HB 1801-FN - AS INTRODUCED
2018 SESSION
18-2136
05/03
HOUSE BILL 1801-FN
AN ACT relative to removal of a child under the child protection act and establishing the crime of abuse of a minor.
SPONSORS: Rep. Brewster, Merr. 21
COMMITTEE: Children and Family Law
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ANALYSIS
This bill:
I. Requires a police officer who removes a child from the home under RSA 169-C to also refer the case for criminal prosecution.
II. Requires a probable cause finding of abuse or neglect for a child to remain in protective custody for more than 48 hours.
III. Requires a finding of child abuse to be based on clear and convincing evidence.
IV. Permits jury trials under RSA 169-C.
V. Requires the child to be examined by a child abuse forensic doctor.
VI. Establishes the crimes of criminal abuse of a minor in the first, second, and third degree.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2136
05/03
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subparagraph; Purpose of the Child Protection Act. Amend RSA 169-C:2, II by inserting after subparagraph (e) the following new subparagraph:
(f) Make child abuse a crime and ensure that a child is not removed from the home unless the state has clear and convincing evidence of abuse.
2 Definition of Protective Custody. Amend RSA 169-C:3, XXIV to read as follows:
XXIV. "Protective custody'' means the status of a child who has been taken into physical custody by a police officer or juvenile probation and parole officer because the child was in such circumstances or surroundings which presented an imminent danger to the child's health or life and where there was not sufficient time to obtain a court order; provided that if the child is taken into protective custody by a juvenile probation and parole officer, a police officer is immediately notified.
3 Unfounded Report. Amend RSA 169-C:3, XXIX to read as follows:
XXIX. A report that is "unfounded but with reasonable concern'' means a report made pursuant to this chapter for which the department determines that there is probable cause to believe the child was abused or neglected, but for which there is insufficient evidence to establish by [a preponderance of the evidence] clear and convincing evidence that the child was abused or neglected.
4 Jurisdiction. Amend RSA 169-C:4 to read as follows:
169-C:4 Jurisdiction, Continued Jurisdiction[, Modification].
I. The court shall have exclusive original jurisdiction over all proceedings alleging the abuse or neglect of a child.
II. The court may, with the consent of the child, retain jurisdiction over any child, who, prior to his or her eighteenth birthday, was found to be neglected or abused and who is attending school until such child completes high school or until his or her twenty-first birthday, whichever occurs first; and the court is authorized to and shall make such orders relative to the support and maintenance of said child during the period after the child's eighteenth birthday as justice may require.
II-a. A child who has consented to the continued jurisdiction of the court pursuant to paragraph II, may revoke his or her consent and request that the case be closed. The revocation of consent and request to close a case shall be made in writing and filed with the court. Upon receipt of the request, the court shall forward copies to all parties of record at their last known address. If no party objects within 10 business days of the date the court forwarded copies of the request to the parties, the court shall accept the child's revocation of consent and shall close the case. If a party objects, the court may, after consideration of the objection, either grant the request and close the case without hearing or schedule the matter for hearing. If the matter is scheduled for hearing, the court shall accept the child's revocation of consent and close the case unless the court finds that immediate closure would create a risk of substantial harm to the child. If the court finds that immediate closure would create a risk of substantial harm to the child, the court shall continue the matter for a period not to exceed 30 days and direct that the department work with the child to develop an independent living plan which shall include referrals to appropriate services. If at the end of such period, the child still wishes to revoke his or her consent and to request that the case be closed, the court shall accept the revocation of consent and close the case.
[III. When a custody award has been made pursuant to this chapter, said order shall not be modified or changed nor shall another order affecting the status of the child be issued by the superior court except on appeal under RSA 169-C:28.]
5 Venue. Amend RSA 169-C:5 to read as follows:
169-C:5 Venue.
[I.] Proceedings under this chapter may be originated in the judicial district in which the child is found or resides.
[II. By the court, upon its own motion, or that of any party, proceedings under this chapter may, upon notice and acceptance, be transferred to another court as the interests of justice or convenience of the parties require.]
6 Protective Custody. RSA 169-C:6 is repealed and reenacted to read as follows:
169-C:6 Protective Custody.
I.(a) A police or juvenile probation and parole officer may take a child into protective custody without the consent of the parents or other person legally responsible for the child's care if the child is in such circumstances or surroundings as would present an imminent danger to the child's health or life unless immediate action is taken and there is not enough time to petition for a court order.
(b) If a juvenile probation and parole officer takes the child into protective custody, the juvenile probation and parole officer shall immediately contact the local police department regarding the circumstances that necessitated taking the child into protective custody.
