross-report cases involving allegations of child abuse and neglect, about the deficiencies of mandated reports which use the written Suspected Child Abuse Report (SCAR) form, and why electronic reports (E-SCARS) are better.
   
2. Requires every county to establish, on or before January 1, 2029, a secure on-line database for cross-reporting substantiated reports of child abuse and neglect among agencies and individuals authorized to receive that information.
   
3. States that the database must reflect a real time, Web-based information sharing system that allows rapid and secure electronic transmission and receipt of mandated cross-reports, ensuring that the proper agencies receive the report and providing a detailed history of past incidents of abuse entered into the system by child and family welfare agencies.
   
4. Requires each county to develop policies and procedures for entering, reviewing, and purging information in the database, criteria for substantiating reports, and retention periods for information.
   
5. Requires each county to develop a process for an individual to petition to have his or her name removed from the database if the report against the individual is found to be unsubstantiated.
   
6. States that a county with an existing online reporting system that meets these requirements is deemed to be compliant with this section.
   
7. Requires that each online database be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorney’s office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect.
   
8. Provides that each database must be used and operated in compliance with all state and federal regulations, statutes, and guidelines.
   
9. States that the database can only be used by law enforcement officials, child and family welfare service agencies, and district attorneys’ offices for the purposes of reporting and investigating reports of child abuse and neglect.
   
10. Requires all reports that are not substantiated to be purged from the database.
    
11. Defines “cross-reporting” as “the transmission of information to the agencies given responsibility for the investigation of cases under Section 300 of the Welfare and Institutions Code and subject to the mandated reporter requirements of Section 11166.”
    
12. States that this section does not relieve entities from the duty to submit substantiated reports of abuse and neglect to the Child Abuse Central Index (CACI) maintained by the Department of Justice (DOJ).
    
13. Names these provisions “Gabriel’s Law.”
    

EXISTING LAW:

1. Requires that any specified mandated reporter who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment whom the reporter knows, or reasonably suspects, has been the victim of child abuse, shall report it immediately to a specified child protection agency. (Pen. Code, § 11166, subd. (a).)
   
2. Requires specified local agencies to send the California Department of Justice (DOJ) reports of every case of child abuse or severe neglect that they investigate and determine to be substantiated. (Penal Code, § 11169, subd. (a).)
   
3. Directs the DOJ to maintain an index, referred to as the CACI, of all substantiated reports of child abuse and neglect submitted as specified. (Pen. Code § 11170, subds. (a)(1) and (a)(3).)
   
4. Allows DOJ to disclose information contained in the CACI to multiple identified parties for purposes of child abuse investigation, licensing, and employment applications for positions that have interaction with children. (Pen. Code, § 11170, subd. (b).)
   
5. Requires reporting agencies to provide written notification to a person reported to the CACI. (Pen. Code, § 11169, (c).)
   
6. Provide that, except in those cases where a court has determined that suspected child abuse or neglect has occurred or a case is currently pending before the court, any person listed in the CACI has the right to hearing which comports with due process before the agency that requested the person's CACI inclusion. (Pen. Code, §11169, subds. (d) and (e).)
   
7. Requires a reporting agency to notify the DOJ when a due process hearing results in a finding that a CACI listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
8. Requires the DOJ to remove a person's name from the CACI when it is notified that the due process hearing resulted in a finding that the listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
9. Provides that any person listed in CACI who has reached age 100 is to be removed from CACI. (Pen. Code, §11169, subd. (f).)
   
10. Provides that any non-reoffending minor who is listed in CACI shall be removed after 10 years. (Pen. Code, § 11169, subd. (g).)
    
11. Allows any county to establish a computerized data base system within that county to allow provider agencies, as defined, to share specified identifying information regarding families at risk for child abuse and neglect, for the purposes of forming multidisciplinary personnel teams. (Welf. & Inst. Code, § 18965.1, subd. (a).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Several agencies investigated allegations of abuse before Gabriel Fernandez’s death without removing him from the home. Despite the many attempts to alert the appropriate authorities, Gabriel was left to suffer at the hands of his guardians because of what is largely being deemed as ‘oversight.’ Cases, such as Gabriel’s, are, unfortunately, more prevalent in today’s society than they ought to be, and it is time we take the necessary steps to address these inefficiencies in a meaningful way. This bill will open lines of communication among the appropriate agencies within each county and ensure our kids do not fall through the cracks.”
   
