Bill Details - HB696 (2019)

HB 696-FN - AS AMENDED BY THE HOUSE

 

27Feb2019... 0395h

2019 SESSION

19-0014

01/10

 

HOUSE BILL 696-FN

 

AN ACT establishing a protective order for vulnerable adults.

 

SPONSORS: Rep. Cushing, Rock. 21; Rep. McMahon, Rock. 7; Rep. Campion, Graf. 12; Rep. Long, Hills. 10; Rep. Gordon, Graf. 9; Rep. Marsh, Carr. 8; Sen. Chandley, Dist 11; Sen. Carson, Dist 14; Sen. Hennessey, Dist 5

 

COMMITTEE: Health, Human Services and Elderly Affairs

 

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ANALYSIS

 

This bill establishes a procedure for protective orders for vulnerable adults.

 

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

27Feb2019... 0395h 19-0014

01/10

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Nineteen

 

AN ACT establishing a protective order for vulnerable adults.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  New Chapter; Protective Orders for Vulnerable Adults.  Amend RSA by inserting after chapter 173-C the following new chapter:

CHAPTER 173-D

PROTECTIVE ORDERS FOR VULNERABLE ADULTS

173-D:1  Purpose.  The purpose of this chapter is to enable vulnerable adults, to seek permanent and temporary relief from abuse, exploitation, and neglect.

173-D:2  Definitions.  In this chapter:

I.  “Abuse” means any one of the following:

(a)  “Emotional abuse” means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in the mental anguish or emotional distress of a vulnerable adult.

(b)  “Physical abuse” means the use of physical force which results or could result in physical injury to a vulnerable adult.

(c)  “Sexual abuse” means contact or interaction of a sexual nature involving a vulnerable adult without his or her informed consent.

(d)  “Other abuse” means any of the following:

(1)  Assault or reckless conduct as defined in RSA 631:1 through RSA 631:3.

(2)  Criminal threatening as defined in RSA 631:4.

(3)  Sexual assault as defined in RSA 632-A:2 through RSA 632-A:5.

(4)  Interference with freedom as defined in RSA 633:1 through RSA 633:3-a.

(5)  Destruction of property as defined in RSA 634:1 and RSA 634:2.

(6)  Unauthorized entry as defined in RSA 635:1 and RSA 635:2.

(7)  Harassment as defined in RSA 644:4.

(8) Cruelty to animals as defined in RSA 644:8.

II.  “Authorized” means written consent provided by the vulnerable adult.

III.  “Contact” means any action to communicate with another either directly or indirectly, including, but not limited to, using any form of electronic communication, leaving items, or causing another to communicate in such fashion.

IV.  “Defendant” means the person against whom the protective orders are sought and, if the petition is granted, the restrained person.

V.  “Department” means the department of health and human services.

VI.  “Exploitation” means the improper use of a vulnerable adult's person or property for another person's profit or advantage, or the breach of a fiduciary relationship through the use of a person or a person's property for any purpose not in the proper and lawful execution of a trust, including, but not limited to, situations where a person obtains money, property, or services from a vulnerable adult through the use of undue influence, harassment, duress, deception, fraud or under any circumstances where the person knew or had reason to know that the vulnerable adult lacked capacity to consent.

VII.  “Foreign protective order” means an order enforceable under RSA 173-D:14.

VIII.  “Neglect” means an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health and safety of a vulnerable adult.

IX.  “Plaintiff” means the vulnerable adult to be protected by the protective orders and, if the court grants the petition, the protected person.

X.  “Vulnerable” means that the physical, mental, or emotional ability of a person is such that he or she is unable to manage personal, home, or financial affairs in his or her own best interest, or he or she is unable to act or unable to delegate responsibility to a responsible caretaker or caregiver.

173-D:3  Jurisdiction and Venue.

I.  The district division and the judicial branch family division of the circuit courts shall have concurrent jurisdiction over all proceedings under this chapter.

II.  If the plaintiff has left the household or premises to avoid further abuse, the plaintiff shall have the option to commence proceedings pursuant to RSA 173-D:4 in the county or district where the plaintiff temporarily resides.

