Duty to Assess Maternal Substance Abuse

Following is a legal analysis of health care providers' duty to assess maternal substance abuse at the time of delivery of an infant in order to determine the needs of the mother and the child and/or any risk to the child. Pursuant to Penal Code Section 11165.13 and Health and Safety Code Section 10901, this duty to assess is effective July 1, 1991. Failure to comply with these statutes may result in criminal or civil liability.
Penal Code Section 11165.13 was added by Statutes of 1990, Chapter 1603. The Legislative Analyst stated that it was the intent of the Legislature that:

"This bill would provide that a positive toxicology screen at the time of the delivery of an infant is not in and of itself a sufficient basis for reporting child abuse or neglect, but would require any indication of maternal substance abuse to lead to an assessment of the needs of the mother and child pursuant to a specified provision of law, and, if other factors are present that indicate risk to a child, a report would be required to be made as specified."

Section 11165.13 states in part:

" ... However, any indication of maternal substance abuse shall lead to an assessment of the needs of the mother and child pursuant to Section 10901 of the Health and Safety Code. If other factors are present that indicate risk to a child, then a report shall be made."

The word "shall" has a peremptory meaning and it is generally imperative or mandatory. "It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning..." (People v. O'Rourke, 124 CaI.App. 752)

"[A child] born with a detrimental condition caused by mother's unreasonable acts of ingesting dangerous drugs while pregnant with him create(s) a legal presumption that he is a person described by [Welfare & Institutions Code Section 300(a)]." (In re Troy D. (1989) 215 Cal.App.3d 889, 897.)

"Reasonable suspicion" means that it is objectively reasonable for a person to entertain a suspicion, based upon facts that could cause a reasonable person in a like position, drawing when appropriate on his or her training and experience, to suspect child abuse." (Penal Code Section 11166)

Section 11165.13 was added after section 11166 was amended. It is presumed that the legislature intended to add "risk to a child" as included within the phrase "child abuse" since the legislation must be interpreted so as to support the legislative intent and not interpreted in a way that leads to an unreasonable result.

Public policy and the legislative intent clearly show that a duty to assess and report arises upon a showing of the conditions contemplated by the statute.

Prepared by Robert J. Masterson, Deputy District Attorney, Santa Clara County, 4/25/94