2. Impetus for this Bill: According to the background provided by the author, this bill is the result of the tragic murder of eight-year-old Gabriel Fernandez by his mother and her boyfriend. On May 22, 2013, the Los Angeles Fire Department responded to a call in East Palmdale, reporting that Gabriel was not breathing. He was taken to the hospital with multiple injuries including a fractured skull, BB pellets in his lungs and groin, two missing teeth, broken ribs, and cigarette burns. Gabriel died from his injuries the following day.
   
   Before his death, Gabriel’s teacher had made several calls to the county after he came to school with bruising. A security guard had also made a call to 911 when he saw Gabriel with injuries, including what appeared to be cigarette burns. The 911 operator told him it was not an emergency. Several agencies had investigated allegations of abuse before Gabriel’s death without removing him from the home. Law enforcement had also responded to the home and school several times but concluded there was no evidence of abuse.
   
   Both Gabriel’s mother and her boyfriend were charged with murder. A jury convicted the boyfriend of murder and also found true a special circumstance allegation of murder involving the infliction of torture. In the penalty phase of the trial the jury subsequently voted for the death penalty. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.) Prosecutors also intend to seek the death penalty in the mother’s case. (<https://www.dailynews.com/2017/12/01/uncle-of-gabriel-fernandez-8-says-family-is-haunted-by-boys-torture-death/>.)
   
   Gabriel's death also led as well to criminal charges against several social workers, who left the boy in the home, based on a theory that their actions amounted to criminal negligence. In addition, the sheriff's deputies visited the home multiple times were later disciplined in connection with the death. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.)
   
   In response to Gabriel’s horrific death, this bill would require every county in the state to establish an on-line database for cross-reporting substantiated allegations of child abuse and neglect between the county welfare department, the district attorney’s office, and local law enforcement. The county databases are to be used as investigatory tools. However, it is not apparent how such a database would help in a case such as Gabriel’s since both law enforcement and social workers determined that allegations of abuse were unfounded. Moreover it should be noted that Los Angeles County already had established an on-line system for reporting allegations of abuse to be used as an investigatory tool by law enforcement, the district attorney’s office, referred to as E-SCARS, at the time of Gabriel’s death.
   
3. Problems with Local Databases: Investigatory databases established for other purposes have been criticized for inaccuracy and lack of oversight.
   
   For example, in August 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state. The audit revealed many concerns, including: the oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights; the governing entities act without statutory authority, transparency, or public input; there is little evidence that the governing entities have ensured user agencies to comply with federal regulations regarding databases; the investigators could not substantiate the validity of numerous CalGang entries; the gang databases were “tracking people who do not appear to justifiably belong in the system;” user agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings which is prohibited; user agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights; the programming underlying CalGang did not purge all records within the required time frame. (https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf)
   

Additionally, as will be discussed below, the statewide database for reporting child abuse was previously fraught with problems and the subject of extensive litigation.

Creating 58 databases of allegations of child abuse without oversight, minimum standards, or procedural safeguards raises the same policy concerns.

1. Child Abuse Central Index (CACI): The CACI was created in 1965 as a centralized system for collecting reports of suspected child abuse. This is not an index of persons who necessarily have been convicted of any crime; it is an index of persons against whom reports of child abuse or neglect have been made, investigated, and determined by the reporting agency (local welfare departments and law enforcement) to meet the requirements for inclusion, according to standards that have changed over the years.
   

Access to CACI initially was limited to official investigations of open child abuse cases, but in 1986 the Legislature expanded access to allow the Department of Social Services (DSS) to use the information for conducting background checks on applications for licenses, adoptions, and employment in child care and related services positions.