III.  Proceedings under this chapter may be transferred to another court upon the motion of any party or of the court as the interests of justice or the convenience of the parties may require.

173-D:4  Commencement of Proceedings; Hearing.

I.  A vulnerable adult, guardian, or attorney-in-fact of a vulnerable adult, or if authorized by the vulnerable adult, the department, may seek relief pursuant to RSA 173-D:6 by filing a petition, in the county or district where the plaintiff or defendant resides, alleging abuse, exploitation or neglect by the defendant.  Any person filing a petition containing false allegations of abuse shall be subject to criminal penalties.  Notice of the pendency of the action and of the facts alleged against the defendant shall be given to the defendant, either personally or as provided in paragraph II.  The plaintiff shall be permitted to supplement or amend the petition only if the defendant is provided an opportunity prior to the hearing to respond to the supplemental or amended petition.  All petitions filed under this section shall include the home and work telephone numbers of the defendant, if known.  Notice of the whereabouts of the plaintiff shall not be revealed except by order of the court for good cause shown.  Any answer by the defendant shall be filed with the court and a copy shall be provided to the plaintiff by the court.

II.  No filing fee or fee for service of process shall be charged for a petition or response under this section, and the plaintiff or defendant may proceed without legal counsel.  Either a peace officer or the sheriff’s department shall serve process under this section.  Any proceeding under this chapter shall not preclude any other available civil or criminal remedy.

III.  The clerks of the circuit courts shall supply forms for petitions and for relief under this chapter designed to facilitate pro se proceedings.  All such petitions shall contain the following words: I swear that the foregoing information is true and correct to the best of my knowledge.  I understand that making a false statement on this petition will subject me to criminal penalties.

IV.(a)  The court shall hold a hearing within 30 days of the filing of a petition under this section or within 10 days of service of process upon the defendant, whichever occurs later.

(b)  The time frame established in this paragraph may be extended for an additional 10 days upon motion by either party for good cause shown.  A recusal by the judge or any act of God or closing of the court that interferes with the originally scheduled hearing shall not be cause for the dismissal of the petition.  The court shall reschedule any hearing under this section in an expeditious manner.

V.  In any proceeding 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.

VI.  In a proceeding under this chapter, a support person may accompany a party in court and, if the party is not represented by an attorney, may sit with the party at the table that is generally reserved for the party and the party's attorney.  The support person is present to provide moral and emotional support for a person who alleges he or she is a victim of abuse.  The support person is not present as a legal adviser and may not provide legal advice.  The support person may assist the person who alleges he or she is a victim of abuse in feeling more confident that he or she will not be injured or threatened by the other party during the proceedings if the person who alleges he or she is a victim of abuse and the other party are required to be present in close proximity.  This section does not preclude the court from exercising its discretion to remove the support person from the courtroom if the court believes the support person is prompting, swaying, or influencing the party assisted by the support person.

173-D:5  Temporary Relief.

I.  Upon a showing of an immediate and present danger of abuse, exploitation, or neglect, the court may enter temporary orders to protect the plaintiff with or without actual notice to defendant.  The court may issue such temporary orders by telephone, facsimile or any other methods approved by court rules.  Such telephonically issued orders shall be made by a circuit court judge to a law enforcement officer, shall be valid in any jurisdiction in the state, and shall be effective until the close of the next regular court business day.  Such orders shall be returnable to the circuit court where the plaintiff resides or to which the plaintiff has fled, unless otherwise ordered by the issuing judge.  If non-telephonic temporary orders are made ex parte, the party against whom such relief is issued may file a written request with the clerk of the court and request a hearing on such orders.  Such hearing shall be held no less than 3 business days and no more than 5 business days after the request is received by the clerk.  Such hearings may constitute the final hearing described in RSA 173-D:4, V.   Such temporary relief may include:

(a)  Protective orders:

(1)  Restraining the defendant from abusing, exploiting, or neglecting the plaintiff.

