As seen in our article on Child Custody and Visitation Under California Law, parents have a legal obligation to care for and protect their children and failure to do so can even impose criminal sanctions. In one instance, however, most states provide for laws that allow a parent to abandon a child to the State’s care without liability of any type. This is often called “safe haven” law and they are passed to protect the child from abandonment which might endanger the child.
Safe haven laws are laws that allow any person statutorily defined by law, usually parents, to abandon an unharmed newborn baby at any location permitted by law. Safe haven laws were enacted in response to an increased number of infant abandonment and infanticide. Texas, in 1999, enacted the first Baby Moses or safe haven law. California followed suit a few years later.
Safe haven laws are also known as Baby Moses law, Safe Place law, Safe Arms for Newborns law, Safe Delivery law, or Safe Surrender law depending upon the state in which they are enacted. Safe haven laws vary by state and they are known by different names in various states.
In the United States almost all the states have safe haven laws that allow parents or statutorily defined persons to relinquish their newborns at any safe location authorized by the statute. Safe haven laws offer various protections to the newborn and the person relinquishing the newborn. However, the abandonment should be according to the governing laws to avail protections guaranteed.
The Basic Law:
Safe haven laws generally allow the parent, or an agent of the parent, to remain anonymous. Often, a numbered bracelet system remains the only link between the newborn and its parent. Safe haven laws shield the parent or agent of the parent from prosecution for abandonment or child neglect.
Relinquishment of a newborn is legal only if the relinquished newborn is within the age limit permitted by state laws. Age limit for surrendering a newborn to a safe haven location vary from state to state. Some states place the maximum age of an infant that can be relinquished as three days; whereas, there are states that have extended the age limit to one year.
All safe haven statutes specifically provide where a baby may be relinquished. Some state laws allow a newborn to be handed to a doctor or church, and others mention specific places in the hospital such as an emergency room with a nurse where the newborn may be abandoned. Commonly, hospitals, manned fire house, on duty police stations, church, adoption agencies, and health care providers are considered to be safe locations. However, newborn abandonment will be legal only if it is in accordance with the concerned state laws.
The California Safe Haven Law:
Newborn abandonment in California in particular, prompted the state to initiate steps towards saving the newborns and giving them a chance to live. The Melissa Drexler “Prom Mom Case” which drew wide publicity also convinced the state of the need to frame legislation legalizing the abandonment of newborns.
Consequently, California enacted Safe Arms for Newborns Law in the year 2001. The law later came to be known as safely surrendered baby (SSB) law. The law aims to protect abandoned babies from being hurt or killed by providing their parents or lawful custodian a safe-surrender site to abandon unwanted babies not older than three days. In October 2005, the Governor signed the legislation extending SSB laws permanently with effect from January 1, 2006.
In California, parents or any individual having physical custody of a newborn may voluntarily relinquish a newborn not more than 72 hours old to any personnel on duty at a safe-surrender site. Cal Health & Saf Code § 1255. The term “safe-surrender site” as defined in Cal Health & Saf Code § 1255.7 means a designated employee on duty at a public or private hospital emergency room or any other location designated by the Board of Supervisors of the county. The law specifically states:
(1) For purposes of this section, “safe-surrender site” means either of the following:
(A) A location designated by the board of supervisors of a county 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 pursuant to Section 271.5 of the Penal Code.
(B) 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 pursuant to Section 271.5 of the Penal Code.
Any person who is an officer or employee of a safe-surrender site or who has staff privileges at the site may accept physical custody of an abandoned infant if the infant is not older than 72 hours. Such person must be on duty while accepting infant voluntarily relinquished by its parents or physical custodians. Cal Health & Saf Code § 1255.7
All public or private hospitals with emergency rooms, or any other locations designated by the County Board of Supervisors, must designate staff to comply with the SSB law requirements. Hospitals/Safe-surrender site assigned by the County Board of Supervisors must post a sign using a statewide logo adopted by the State Department of Social Services that notifies the public of the location where a three day old or younger infant may be safely surrendered by its parents or physical custodian according to the relevant state laws. Cal Health & Saf Code § 1255.7
An employee at the safe-surrender site must:
- take physical custody of an infant voluntarily relinquished by its parent or physical custodian at the site if the infant is not more than three days old.
- ensure that a coded, confidential ankle bracelet is placed on the infant by a qualified person.
- make reasonable efforts to give a copy of the confidential bracelet code of the infant to its parent or any other individual surrendering the infant. This is to facilitate reclaiming the infant if any petition has not been filed by the Child Protective Services or county agency. However, possession of identification code itself does not establish parentage or right to physical custody of infant.
- make good faith efforts to provide a medical information questionnaire to the person surrendering the infant in order to get information on medical background of surrendered infant. The person may voluntarily fill out the questionnaire or reject to fill out the questionnaire. If the person intends to fill out the questionnaire, he/she may fill it out at the safe-surrender site, or may accept the questionnaire, fill it out at a later date and mail it to the safe-surrender site. However, the questionnaire must not include any identifying information of the infant, infant’s parent, or person surrendering the infant. The only identifying information required to be on the medical information questionnaire is the ankle bracelet identification code. All medical questionnaire start with a notice informing the person surrendering the infant that their support is required to ensure the infant’s healthy future. The notice states that the infant’s family medical history may be required to treat illness that the infant may develop in future, and some life saving treatments may require relatives. Therefore, information from the questionnaire would be helpful in solving health problem that the infant may develop in future.