DOJ provides the following summary of CACI on its website:

"The Attorney General administers the Child Abuse Central Index (CACI), which was created by the Legislature in 1965 as a tool for state and local agencies to help protect the health and safety of California's children.

"Each year, child abuse investigations are reported to the CACI. These reports pertain to investigations of alleged physical abuse, sexual abuse, mental/emotional abuse, and/or severe neglect of a child. The reports are submitted by county welfare and probation departments.

"The information in the Index is available to aid law enforcement investigations, prosecutions, and to provide notification of new child abuse investigation reports involving the same suspects and/or victims. Information also is provided to designated social welfare agencies to help screen applicants for licensing or employment in child care facilities and foster homes, and to aid in background checks for other possible child placements, and adoptions. Dissemination of CACI information is restricted and controlled by the Penal Code.

"Information on file in the Child Abuse Central Index include:

• "Names and personal descriptors of the suspects and victims listed on reports;
• "Reporting agency that investigated the incident;
• "The name and/or number assigned to the case by the investigating agency;
• "Type(s) of abuse investigated; and
• "The findings of the investigation for the incident are substantiated.
  

"It is important to note that the effectiveness of the index is only as good as the quality of the information reported. Each reporting agency is required by law to forward to the DOJ a report of every child abuse incident it investigates, unless the incident is determined to be unfounded or general neglect. Each reporting agency is responsible for the accuracy, completeness and retention of the original reports. The CACI serves as a 'pointer' back to the original submitting agency." (See <http://oag.ca.gov/childabuse>.)

DOJ is not authorized to remove suspect records from CACI unless requested by the original reporting agency. (https://oag.ca.gov/childabuse/selfinquiry.)

1. Prior CACI Legislation and Litigation: In 1963, the Legislature began requiring physicians to report suspected child abuse. [See Smith v. M.D. (2003) 105 Cal.App.4th 1169 (discussing evolution of child abuse detection laws).] Two years later, the Legislature expanded the reporting scheme to require that instances of suspected abuse and neglect be referred to a central registry maintained by DOJ. In the early 1980s, the Legislature revised the then-existing laws and enacted the Child Abuse and Neglect Reporting Act (CANRA), which created the current version of the CACI. These revisions did not require that listed individuals be notified of the listing, nor were individuals even able to determine whether they were listed in the CACI.
   
   In Burt v. County of Orange (2004) 120 Cal.App.4th 273, the Court of Appeal held that a CACI listing implicates an individual's state constitutional right to familial and informational privacy, thus entitling the person to due process. (Id. at pp. 284-285.) Although the CACI does not explicitly grant a hearing for a listed individual to challenge placement on the CACI, the statutory scheme contained an implicit right to a hearing. (Id. at p. 285.) The court declined to provide guidance on what procedures that hearing should include. The court merely stated that the county social services agency was required to afford a listed individual a "reasonable" opportunity to be heard. (Id. at p. 286.)
   

In Humphries v. Los Angeles County (9th Cir. 2009) 554 F.3d 1170, 1200, the Ninth Circuit held that an erroneous listing of parents who were accused of child abuse on the CACI without notice and an opportunity to be heard would violate the parents' due process rights. Specifically,"[t]he lack of any meaningful, guaranteed procedural safeguards before the initial placement on CACI combined with the lack of any effective process for removal from CACI violates the [parents'] due process rights." (Id.) The court ruled that, "California must promptly notify a suspected child abuser that his name is on the CACI and provide 'some kind of hearing' by which he can challenge his inclusion." (Id. at 1201.)

In 2011, the Legislature amended the Child Abuse and Neglect Reporting Act to provide notice of inclusion and for a hearing to seek removal from the CACI. (See AB 717 (Ammiano), Chapter 468, Statutes of 2011.) The same legislation also limited the reports of abuse and neglect for inclusion in CACI to substantiated reports. Inconclusive and unfounded reports were removed.