(2)  Restraining the defendant from entering the premises and curtilage where the plaintiff resides, except when the defendant is accompanied by a peace officer and, upon reasonable notice to the plaintiff, is allowed entry by the plaintiff for the sole purpose of retrieving toiletries, medication, clothing, business equipment, and any other items as determined by the court.

(3)  Restraining the defendant from withholding items of the plaintiff’s personal property which are specified in the order.  A peace officer shall accompany the plaintiff or his/her representative in retrieving such property to protect the plaintiff.

(4)  Restraining the defendant from contacting the plaintiff or entering a specified place frequented regularly by the plaintiff.

(5)  Restraining the defendant from abusing the plaintiff, plaintiff’s relatives, regardless of their place of residence, or plaintiff’s household members in any way.

(6)  Restraining the defendant from taking, converting, or damaging property in which the plaintiff may have a legal or equitable interest.

(7)  Granting the plaintiff exclusive care, custody, or control of any animal owned, possessed, leased, kept, or held by the plaintiff or by the plaintiff jointly with the defendant in either household, and ordering the defendant to stay away from the animal and forbidding the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect, or disposing of the animal.

(b)  Other relief, including but not limited to:

(1)  In the case of financial exploitation, prohibiting the defendant from transferring or otherwise encumbering any of his or her assets other than for necessary household expenses, provided, however, that such prohibition shall not extend to, encumber, or otherwise limit the rights of creditors, mortgagees, or secured parties in such property.

(2)  Restraining the defendant from taking any action which would lead to the disconnection of any and all utilities and services to the parties’ household, or the discontinuance of existing business or service contracts, including, but not limited to, mortgage or rental agreements.

(3)  An order enjoining a party from specified behavior that the court determines is necessary to protect the vulnerable adult.

(4)  If the court makes a specific finding that it is necessary for the protection of the plaintiff, the court may issue an order directing the defendant to relinquish to a police officer any and all firearms and ammunition in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant for the duration of the protective order.

173-D:6  Relief.

I.  A finding of abuse, exploitation, or neglect shall mean the defendant represents a credible threat to the safety of the plaintiff or physical, mental, or financial well-being.  Upon a showing of abuse, exploitation, or neglect of the plaintiff by a preponderance of the evidence, the court shall grant such relief as is necessary to bring about a cessation of abuse, exploitation, or neglect.  Such relief may include:

(a)  Protective orders:

(1)  Restraining the defendant from abusing, exploiting or neglecting the plaintiff.

(2)  Restraining the defendant from entering the premises and curtilage where the plaintiff resides, except when the defendant is accompanied by a peace officer and is allowed entry by the plaintiff for the sole purpose of retrieving personal property specified by the court.

(3)  Restraining the defendant from contacting the plaintiff or entering the plaintiff’s place of employment, school, or any specified place frequented regularly by the plaintiff or by any family or household member.

(4)  Restraining the defendant from abusing the plaintiff, plaintiff’s relatives, regardless of their place of residence, or plaintiff’s household members in any way.

(5)  Restraining the defendant from taking, converting, or damaging property in which the plaintiff may have a legal or equitable interest.

(6)  Granting the plaintiff exclusive care, custody, or control of any animal owned, possessed, leased, kept, or held by the plaintiff or by the plaintiff jointly with the defendant in either household, and ordering the defendant to stay away from the animal and forbidding the defendant from taking, transferring, encumbering, concealing, committing an act of cruelty or neglect, or disposing of the animal.

(b)  Other relief including, but not limited to:

(1)  Granting the plaintiff the exclusive use and possession of the premises and curtilage of the plaintiff’s place of residence, unless the defendant exclusively owns or leases and pays for the premises and the defendant has no legal duty to support the plaintiff and provided, however, that such relief shall not extend to, extinguish, encumber, or otherwise limit the rights of creditors, mortgagees, or secured parties in such property.

(2)  Restraining the defendant from withholding items of the plaintiff’s personal property specified by the court.  A peace officer shall accompany the plaintiff in retrieving such property to protect the plaintiff.