- ensure that primary medical care is given to the surrendered infant. The personnel shall also conduct a medical screening examination of infant.
- notify Child Protective Services or concerned county agency providing child welfare services within 48 hours of taking possession. Additionally, any information regarding the infant’s health including information from the medical questionnaire should be disclosed to the Child Protective Services or county agency. Cal Health & Saf Code § 1255.7
Upon receiving notice of possession from safe-surrender site, the Child Protective Services or County Agency providing child welfare services shall assume temporary custody of child; immediately investigate the circumstances of the case and file a petition as per section 311 of the Welfare and Institutions Code (dealing with procedure to be followed in cases where the probation officer determines that the minor shall be retained in custody).] Immediately after taking temporary custody of child, the Child Protective Services/ County Agency providing child welfare services must notify the State Department of Social Services of each child. Additionally, the Child Protective Services or County Agency must also notify the California Missing Children Clearinghouse and the National Crime Information Center. However, any identifying information regarding the infant’s parents or individual surrendering the infant need not be disclosed. Notification must be within 24 hours of assuming temporary custody.
Any personal information relating to the infant, its parents, or the individual surrendering the infant obtained from the medical questionnaire is confidential. Such information is exempt from disclosure by the Child Protective Services or County Agency under the California Public Records Act. However, personal information may be redacted from medical information provided to the Child Protective Services or County Agency. Cal Health & Saf Code § 1255.7
Reclaiming the Child:
Any person who surrendered a child according to the SSB laws may reclaim the child either before, or after the Child Protective Services or County Agency files a petition under section 311 of the Welfare and Institution Code (dealing with procedure to be followed in cases where the probation officer determines that the minor shall be retained in custody). Cal Health & Saf Code § 1255.7
If any parent/individual makes a request to the safe-surrender site employee having physical custody of the child to return the child prior to the filing of petition by the Child Protective Services or County Agency, the safe-surrender site personnel may: a) return the child if they have actual physical custody of the child; or b) contact the Child Protective Agency if they believe that the child has been subject to child abuse or neglect.
Subsequent to the Child Protective Services or County Agency filing a petition, if any parent/individual makes a request to return the child within 14 days of voluntary surrender, the Child Protective Agency may verify the identity of parent or individual and conduct an investigation regarding their ability to take care of the child. After that, the Agency may request the juvenile court to dismiss the dependency petition and release the child if the child welfare agency determines that the conditions in subdivision (a) to (d) of section 319 of the Welfare and Institutions Code such as danger to physical health of the child, and chances of the physical custodian fleeing from the jurisdiction does not exist.
Safe-surrender site/ safe-surrender site employees accepting physical custody of the child shall not be subject to any civil, criminal or administrative liability for discharging in good faith their duties required by law. They are also exempt from liability for accepting in good faith a child older than 72 hours, or accepting child from a person who does not have actual physical custody of child believing that he/she has actual lawful custody. However, they are not immune from actions for personal injury or wrongful death of the child.
Assisting in the Surrender of the Infant:
Any person who without remuneration and in good faith assists an individual in voluntarily surrendering their three day old or younger child is not civilly liable for the death or injury of the minor child as a result his/her act or omission. However, the act or omission should not be due to gross negligence, recklessness or willful misconduct. This provision is to encourage people in assisting individuals voluntarily surrendering a newborn in accordance with the SSB laws. The term “assistance” and “lawful custody” as defined in Cal Health & Saf Code § 1255.7 shall mean:
(i)(2) For purposes of this section, “assistance” means transporting the minor child to the safe-surrender site as a person with lawful custody, or transporting or accompanying the parent or person with lawful custody at the request of that parent or person to effect the safe surrender, or performing any other act in good faith for the purpose of effecting the safe surrender of the minor.
(j) For purposes of this section, “lawful custody” means physical custody of a minor 72 hours old or younger accepted by a person from a parent of the minor, who the person believes in good faith is the parent of the minor, with the specific intent and promise of effecting the safe surrender of the minor.
Confidentiality of the Surrendering Person:
Any personal or identifying information regarding the infant’s parent or individual surrendering the infant obtained from the medical questionnaire or from any other sources is confidential. Such information must not be disclosed by any safe-surrender site personnel accepting custody of an infant. The information is also exempt from disclosure under the California Public Records Act. Cal Health & Saf Code § 1255.7
Any parent or individual having lawful custody of an infant may voluntarily surrender an infant not more than three days old to any personnel at safe-surrender site without incurring any liability for violation of Section 270, 270.5, 271, or 271a of the California Penal Code (dealing with punishment for abandonment or neglect of a minor child/child below the age of 14.).
Conclusion:
California started a public awareness campaign known as “No Shame, No Blame, No Names” to make the public aware of SSB laws. The campaign uses the funds from First 5 California, and Children’s Trust. Phase two of the campaign was started in March 2003. The campaign aimed to heighten public awareness on SSB laws. The campaign gained wide publicity via media coverage.
The rationale behind the law is clear-protect the infant. That need to protect the infant trumps all the usual punishments and legal problems that parents encounter when charged with child neglect. Once surrendered, the child is usually adopted and the usual laws applicable to that status are discussed in other articles on our website. See Adopted Child’s Right to Information as to Biological Parents.
Any person seriously considering abandoning an infant is already desperate and emotional. This law allows the child to be protected while maintaining the full anonymity for the parent and allowing both to maximize their chances to have a good life.
Note that the right to so abandon the child ends soon after birth and nothing in the law allows neglect or harm to a child under any circumstances.