While this bill, as amended, would limit reporting to “substantiated” reports of child abuse and neglect, there is no definition for that term. And while each county is required to develop a process for a person to petition to be removed from the database if the report is determined to be “unsubstantiated” (which is also not defined), there is no requirement that that an individual be given notice of inclusion, so how would a person know to petition for removal? What about removal of substantiated reports that do not result in conviction?
These are just some examples of potential due process concerns. Without uniform definitions, standards, and oversight, due process will vary by county. Arguably, creating county databases without standards and procedural safeguards will subject counties to similar litigation as the CACI litigation.

1. Los Angeles County E-SCARS: E-SCARS is an online reporting system that provides child welfare agencies with one central database containing histories of all abuse or neglect allegations, investigative findings and other information pertaining to a child or suspected perpetrator.
   
   The system links Los Angeles County Department of Children and Family Services’s Child Protection Hotline with the District Attorney’s Office, the Los Angeles County Sheriff’s Department, the Los Angeles Police Department and 45 other municipal police departments, and all city prosecutors’ offices.
   
   E-SCARS was implemented in 2009 (several years before Gabriel’s death). In April 2014, the Blue Ribbon Commission on Child Protection submitted a final report to the Los Angeles County Board of Supervisors, part of which detailed its findings and recommendations on E-SCARS. The commission found that “insufficient resources have been allocated for updating and maintaining ESCARS, as well as for needed oversight by the DA’s Office.” Other deficiencies included: Failure by some law enforcement agencies to cross-report (SCARs) to DCFS and the district attorney’s office and document their actions; differing standards among law enforcement agencies for investigating reports of alleged abuse; inadequate methods of retrieving cross-reported SCARs by law enforcement so that some are not seen for days; and lack of sufficient mandatory and continuing training for all levels of law enforcement personnel on handling child safety cases and E-SCARS. (See The Road to Safety for Our Children: Final Report of the Los Angeles County Blue Ribbon Commission on Child Protection, April 18, 2-14, pp. 15-16, <http://ceo.lacounty.gov/pdf/brc/BRCCP_Final_Report_April_18_2014.pdf>.)
   
   This bill would require each county to implement an on-line reporting database like E-SCARS by 2029.
   
2. Argument in Support: According to the Children’s Advocacy Institute, University of San Diego School of Law, “Existing law requires County welfare departments to, as soon as practicably possible, report to law enforcement, to the agency responsible for investigating child welfare cases, and to the district attorney’s office every known or suspected case of child abuse or neglect. This legislation offers the tools necessary to appropriately enforce standards of cross-reporting amongst agencies.
   
   “The case of eight-year-old Gabriel Fernandez is one that captured the nations’ attention and highlighted some of the inadequacies in our system. Cases, such as Gabriel’s, are, unfortunately, more prevalent in today’s society than they ought to be, and it is time we take the necessary steps to address these inefficiencies in a meaningful way.”
   
3. Argument in Opposition: According to the American Civil Liberties Union of California, “The creation of any government database containing sensitive personal information raises concerns regarding who will have access to the information, the uses to which the information will be put, and how the database will be kept secure from unauthorized access and use. Information regarding allegations of child abuse is of the highest sensitivity, especially when, as here, the information includes unproven allegations. Yet AB 1911 fails to specify which agencies will have access to the information contained in the proposed fifty-eight county databases or how they are authorized to use the information, stating only that there will be information sharing ‘including but not limited to’ cross-reporting among the county welfare department, the district attorney’s office and local law enforcement agencies. Nor does the bill require that implementation include safeguards against unauthorized access. Finally, to the extent the databases may be used for purposes beyond cross-reporting of information regarding ongoing investigations, there are no provisions regarding the rights of the individuals who will be listed on the databases to know what information is included regarding them or to challenge their inclusion.
   
   “A similar lack of safeguards and due process protections led to terrible due process violations and abuses regarding California’s statewide database of child abuse reports, the Child Abuse Central Index. Although some protections have been put in place as the result of litigation and legislative action, even with those changes there are still problems with the CACI system today. Under AB 1911, the same kinds of problems may be replicated in all fifty-eight counties with little or no legislative guidance or state oversight to prevent this from happening.”
   