(3)  Granting to the plaintiff the exclusive right of use and possession of the household furniture, furnishings, or a specific automobile, unless the defendant exclusively owns such personal property and the defendant has no legal duty to support the plaintiff.

(4)  Ordering the defendant to make automobile, insurance, health care, utilities, rent, or mortgage payments if the defendant has a legal or fiduciary duty to do so.

(5)  Ordering the defendant to pay the plaintiff monetary compensation for losses suffered as a direct result of the abuse, exploitation, or neglect which may include, but not be limited to, misappropriated funds, loss of earnings or support, medical and dental expenses, damage to property, out-of-pocket losses for injuries sustained, and moving and shelter expenses.

(6)  If the court makes a specific finding that it is necessary for the protection of the plaintiff, issuing an order directing the defendant to relinquish to a police officer any and all firearms and ammunition in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant for the duration of the protective order.

(7)  Ordering the defendant to pay reasonable attorney’s fees.

II.  If the court makes a specific finding that it necessary for the protection of the plaintiff, the court may prohibit the defendant from purchasing, receiving, or possessing any deadly weapons and any and all firearms and ammunition for the duration of the order.  The court may subsequently issue a search warrant authorizing a peace officer to seize any deadly weapons specified in the protective order and any and all firearms and ammunition, if there is probable cause to believe such firearms and ammunition and specified deadly weapons are kept on the premises or curtilage of the defendant.

III.  The court shall not deny the plaintiff protective orders based solely on a lapse of time between an act of abuse, exploitation, or neglect and the filing of a petition, provided that the underlying act presents a credible threat to the plaintiff’s current safety or physical, mental, or financial well-being.

IV.  No order made under this section shall supersede or affect any court order pertaining to the possession of a residence or household furniture as determined by a circuit court, or title to real or personal property.

V.  The findings of fact with respect to the protective order shall be final, but questions of law may be transferred from the circuit court to the supreme court.

VI.  Any order under this section shall be for a fixed period of time not to exceed one year, but may be extended by order of the court upon a motion by the plaintiff, showing good cause, with notice to the defendant, for one year after the expiration of the first order and thereafter each extension may be for up to 5 years, upon the request of the plaintiff and at the discretion of the court.  The court shall review the order and each renewal thereof and shall grant such relief as may be necessary to provide for the safety and well-being of the plaintiff.  A defendant shall have the right to a hearing on the extension of any order under this paragraph to be held within 30 days of the extension.  The court shall state in writing, at the respondent’s request, its reason or reasons for granting the extension.  The court shall retain jurisdiction to enforce and collect any financial compensation due to the plaintiff which accrued prior to the expiration of the protective order.

VII.  Both parties shall be issued written copies of any orders issued by the court, and all orders shall bear the following language:  “A willful violation of this order is a crime, as well as contempt of court.  Violations of the protective provisions shall result in arrest and may result in imprisonment.”  Orders shall clearly state how any party can request a further hearing and how the plaintiff may bring a criminal complaint or a petition for contempt if there is a violation of any court order.

VIII.(a)  No order issued under this chapter shall be modified other than by the court.

(b)  If either party wishes the defendant to be excused from any provisions of an order of protection, the remedy is to petition the court for modification of such order.

(c)  A defendant who is restrained from contacting the plaintiff or entering the premises of the plaintiff is prohibited from doing so even if invited by the plaintiff unless the restraining order has been modified by the court.

(d)  This paragraph shall give unequivocal direction to peace officers that orders for protection are to be enforced as written and that no action by a party relieves them of the duty to enforce the order.

IX.  Upon issuing an order against a defendant, in which a defendant is restrained from having any contact with the plaintiff, the court shall advise the plaintiff that it would be unwise and possibly unsafe for the plaintiff to contact the defendant.  If the plaintiff wishes to contact the defendant for any reason, the court shall advise the plaintiff that such contact be made only after petitioning the court for a modification of the order.  In an emergency situation, the plaintiff or plaintiff’s family may request that the local police department notify the defendant and the local police may accompany the defendant to a designated location, such as a hospital, if appropriate.