(c) Upon taking a child into protective custody, or upon receiving notice of a child taken into protective custody, the police officer shall initiate a criminal investigation with the potential for prosecution under RSA 639:6 through 639:8. All local law enforcement officers shall be educated on the requirements of this chapter and the elements of criminal abuse of a minor under RSA 639:6 through 639:8
II. When a child is taken into protective custody:
(a) The police officer shall immediately provide written notice to the parents or guardian of the legal authority under which the child is being taken into protective custody; the crime or crimes for which the alleged perpetrator is being investigated; and a short plain statement of the issues involved.
(b) A child protection services worker may place the child in a non-contract, temporary placement pending the hearing. The child's parent or guardian shall be informed of the incident and where the child is placed within 24 hours of the placement.
(c) The police officer shall immediately provide written notice to the child's parents, department, and the court, whereupon a continued protective custody pending a hearing shall be scheduled.
III. The court shall hold a hearing on the matter within 48 hours of taking the child into protective custody, Saturdays, Sundays, and holidays excluded. Notice shall be given by the police to both parents, the department, and all parties designated by the petitioner or the court. The burden of proof shall be on the state to demonstrate probable cause to believe that the child is abused or neglected. If the court does not find probable cause to believe that the child is abused or neglected, the child shall be release from protective custody and returned to his or her home.
IV. Any police or juvenile probation and parole officer or other individual acting in good faith pursuant to this section, shall have immunity from any liability, civil or criminal, that might otherwise be incurred or imposed as a result of such removal or temporary placement.
7 Petition. Amend RSA 169-C:7, III to read as follows:
III. To be legally sufficient, the petition shall set forth the facts alleged to constitute abuse or neglect, [and] the statutory grounds upon which the petition is based, and the potential for criminal charges under RSA 639:6 through RSA 639:8.
8 Issuance of Summons. Amend RSA 169-C:8, I to read as follows:
I. After a petition has been filed [or an ex parte order issued], the court shall issue a summons to all persons named in the petition to be served by a law enforcement officer personally, or if personal service is not possible, at their usual place of abode. Such summons shall require the person or persons having custody or control of the child to appear personally, unless otherwise ordered, before the court at a time and place set for a preliminary hearing, which shall not be less than 24 hours nor more than 7 days after return of service of the petition.
9 Issuance of Summons. Amend RSA 169-C:8, IV to read as follows:
IV. The summons shall also contain a description and explanation of the proceedings and a statement of the rights of the person or persons summoned, under this chapter, and RSA 170-C[, and under the rules of court]. The summons shall also contain an explanation of the pending criminal investigation and the potential for criminal abuse charges under RSA 639:6 through RSA 639:8.
10 Evidence. Amend RSA 169-C:12 to read as follows:
169-C:12 Evidence. In any hearing under this chapter, the court shall [not] be bound by the technical rules of evidence [and may admit evidence which it considers relevant and material]. Evidence of prior founded or unfounded reports of abuse or neglect shall be admissible in proceedings under this chapter in order to establish a relevant pattern or course of conduct.
11 Burden of Proof. Amend RSA 169-C:13 to read as follows:
169-C:13 Burden of Proof. The petitioner has the burden to prove the allegations in support of the petition by [a preponderance of the] clear and convincing evidence.
12 Hearings Not Open to the Public; Jury Trial. Amend RSA 169-C:14 to read as follows:
169-C:14 Hearings Not Open to the Public. The general public shall be excluded from any hearing under this chapter and such hearing shall, whenever possible, be held in rooms not used for criminal trials; unless the parties request a jury trial. Only such persons as the parties, their witnesses, counsel and representatives of the agencies present to perform their official duties shall be admitted, except that other persons invited by a party may attend, with the court's prior approval. The court may provide docket information to invited persons.
13 Preliminary Hearing. Amend RSA 169-C:15, I and II to read as follows:
I. After [an ex parte order is issued or] a petition is filed, a preliminary hearing shall be conducted by the court to determine if [reasonable cause] clear and convincing evidence exists to believe that the child is abused or neglected.
II. The court shall immediately order an examination of the child by a child abuse forensic doctor. If, after considering the results of the examination, the court does not find [reasonable cause to believe] clear and convincing evidence that the child is abused or neglected, it shall dismiss the petition.
14 New Subparagraph; Preliminary Hearing. Amend RSA 169-C:15, III by inserting after subparagraph (d) the following new subparagraph:
(e) A child may be placed in an out-of-home placement only if the court finds clear and convincing evidence that the child is a victim of abuse or neglect.
15 Adjudicatory Hearing. Amend RSA 169-C:18, I to read as follows:
I. An adjudicatory hearing under this chapter shall be conducted by the court [separate from the trial of criminal cases] in conjunction with the criminal trial under RSA 639:6 through RSA 639:8.