4. Related Legislation: AB 2005 (Santiago) would require a police or sheriff’s department receiving a report of known or suspected child abuse or severe neglect to forward any such reports that are investigated and determined to be substantiated to the DOJ. AB 2005 is pending hearing in the Assembly Appropriations Committee.
   
5. Prior Legislation:
   
   1. AB 1707 (Ammiano), Chapter 848, Statutes of 2012, removed non-reoffending minors from the CACI after 10 years, and amended the CACI notice provisions.
      
   2. AB 717 (Ammiano), Chapter 468, Statutes of 2011, amended the CACI provisions by including only substantiated reports and removing inconclusive and unfounded reports from CACI.
      
   3. SB 1312 (Peace), Chapter 91, Statutes of 2002, would have made numerous changes to CACI including the purging of old reports. The provisions dealing with CACI were deleted before SB 1312 was chaptered.
      
   4. AB 2442 (Keeley), Chapter 1064, Statutes of 2002, established the Child Abuse and Neglect Reporting Act Task Force for the purpose of reviewing the act and CACI.
      
   5. AB 1447 (Granlund), of the 1999-2000 Legislative Session, would have made numerous changes to CACI including the purging of old reports. AB 1477 was never heard by the Senate Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Antelope Valley Boys and Girls Club
Children’s Advocacy Institute, University of San Diego School of Law
The Children’s Center of the Antelope Valley

Opposition

American Civil Liberties Union of California

Analysis Prepared by:

Date of Hearing:

Counsel: Sandra Uribe

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

ABPCA Bill Id:AB 1911

Author:(Lackey) – As Amended Ver:

SUMMARY:

Requires every county to establish an on-line database to for specified agencies to track the reporting of allegations of child abuse and neglect by 2029. Specifically, this bill:

1. Makes legislative declarations about the importance of law enforcement, district attorney offices, and county welfare departments cross-reporting cases involving allegations of child abuse and neglect.
   
2. Requires every county to establish, on or before January 1, 2029, a secure on-line database for cross-reporting allegations of child abuse and neglect among agencies and individuals authorized to receive that information.
   
3. Requires that each online database be implemented with policies to oversee the sharing of information, including, but not limited to, cross-reporting among the county welfare department, the district attorney’s office, and local law enforcement agencies, to ensure that each agency carries out its mandated investigative response to reports of child abuse or neglect.
   
4. Defines “cross-reporting” as “the transmission of information to the agencies given responsibility for the investigation of cases under Section 300 of the Welfare and Institutions Code and subject to the mandated reporter requirements of Section 11166.”
   
5. States that this section does not relieve entities from the duty to submit substantiated reports of abuse and neglect to the Child Abuse Central Index (CACI) maintained by the Department of Justice (DOJ).
   
6. Names these provisions “Gabriel’s Law.”
   

EXISTING LAW:

1. Requires that any specified mandated reporter who has knowledge of or observes a child, in his or her professional capacity or within the scope of his or her employment whom the reporter knows, or reasonably suspects, has been the victim of child abuse, shall report it immediately to a specified child protection agency. (Pen. Code, § 11166, subd. (a).)
   
2. Requires specified local agencies to send the California Department of Justice (DOJ) reports of every case of child abuse or severe neglect that they investigate and determine to be substantiated. (Penal Code, § 11169, subd. (a).)
   
3. Directs the DOJ to maintain an index, referred to as the CACI, of all substantiated reports of child abuse and neglect submitted as specified. (Pen. Code § 11170, subds. (a)(1) and (a)(3).)
   
4. Allows DOJ to disclose information contained in the CACI to multiple identified parties for purposes of child abuse investigation, licensing, and employment applications for positions that have interaction with children. (Pen. Code, § 11170, subd. (b).)
   
5. Requires reporting agencies to provide written notification to a person reported to the CACI. (Pen. Code, § 11169, (c).)
   