X.(a)  A copy of each protective order issued under this chapter shall be transmitted to the administrative office of the courts by facsimile or computer.  An emergency protective order issued telephonically shall be transmitted by telephone or facsimile to the department of safety.

(b)  The administrative office of the courts shall enter information regarding the protective orders into the state database which shall be made available to police and sheriff departments statewide.  The department of safety shall make available information regarding emergency protective orders issued telephonically to police and sheriff departments statewide.

(c)  The administrative office of the courts shall update the database upon expiration or termination of a protective order.

(d)  Notwithstanding any other provision of law, the administrative office of the courts, the department of health and human services, or the department of safety, their employees and agents, and law enforcement officials shall not be held criminally or civilly liable for action taken under this chapter or RSA 458:16, provided they are acting in good faith and without gross negligence, and within the scope of their duties and authority.

XI.  If a criminal records check conducted by the department of safety indicates that a potential buyer or transferee is prohibited from receipt or possession of a firearm pursuant to a protective order issued under this chapter, the department of safety shall notify the administrative office of the courts of the denial.  The administrative office of the courts shall immediately notify the plaintiff that the defendant has attempted to purchase or obtain a firearm in violation of the protective order.

XII.(a)  Within 15 days prior to the expiration of the protective orders, the defendant may request, by motion to the court, the return of any and all firearms and ammunition and specified deadly weapons held by the law enforcement agency while the protective order was in effect.  Upon receipt of such a motion, the court shall schedule a hearing no later than 15 days after the expiration of the order.  The court shall provide written notice to the plaintiff who shall have the right to appear and be heard, and to the law enforcement agency which has control of the firearms, ammunition, and specified deadly weapons.  The scope of the hearing shall be limited to:

(1)  Establishing whether the defendant is subject to any state or federal law or court order that precludes the defendant from owning or possessing a firearm; and

(2)  Under circumstances where the plaintiff has requested an extension of the protective order, whether the plaintiff has established by a preponderance of the evidence that the defendant continues to represent a credible threat to the safety of the plaintiff.

(b)  If the court finds that the defendant is not subject to any state or federal law or court order precluding the ownership or possession of firearms, or if the court denies the plaintiff's request to extend the protective order, the court shall issue a written order directing the law enforcement agency to return the requested firearms, ammunition, or deadly weapon to the defendant.

(c)  Law enforcement agencies shall not release firearms and ammunition and specified deadly weapons without a court order granting such release.  The law enforcement agency may charge the defendant a reasonable fee for the storage of any firearms and ammunition and specified deadly weapons taken pursuant to a protective order.  The fee shall not exceed the actual cost incurred by the law enforcement agency for the storage of the firearms and ammunition and specified deadly weapons.  The defendant may make alternative arrangements with a federally licensed firearms dealer for the storage of firearms, at the defendant's own expense, upon approval of the court.  Such firearms shall be turned over to the appropriate law enforcement agency for transfer to the storage facility.  Retrieval of such firearms shall be through the law enforcement agency responsible for their transfer to the storage facility pursuant to a court order as prescribed in this paragraph.

(d)  No law enforcement agency shall be held liable for alleged damage or deterioration due to storage or transportation to any firearms and ammunition and specified deadly weapons held by a law enforcement agency, provided that due care is used.

173-D:7  Permissible Contact.

I.  A protective order issued pursuant to RSA 173-D:5 or RSA 173-D:6 shall not be construed to prohibit an attorney, or any person acting on the attorney’s behalf, who is representing the defendant in an action brought under this chapter, or in any criminal proceeding concerning the abuse alleged under this chapter, from contacting the plaintiff for a legitimate purpose within the scope of the civil or criminal proceeding; provided, that the attorney or person acting on behalf of the attorney: identifies himself or herself as a representative of the defendant; acknowledges the existence of the protective order and informs the plaintiff that he or she has no obligation to speak; terminates contact with the plaintiff if the plaintiff expresses an unwillingness to talk; and ensures that any personal contact with the plaintiff occurs outside of the defendant’s presence, unless the court has modified the protective order to permit such contact.

