# People Ex Rel. Eichenberger v. Stockton Pregnancy Control Medical Clinic, Inc.

> California Court of Appeal · July 28, 1988 · 203 Cal. App. 3d 225

URL: https://www.frixlaw.com/law-library/cases/9723697

## Case

- **Full name:** The PEOPLE Ex Rel. RICHARD W. EICHENBERGER, as District Attorney, Etc., Plaintiff and Respondent, v. STOCKTON PREGNANCY CONTROL MEDICAL CLINIC, INC., Et Al., Defendants and Appellants
- **Court:** California Court of Appeal
- **Decided:** July 28, 1988
- **Citations:** 203 Cal. App. 3d 225; 249 Cal. Rptr. 762; 1988 Cal. App. LEXIS 724
- **Precedential status:** Published
- **Opinion:** Concurrence by Puglia
- **Judges:** Sims, Puglia
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9723697

## How later opinions describe it (automated extraction)

- finding the goals of detecting and preventing child abuse are a "compelling" government interest

## Opinion text

PUGLIA, P. J.
I concur in the judgment and opinion of the court. However, because the court’s opinion accepts uncritically the holding of Planned Parenthood Affiliates v. Van de Kamp (1986) 181 Cal.App.3d 245 , I write separately to register my strong disagreement with that decision. That disagreement notwithstanding, I acknowledge I am not at liberty to repudiate or ignore Planned Parenthood. This inability derives from the presumption that the Legislature by subsequent amendment adopted Planned Parenthood’s holding that it is not the intent of the Child Abuse and Neglect Reporting Act (Act) to impose a duty to report voluntary sexual conduct between minors under 14 and of similar age. As stated by the Supreme Court, “ ‘[wjhere a statute has been construed by judicial decision, and that construction is not altered by subsequent legislation, it must be presumed that the Legislature is aware of the judicial construction and approves of it.’ (People v. Hallner (1954) 43 Cal.2d 715, 719 [ 277 P.2d 393 ; People v. Fox (1977) 73 Cal.App.3d 178, 181 [ 140 Cal.Rptr. 615 ].)” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 [ 211 Cal.Rptr. 742 , 696 P.2d 134 ].)
Although I am bound to presume that in amending the Act (Stats. 1987, ch. 1459) the Legislature acted with knowledge of Planned Parenthood and its holding (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [ 20 Cal.Rptr. 321 , 369 P.2d 937 ]), there is absolutely nothing in the statutory history which would support that presumption. Because the Planned Parenthood holding substantially emasculates the Act as it applies to the most vulnerable class within its protection, children under 14, the presumption constitutes an egregiously mischievous fiction.
The major premise of Planned Parenthood is flawed. The court postulates ambiguity in the Act as to whether it requires reporting as child abuse the voluntary sexual activity of a minor under age 14 with another minor of similar age. The Act requires a report to be made on “reasonable suspicion” of child abuse (Pen. Code, § 11166). “Child abuse” means “sexual abuse.” (Pen. Code, § 11165.6.) “Sexual abuse” means sexual assault which in turn means “conduct in violation of . . . subdivision (a) or (b) of section 288 (lewd or lascivious acts upon a child under 14 years of age) . . . .” (Pen. Code, § 11165.1.) In the clearest of language the act requires health practi *245 tioners and others to whom it applies who reasonably suspect that a child under the age of 14 has been the victim of a violation of section 288 of the Penal Code forthwith to report the suspected instance of child abuse to the appropriate authority.
Unconvinced that the statute means what it says, the Planned Parenthood court begins its “analysis of the intent of the Legislature by noting that a court engaging in statutory interpretation ‘ “should take into account matters such as context, the object in view, the evils to be remedied, [and] the history of the times.” ’ ” (Planned Parenthood, supra, 181 Cal.App.3d at p. 266 .) Following this ambitious preamble, the court identifies the principles which will inform its inquiry into legislative intent. Relying on “factual material . . . presented to [the] court in the form of extensive declarations by health care professionals and references to statistical and sociological studies” (id., at p. 268, fn. 9), the court sets out these “factual premises”: “First, there are minors under 14 who are voluntarily engaging in sexual activity and who ‘urgently need health care relating to their sexual conduct.’ Ample statistical studies show considerable voluntary sexual activity on the part of young adolescents, many under the age of 14. Because of their sexual activity, these young minors have an urgent need for prenatal care, contraception, abortion services and treatment for sexually transmitted diseases. Second, if such minors are unable to obtain reproductive health care on a confidential basis, without their sexual conduct being reported to law enforcement for investigation, they will be deterred from seeking such care. Third, large numbers of minors in need of prenatal care, abortions to prevent unwanted parenthood, treatment for sexually transmitted diseases and the like will refrain from seeking medical care, to the obvious detriment of their health and that of their infants and sexual partners. For example, young teens are less likely to receive adequate prenatal care and suffer higher rates of infant mortality and birth defects; the sexually transmitted disease known as chlamydia leads to infertility, ectopic pregnancy and increased infant mortality, and is considered of epidemic proportions among teenagers.” (Fn. omitted; id., at p. 268.) Furthermore, “Minors will also be deterred from seeking birth control. The [Attorney General] concludes a minor’s request for information regarding birth control will not trigger a reporting obligation if no past sexual conduct is indicated. Petitioners cite studies showing that many minors engage in sex first and seek birth control assistance second; they also assert that because health care professionals generally conduct counseling sessions before prescribing a particular birth control method, prior sexual activity will be revealed and a reporting obligation will arise in virtually every birth control request.” (Id., at p. 268, fn. 8.) Finally “It is nearly impossible to establish a professional, therapeutic relationship without a promise of confidentiality which the *246 professional can keep. Also, requiring the reporting of voluntary conduct will overburden the reporting system and divert resources from the investigation of reports of actual abuse—thereby working a detriment to the very abused children the Legislature has acted to protect.” (Id., at p. 269.)
Planned Parenthood's “factual premises” are not adjudicative facts in any sense of the word. Neither are they part of the legislative history of the Act although it may be assumed that these same issues were considered by the Legislature which passed the Act. They are legislative facts, i.e., “facts which help the tribunal determine the content of law and of policy and help the tribunal to exercise its judgment or discretion in determining what course of action to take .... [I]n most cases the applicable law and policy have been previously established. But whenever a tribunal engages in the creation of law or of policy, it may need to resort to legislative facts . . . .” (2 Davis, Administrative Law (1958) § 15.03 p. 353.) It bears emphasis that the issue before the Planned Parenthood court involved statutory interpretation, not “the creation of law or of policy.”
The Act has established the policy of the law. The court’s “factual premises” simply argue with the wisdom of that settled legislative policy. They are not relevant to the intent of the Act. And to the extent they are relevant to the policy choice (a choice for the Legislature, not the courts), they logically argue against the reporting of suspected abuse in the case of all children under age 14 irrespective of the age of the perpetrator, i.e., whether of similar age as Planned Parenthood holds, or, as here, 21 years old. Perhaps for this reason the Planned Parenthood court simply sets forth these “factual premises” and, then without explicitly pressing them into further service, shifts the focus of its analysis to other issues. Nevertheless, the very articulation of these premises provides a revealing context in which to evaluate the Planned Parenthood opinion.
Ultimately the Planned Parenthood court’s interpretation of the Act so as to exempt reporting of voluntary sexual conduct of minors under 14 and of similar age rests upon two grounds: (1) The interpretation is said to be necessary to harmonize the Act with other statutes which medically emancipate minors, a conclusion with which we disagree (see maj. opn., ante, pp. 237-238); and (2) since an under 14 year old “is probably legally incapable [under Pen. Code, §26] of violating section 288” ( 181 Cal.App.3d at p. 273 ), his conduct otherwise in violation of that section would not create a “victim of child abuse.” (Pen. Code, § 1116.)