6. Provide that, except in those cases where a court has determined that suspected child abuse or neglect has occurred or a case is currently pending before the court, any person listed in the CACI has the right to hearing which comports with due process before the agency that requested the person's CACI inclusion. (Pen. Code, §11169, subds. (d) and (e).)
   
7. Requires a reporting agency to notify the DOJ when a due process hearing results in a finding that a CACI listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
8. Requires the DOJ to remove a person's name from the CACI when it is notified that the due process hearing resulted in a finding that the listing was based on an unsubstantiated report. (Pen. Code, § 11169, subd. (h).)
   
9. Provides that any person listed in CACI who has reached age 100 is to be removed from CACI. (Pen. Code, §11169, subd. (f).)
   
10. Provides that any non-reoffending minor who is listed in CACI shall be removed after 10 years. (Pen. Code, § 11169, subd. (g).)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “Several agencies investigated allegations of abuse before Gabriel Fernandez’s death without removing him from the home. Despite the many attempts to alert the appropriate authorities, Gabriel was left to suffer at the hands of his guardians because of what is largely being deemed as ‘oversight.’ Cases, such as Gabriel’s, are, unfortunately, more prevalent in today’s society than they ought to be, and it is time we take the necessary steps to address these inefficiencies in a meaningful way. This bill will open lines of communication among the appropriate agencies within each county and ensure our kids do not fall through the cracks.”
   
2. Impetus for this Bill: According to the background provided by the author, this bill is the result of the tragic murder of eight-year-old Gabriel Fernandez by his mother and her boyfriend. On May 22, 2013, the Los Angeles Fire Department responded to a call in East Palmdale, reporting that Gabriel was not breathing. He was taken to the hospital with multiple injuries including a fractured skull, BB pellets in his lungs and groin, two missing teeth, broken ribs, and cigarette burns. Gabriel died from his injuries the following day.
   
   Before his death, Gabriel’s teacher had made several calls to the county after he came to school with bruising. A security guard had also made a call to 911 when he saw Gabriel with injuries, including what appeared to be cigarette burns. The 911 operator told him it was not an emergency. Several agencies had investigated allegations of abuse before Gabriel’s death without removing him from the home. Law enforcement had also responded to the home and school several times but concluded there was no evidence of abuse.
   
   Both Gabriel’s mother and her boyfriend were charged with murder. A jury convicted the boyfriend of murder and also found true a special circumstance allegation of murder involving the infliction of torture. In the penalty phase of the trial the jury subsequently voted for the death penalty. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.) Prosecutors also intend to seek the death penalty in the mother’s case. (<https://www.dailynews.com/2017/12/01/uncle-of-gabriel-fernandez-8-says-family-is-haunted-by-boys-torture-death/>.)
   
   Gabriel's death also led as well to criminal charges against several social workers, who left the boy in the home, based on a theory that their actions amounted to criminal negligence. In addition, the sheriff's deputies visited the home multiple times were later disciplined in connection with the death. (http://www.latimes.com/local/lanow/la-me-ln-gabriel-fernandez-murder-penalty-20171213-story.html.)
   
   In response to Gabriel’s horrific death, this bill would require every county in the state to establish an on-line database for cross-reporting allegations of child abuse and neglect between the county welfare department, the district attorney’s office, and local law enforcement. The county databases are to be used as investigatory tools. However, it is not apparent how such a database would help in a case such as Gabriel’s since both law enforcement and social workers determined that allegations of abuse were unfounded. Would the reporting entities be required to enter every potential call for abuse even in situations where they concluded there was no abuse?
   
3. Problems with Local Databases: Investigatory databases established for other purposes have been criticized for inaccuracy and lack of oversight.
   