II.  A no-contact provision in a protective order issued pursuant to RSA 173-D:5 or RSA 173-D:6 shall not be construed to:

(a)  Prevent contact between counsel for represented parties; or

(b)  Prevent a party from appearing at a scheduled court or administrative hearing; or

(c)  Prevent a defendant or defendant’s counsel from sending the plaintiff copies of any legal pleadings filed in court relating to the petition or related civil or criminal matters.

III.  A violation of this section may result in a finding of contempt of court.

173-D:8  Guardian Ad Litem.  In all proceedings under this chapter, the court may appoint a guardian ad litem to represent the interests of the vulnerable adult.  The guardian ad litem may continue to serve after the final disposition of the case.

173-D:9  Notification.

I.  A copy of any order made under this chapter which prohibits any person from abusing another shall be promptly transmitted to the local law enforcement agency having jurisdiction to enforce such order.

II.  Temporary orders shall be promptly served on the defendant by a peace officer.  Subsequent orders shall be sent to the defendant’s last address of record.  The defendant shall be responsible for informing the court of any changes of address.  Law enforcement agencies shall establish procedures whereby a peace officer at the scene of an alleged violation of such an order may be informed of the existence and terms of such order.

III.  Any court-ordered changes or modifications of the order shall be effective upon issuance of such changes or modifications, and shall be mailed or otherwise provided to the appropriate local law enforcement agency and transmitted to the department of safety within 24 hours of the entry of such changes or modification.

173-D:10  Violation of Protective Order; Penalty.

I.(a)  When the defendant violates either a temporary or permanent protective order issued or enforced under this chapter, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment, provided that in extreme circumstances, such as when the health of the defendant would be jeopardized by the temporary detention, a judge in response to a request by the arresting law enforcement officer or agency, may order an alternative to detention pending arraignment.  Such arrests may be made within 12 hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.

(b)  Subsequent to an arrest, the peace officer may seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order.  If seized, the law enforcement agency shall maintain possession of the firearms, ammunition, or deadly weapons until the court issues an order directing that the firearms, ammunition, or deadly weapons be relinquished and specifying the person to whom the firearms and ammunition or deadly weapons will be relinquished.

II.  The prosecution and sentencing for criminal contempt for a violation of a protective order shall not preclude the prosecution of or sentencing for other criminal charges underlying the contempt.

III.  A person shall be guilty of a class A misdemeanor if such person knowingly violates a protective order issued under this chapter or any foreign protective order enforceable under the laws of this state.  Charges made under this chapter shall not be reduced to a lesser charge, as permitted in other instances under RSA 625:9.

IV.  Any person convicted under paragraph III, or who has been convicted in another jurisdiction of violating a protective order enforceable under the laws of this state, who, within 6 years of such conviction or the completion of the sentence imposed for such conviction, whichever is later, subsequently commits and is convicted of one or more offenses involving abuse may be charged with an enhanced penalty for each subsequent offense as follows:

(a)  There shall be no enhanced charge under this section if the subsequent offense is a class A felony or an unclassified felony;

(b)  If the subsequent offense would otherwise constitute a class B felony, it may be charged as a class A felony;

(c)  If the subsequent offense would otherwise constitute a class A misdemeanor, it may be charged as a class B felony;

(d)  If the subsequent offense would otherwise constitute a class B misdemeanor, it may be charged as a class A misdemeanor;

(e)  If the subsequent offense would otherwise constitute a violation, it may be charged as a class B misdemeanor.

V.  A victim of abuse, exploitation, or neglect shall be entitled to all rights granted to victims of crime under RSA 21-M:8-k.

173-D:11  Protection by Peace Officers.

I.  Whenever any peace officer has probable cause to believe that a person has been abused, exploited, or neglected, as defined in RSA 161-F:43 and RSA 173-D:2, that officer shall use all means within reason to prevent further abuse, exploitation, or neglect including, but not limited to:

(a)  Confiscating any deadly weapons involved in the alleged abuse, exploitation or neglect.