Absent clear proof they know of its wrongfulness, children under the age of 14 are not capable of committing a crime. (Pen. Code, § 26.) However, *247 the Act is not concerned with adjudicating guilt or fixing criminal responsibility. Rather it directs specified persons such as health practitioners to report instances of child abuse which they know of or reasonably suspect. (Pen. Code, § 11166.) “[Reasonable suspicion’ means that it is objectively reasonable for a person to entertain such 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.” (Pen. Code, § 11166.) The duty to report arises only when the health practitioner or other person covered by the Act “. . . has knowledge of or observes a child in his or her professional capacity or within the scope of his or her employment whom he or she knows or reasonably suspects has been the victim of child abuse . . . .” (Italics added; Pen. Code, § 11166, subd. (a).) Thus there is no duty to investigate to determine if in fact there has been child abuse but only to observe and report facts constituting reasonable suspicion of child abuse which come to the attention of the reporting individual in the course of his or her professional capacity or employment. As the majority opinion states, “nothing in the Act requires professionals such as health practitioners to obtain information they would not ordinarily obtain in the course of providing care or treatment.” (Ante, pp. 239-240.)
Where a health practitioner treats a child under 14, the observed fact that the child either is or has been pregnant or has a sexually transmitted disease alone constitutes reasonable suspicion the child has been the victim of violation of Penal Code section 288 and thus of child abuse. Unless it is essential for purposes of diagnosis or treatment, the health practitioner has no duty in such cases gratuitously to investigate and determine the person responsible for the child’s condition or that person’s age. The statutes assign the investigative function to other agencies of government. If the investigation discloses the person responsible for the condition of the child is incapable of criminal conduct and there is no child abuse, the report will be deemed unfounded and handled accordingly. (Pen. Code, §§ 11169, 11170.)
“Reasonable suspicion” is not unlike probable cause or other like standards which imply a lack of absolute certainty or even the presence of reasonable doubt. A number of official actions, many with consequences more dire to the affected individual than the investigation called for by the Act, are authorized on probable cause or its equivalent. Common examples are arrests and searches some of which lead to prolonged incarceration or deprivation of property although ultimately determined to be “unfounded.” Another example is found in Penal Code section 844 which allows an officer forcibly to enter a house to make a felony arrest if he has “reasonable grounds for believing” the suspected felon is within. If the elements of section 844 are otherwise satisfied, the officer is not first required to *248 ascertain if the suspect is over the age of 13 before acting, much less his criminal capacity under the other subdivisions of Penal Code section 26. The same is true in making a felony arrest on probable cause.
Planned Parenthood's interpretation of the Act is not only erroneous, it will lead to several mischievous consequences. First, it may be read to suggest health practitioners dealing with patients under age 14 who are or have been pregnant or have a sexually transmitted disease have a duty to conduct an investigation into matters unrelated to and beyond the scope of their legitimate professional duties. Otherwise, if the health practitioner does not determine the age of the perpetrator, no duty to report arises unless the patient volunteers the information, an unlikely prospect in most cases. Second, by exempting the voluntary sexual conduct of children under 14 and of similar age it creates a hopelessly blurred line when a bright one should exist to guide health practitioners and others subject to the Act. A person under age 14 is not conclusively presumed incapable of committing a violation of Penal Code section 288. It is not all that unusual for mature children age 13 or younger sexually to molest children even younger than they knowing it is wrong to do so. Is such a 13 year old of similar age to a 10 or 11 year old? Is a health practitioner who sees and deals only with the “victim” in a position to make that judgment? Third, it would deny protection to the under 14 year old who is sexually abused by an authority figure, e.g., parent, step-parent, etc., and is for that reason fearfully reticent without active encouragement to disclose the perpetrator’s identity or any information about him. Fourth, it permits wholesale evasion by health practitioners unsympathetic to the policy of the Act who may with impunity adopt the strategem of remaining wilfully ignorant of information which in any event is of no medical significance, i.e., the age of the perpetrator.
Under the Planned Parenthood interpretation of the Act, many cases of genuine child abuse will go unreported in the category of the under age 14 victim, i.e., the victim of sexual abuse most in need of the protection the Act was designed to afford. Although bound by that interpretation, I believe it is egregiously wrong.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9723697. Public record. Not legal advice.