   For example, in August 2016, the California State Auditor released findings of the first ever investigation into the workings and impact of CalGang and the other shared gang databases that feed into it across the state. The audit revealed many concerns, including: the oversight structure is inadequate and does not ensure that user agencies collect and maintain criminal intelligence in a manner that preserves individuals’ privacy rights; the governing entities act without statutory authority, transparency, or public input; there is little evidence that the governing entities have ensured user agencies to comply with federal regulations regarding databases; the investigators could not substantiate the validity of numerous CalGang entries; the gang databases were “tracking people who do not appear to justifiably belong in the system;” user agencies that responded to the auditor’s statewide survey admitted that they use CalGang for employment or military-related screenings which is prohibited; user agencies have not ensured that CalGang records are added, removed, and shared in ways that maintain system accuracy and safeguard individuals’ rights; the programming underlying CalGang did not purge all records within the required time frame. (https://www.auditor.ca.gov/pdfs/reports/2015-130.pdf)
   

Additionally, as will be discussed below, the statewide database for reporting child abuse was previously fraught with problems and the subject of extensive litigation.

Creating 58 databases of allegations of child abuse without oversight, minimum standards, or procedural safeguards raises the same policy concerns.

1. Child Abuse Central Index (CACI): The CACI was created in 1965 as a centralized system for collecting reports of suspected child abuse. This is not an index of persons who necessarily have been convicted of any crime; it is an index of persons against whom reports of child abuse or neglect have been made, investigated, and determined by the reporting agency (local welfare departments and law enforcement) to meet the requirements for inclusion, according to standards that have changed over the years.
   

Access to CACI initially was limited to official investigations of open child abuse cases, but in 1986 the Legislature expanded access to allow the Department of Social Services (DSS) to use the information for conducting background checks on applications for licenses, adoptions, and employment in child care and related services positions.

DOJ provides the following summary of CACI on its website:

"The Attorney General administers the Child Abuse Central Index (CACI), which was created by the Legislature in 1965 as a tool for state and local agencies to help protect the health and safety of California's children.

"Each year, child abuse investigations are reported to the CACI. These reports pertain to investigations of alleged physical abuse, sexual abuse, mental/emotional abuse, and/or severe neglect of a child. The reports are submitted by county welfare and probation departments.

"The information in the Index is available to aid law enforcement investigations, prosecutions, and to provide notification of new child abuse investigation reports involving the same suspects and/or victims. Information also is provided to designated social welfare agencies to help screen applicants for licensing or employment in child care facilities and foster homes, and to aid in background checks for other possible child placements, and adoptions. Dissemination of CACI information is restricted and controlled by the Penal Code.

"Information on file in the Child Abuse Central Index include:

• "Names and personal descriptors of the suspects and victims listed on reports;
• "Reporting agency that investigated the incident;
• "The name and/or number assigned to the case by the investigating agency;
• "Type(s) of abuse investigated; and
• "The findings of the investigation for the incident are substantiated.
  

"It is important to note that the effectiveness of the index is only as good as the quality of the information reported. Each reporting agency is required by law to forward to the DOJ a report of every child abuse incident it investigates, unless the incident is determined to be unfounded or general neglect. Each reporting agency is responsible for the accuracy, completeness and retention of the original reports. The CACI serves as a 'pointer' back to the original submitting agency." (See <http://oag.ca.gov/childabuse>.)

DOJ is not authorized to remove suspect records from CACI unless requested by the original reporting agency. (https://oag.ca.gov/childabuse/selfinquiry.)

1. Prior CACI Legislation and Litigation: In 1963, the Legislature began requiring physicians to report suspected child abuse. [See Smith v. M.D. (2003) 105 Cal.App.4th 1169 (discussing evolution of child abuse detection laws).] Two years later, the Legislature expanded the reporting scheme to require that instances of suspected abuse and neglect be referred to a central registry maintained by DOJ. In the early 1980s, the Legislature revised the then-existing laws and enacted the Child Abuse and Neglect Reporting Act (CANRA), which created the current version of the CACI. These revisions did not require that listed individuals be notified of the listing, nor were individuals even able to determine whether they were listed in the CACI.
   
   In Burt v. County of Orange (2004) 120 Cal.App.4th 273, the Court of Appeal held that a CACI listing implicates an individual's state constitutional right to familial and informational privacy, thus entitling the person to due process. (Id. at pp. 284-285.) Although the CACI does not explicitly grant a hearing for a listed individual to challenge placement on the CACI, the statutory scheme contained an implicit right to a hearing. (Id. at p. 285.) The court declined to provide guidance on what procedures that hearing should include. The court merely stated that the county social services agency was required to afford a listed individual a "reasonable" opportunity to be heard. (Id. at p. 286.)
   