16 Adjudicatory Hearing. Amend RSA 169-C:18, IV to read as follows:
IV. If [the court does not find sufficient evidence of neglect or abuse, it] the alleged perpetrator is not convicted of criminal abuse of a minor under RSA 639:6 through RSA 639:8, the court shall dismiss the petition.
17 New Sections; Criminal Abuse of a Minor. Amend RSA 639 by inserting after section 5 the following new sections:
639:6 Criminal Abuse of a Minor in the First Degree.
I. A person is guilty of criminal abuse of a minor in the first degree when he or she purposely or knowingly abuses a minor or permits a minor of whom he or she has physical or legal custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places the minor in a situation that may cause him or her serious physical injury; or
(c) Causes torture, cruel confinement, or cruel punishment.
II. Criminal abuse of a minor in the first degree is a class A felony.
III. In addition to any penalty provided under this section and any restitution which may be ordered by the court, the court may order any person convicted under the provisions of this section to pay all or any portion of the cost of medical, psychological, or psychiatric treatment of the child resulting from the act or acts for which the person is convicted, whether or not the child is considered to have sustained bodily injury.
639:7 Criminal Abuse of a Minor in the Second Degree.
I. A person is guilty of criminal abuse of a minor in the second degree when he or she recklessly abuses a minor or permits a minor of whom he or she has legal or physical custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places the minor in a situation that may cause him or her serious physical injury; or
(c) Causes torture, cruel confinement, or cruel punishment.
II. Criminal abuse in the second degree is a class B felony.
III. In addition to any penalty provided under this section and any restitution which may be ordered by the court, the court may order any person convicted under the provisions of this section to pay all or any portion of the cost of medical, psychological, or psychiatric treatment of the child resulting from the act or acts for which the person is convicted, whether or not the child is considered to have sustained bodily injury.
639:8 Criminal Abuse of a Minor in the Third Degree.
I. A person is guilty of criminal abuse of a minor in the third degree when he or she negligently abuses a minor or permits a minor of whom he or she has legal or physical custody to be abused and thereby:
(a) Causes serious physical injury; or
(b) Places the minor in a situation that may cause him or her serious physical injury; or
(c) Causes torture, cruel confinement, or cruel punishment.
II. Criminal abuse of a minor in the third degree is a class A misdemeanor.
III. In addition to any penalty provided under this section and any restitution which may be ordered by the court, the court may order any person convicted under the provisions of this section to pay all or any portion of the cost of medical, psychological, or psychiatric treatment of the child resulting from the act or acts for which the person is convicted, whether or not the child is considered to have sustained bodily injury.
18 Judicial Branch Family Division; Reference Change. Amend RSA 490-D:2, IV to read as follows:
IV. Actions under RSA 169-C, relating to abused and neglected children [except for concurrent jurisdiction with the district court to enter orders under RSA 169-C:6, VI and RSA 169-C:6-a].
19 Reference Change. Amend RSA 604-A:1-a to read as follows:
604-A:1-a Neglected or Abused Children. In cases involving a neglected or abused child, when a guardian ad litem is appointed for the child as provided in RSA 169-C:10, the cost of such appointment shall be paid from funds appropriated for indigent defense pursuant to this chapter. In cases involving a neglected or abused child, when an attorney is appointed to represent a parent determined to be indigent pursuant to RSA 169-C:10, II, at the preliminary hearing [or a hearing pursuant to RSA 169-C:6-a, III, whichever occurs earlier], the cost of such appointment shall be paid from funds appropriated for indigent defense pursuant to this chapter.
I. RSA 169-C:6-a, relative to emergency interim relief, is repealed.
21 Effective Date. This act shall take effect January 1, 2019.
18-2136
12/11/17
HB 1801-FN- FISCAL NOTE
AS INTRODUCED
FISCAL IMPACT: [ X ] State [ X ] County [ ] Local [ ] None
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STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
Funding Source: | [ X ] General [ ] Education [ X ] Highway [ X ] Other - Turpike Fund | |||
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COUNTY: |
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Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
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METHODOLOGY:
The Judicial Branch indicates this bill contains several provisions with a potential impact on the Branch and would increase general fund expenditures by an indeterminable amount. The Branch has identified those provisions and the associated fiscal impact.