In Humphries v. Los Angeles County (9th Cir. 2009) 554 F.3d 1170, 1200, the Ninth Circuit held that an erroneous listing of parents who were accused of child abuse on the CACI without notice and an opportunity to be heard would violate the parents' due process rights. Specifically,"[t]he lack of any meaningful, guaranteed procedural safeguards before the initial placement on CACI combined with the lack of any effective process for removal from CACI violates the [parents'] due process rights." (Id.) The court ruled that, "California must promptly notify a suspected child abuser that his name is on the CACI and provide 'some kind of hearing' by which he can challenge his inclusion." (Id. at 1201.)

In 2011, the Legislature amended the Child Abuse and Neglect Reporting Act to provide notice of inclusion and for a hearing to seek removal from the CACI. (See AB 717 (Ammiano), Chapter 468, Statutes of 2011.) The same legislation also limited the reports of abuse and neglect for inclusion in CACI to substantiated reports. Inconclusive and unfounded reports were removed.

Arguably, creating county databases without standards and procedural safeguards will subject counties to similar litigation.

1. Argument in Support: None submitted.
   
2. Argument in Opposition: According to the American Civil Liberties Union of California, “The creation of any government database containing sensitive personal information raises concerns regarding who will have access to the information, the uses to which the information will be put, and how the database will be kept secure from unauthorized access and use. Information regarding allegations of child abuse is of the highest sensitivity, especially when, as here, the information includes unproven allegations. Yet AB 1911 fails to specify which agencies will have access to the information contained in the proposed fifty-eight county databases or how they are authorized to use the information, stating only that there will be information sharing ‘including but not limited to’ cross-reporting among the county welfare department, the district attorney’s office and local law enforcement agencies. Nor does the bill require that implementation include safeguards against unauthorized access. Finally, to the extent the databases may be used for purposes beyond cross-reporting of information regarding ongoing investigations, there are no provisions regarding the rights of the individuals who will be listed on the databases to know what information is included regarding them or to challenge their inclusion.
   
   “A similar lack of safeguards and due process protections led to terrible due process violations and abuses regarding California’s statewide database of child abuse reports, the Child Abuse Central Index. Although some protections have been put in place as the result of litigation and legislative action, even with those changes there are still problems with the CACI system today. Under AB 1911, the same kinds of problems may be replicated in all fifty-eight counties with little or no legislative guidance or state oversight to prevent this from happening.”
   
3. Related Legislation: AB 2005 (Santiago) would require a police or sheriff’s department receiving a report of known or suspected child abuse or severe neglect to forward any such reports that are investigated and determined to be substantiated to the DOJ. AB 2005 will be heard in this committee today.
   
4. Prior Legislation:
   
   1. AB 1707 (Ammiano), Chapter 848, Statutes of 2012, removed non-reoffending minors from the CACI after 10 years, and amended the CACI notice provisions.
      
   2. AB 717 (Ammiano), Chapter 468, Statutes of 2011, amended the CACI provisions by including only substantiated reports and removing inconclusive and unfounded reports from CACI.
      
   3. SB 1312 (Peace), Chapter 91, Statutes of 2002, would have made numerous changes to CACI including the purging of old reports. The provisions dealing with CACI were deleted before SB 1312 was chaptered.
      
   4. AB 2442 (Keeley), Chapter 1064, Statutes of 2002, established the Child Abuse and Neglect Reporting Act Task Force for the purpose of reviewing the act and CACI.
      
   5. AB 1447 (Granlund), of the 1999-2000 Legislative Session, would have made numerous changes to CACI including the purging of old reports. AB 1477 was never heard by the Senate Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

None

Opposition

American Civil Liberties Union of California

Analysis Prepared by:

Sandy Uribe / PUB. S. / (916) 319-3744