Judicial Branch | FY 2019 | FY 2020 |
Class A Misdemeanor | $72 | $73 |
Routine Criminal Felony Case | $457 | $462 |
Appeals | Varies | Varies |
These amounts do not include the cost of any appeals taken following trial, or the additional cost of either joining the criminal trial for abuse of a child with the civil adjudicatory hearing under 169-C. It should be noted that average case cost estimates for FY 2019 and FY 2020 are based on data that is more than ten years old and does not reflect changes to the courts over that same period of time or the impact these changes may have on processing the various case types. | ||
The Judicial Council is required to pay for the cost of parent representation and Court Appointed Special Advocate (CASA) or guardian ad litem (GAL) services in these cases. The Council does not have information on the number of possible cases, but does have cost information. Parent Attorneys are reimbursed at a rate of $60 per hour with a cap of $1,700 through disposition. There is an additional cap of $300 for each review hearing and there are generally 4 hearings in the 12 months following disposition. Per the statutory order of appointment, CASA is appointed in the first instance. The Judicial Council has a two-year contract with CASA to provide these services. If CASA is unavailable, a private GAL is appointed to the case at a cost of $60 per hour with a cap of $1,400 through disposition. There is an additional cap of $300 for each review hearing. In FY 2017, the Judicial Council paid $1,868,000 for parent attorney, CASA and GAL costs. The addition of a probably cause hearing and the added complexity of preparing for a jury trial would dramatically increase these costs. The Council indicates it is not possible to determine how many petitions may be dismissed because the perpetrator does not meet the revised burden of proof as “clear and convincing”. The Council provided the potential costs associated with the felony and misdemeanor charges included in the bill:
Judicial Council |
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Public Defender Program | Has contract with State to provide services. | Has contract with State to provide services. |
Contract Attorney – Felony B | $825/Case | $825/Case |
Contract Attorney – Misdemeanor | $300/Case | $300/Case |
Contract Attorney – Major Crimes (criminal abuse of a minor Felony A) | $2,490/Case | $2,490/Case |
Assigned Counsel – Major Crimes (criminal abuse of a minor Felony A) | $100/Hour up to $8,000
| $100/Hour up to $8,000
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Assigned Counsel – Felony | $60/Hour up to $4,100 | $60/Hour up to $4,100 |
Assigned Counsel – Misdemeanor | $60/Hour up to $1,400 | $60/Hour up to $1,400 |
It should be noted that a person needs to be found indigent and have the potential of being incarcerated to be eligible for indigent defense services. The majority of indigent cases (approximately 85%) are handled by the public defender program, with the remaining cases going to contract attorneys (14%) or assigned counsel (1%). | ||
The Department of Corrections does not have information to predict the number of individuals who would be subject to this legislation, but provides the following average cost information:
FY 2017 Average Cost of Incarcerating an Individual | $36,960 | $36,960 |
FY 2017 Annual Marginal Cost of a General Population Inmate | $4,555 | $4,555 |
FY 2017 Average Cost of Supervising an Individual on Parole/Probation | $557 | $557 |
The New Hampshire Association of Counties determined this bill could impact county expenditures. The Association indicates the impact on prosecution costs cannot be determined, but the average daily cost to the counties of incarcerating an individual is between $85 and $100.
The Department of Justice is generally not involved with the prosecution of such offenses which are typically prosecuted by local or county prosecutors. Appeals from any conviction from these offenses would be handled by the Criminal Justice Bureau and could be done within the Department’s current budget.
The Department of Safety states this bill requires a police officer who removes a child from the home under RSA 169-C to also refer the case for criminal prosecution. The bill also a requires probable cause finding of abuse and neglect for a child to remain in custody for more than 48 hours and requires a finding of child abuse based on clear and convincing evidence. The Department of Safety indicates state expenditures would increase due to the additional work required to investigate such cases.
The Department of Health and Human Services states this bill would have an indeterminable impact on the Department's expenditures. The Department identified the following sections of the bill with a potential fiscal impact:
The New Hampshire Municipal Association states it does not appear this bill would have any significant impact on municipal revenues or expenditures.
AGENCIES CONTACTED:
Departments of Justice, Corrections, Safety and Health and Human Services, Judicial Branch, Judicial Council, New Hampshire Association of Counties and New Hampshire Municipal Association
| Date | Body | Type |
|---|---|---|
| Feb. 13, 2018 | House | Hearing |
| Feb. 20, 2018 | House | Exec Session |
| Feb. 21, 2018 | House | Exec Session |
| House | Floor Vote | |
| March 6, 2018 | House | Floor Vote |
March 6, 2018: Inexpedient to Legislate: MA VV 03/06/2018 HJ 6 P. 8
March 6, 2018: Committee Report: Inexpedient to Legislate for 03/06/2018 (Vote 13-0; CC) HC 9 P. 5
: Committee Report: Inexpedient to Legislate (Vote 13-0; CC)
Feb. 21, 2018: ==RESCHEDULED== Executive Session: 02/21/2018 11:00 AM LOB 206
Feb. 20, 2018: Executive Session: 02/20/2018 11:00 AM LOB 206
Feb. 13, 2018: Public Hearing: 02/13/2018 03:15 PM LOB 206
Jan. 3, 2018: Introduced 01/03/2018 and referred to Children and Family Law HJ 1 P. 24