(b)  Transporting or obtaining transportation for the victim to a place of safety, local family member, or friend.

(c)  Assisting the victim in removing toiletries, medication, clothing, and any other items determined by the court.

(d)  Giving the victim immediate and written notice of the rights of victims and of the remedies and services available to victims of abuse, exploitation and neglect.  The written notice shall include a statement substantially as follows:

“If you are the victim of abuse, exploitation and neglect and you believe that law enforcement protection is needed for your physical safety, you have the right to request that the officer assist in providing for your safety, including asking for an emergency telephonic order for protection.  You may also request that the officer assist you in obtaining from your premises and curtilage, toiletries, medication, clothing, business equipment, and any other items as determined by the court, and in locating and taking you to a local safe place including, but not limited to, a place of safety a family member’s or friend’s residence, or a similar place of safety.  If you are in need of medical treatment, you have the right to request that the officer assist you in obtaining an ambulance.  You may request a copy of the report filed by the peace officer, at no cost, from the law enforcement department."

173-D:12  Notice to the Victim.

I.  Notwithstanding the peace officer’s obligations in RSA 173-D:11, all peace officers shall give victims of abuse, exploitation, and neglect immediate and adequate notice of their right to go to the circuit court of their county to file a petition asking for protective orders against the abusive person and to seek a private criminal complaint.

II.  The clerk of the court shall be responsible for advising victims of their right to request that the judge issue an order which may include:

(a)  Restraining the defendant from abusing, exploiting, and/or neglecting the victim.

(b)  Directing the defendant to leave and stay away from the victim’s premises and curtilage.

(c)  Restraining the defendant from contacting the victim, or entering any specified place frequented regularly by the victim.

(d)  Restraining the defendant from abusing, in any way, the victim, household members, or victim’s relatives, regardless of their place of residence.

(e)  Restraining the defendant from taking, converting, or damaging personal or real property in which the victim may have a legal or equitable interest.

(f)  Ordering the defendant to pay the victim monetary compensation for losses suffered as a direct result of the abuse, exploitation, or neglect which may include, but not be limited to, misappropriated funds, loss of earnings or support, medical and dental expenses, damage to property, out-of-pocket losses for injuries sustained, and moving and shelter expenses.

(g)  Ordering the removal of any and all firearms and ammunition in the control, ownership, or possession of the defendant.

(h)  Ordering the defendant to pay reasonable attorney’s fees.

173-D:13  Emergency Care; Limitation and Liability.  Any act or omission of any peace officer rendering emergency care or assistance to a victim under this chapter including, but not limited to transportation, shall not impose civil liability upon the peace officer or the peace officer’s supervisors or employer if the care or assistance is rendered in good faith, unless the act or omission is a result of gross negligence or willful misconduct.

173-D:14  Orders Enforceable.

I.  Any protective order issued under this chapter shall be effective throughout the state.

II.  Any protective order issued by any other state, tribal, or territorial court related to abuse, exploitation or neglect of a vulnerable adult, including an ex parte order, shall be deemed valid if the issuing court had jurisdiction over the parties and matter under the law of the state, tribe, or territory, and the person against whom the order was made was given reasonable notice and opportunity to be heard.  There shall be a presumption of validity where an order appears facially valid.

III.  Any valid protective order, as defined in paragraph II, shall be accorded full faith and credit throughout the state.

IV.  A person entitled to protection under a foreign protective order, as defined in paragraph II, may file such order in any circuit court by filing with the court a certified copy of the order.  Such person shall swear under oath in an affidavit to the best of such person’s knowledge that the order is presently in effect as written.  Such filing shall be without fee or cost.  The clerk of the circuit court shall forward such order to the administrative office of the courts which shall enter such order in the state database.  Such filing shall not be a precondition to arrest or enforcement of a foreign order.

V.  A peace officer may rely upon a copy of any protective order issued under this chapter or upon a copy of a foreign protective order, as defined in this section, which has been provided to the peace officer by any source.

VI.  Law enforcement personnel may rely on the statement of the person protected by the order that the order remains in effect as written.

173-D:15  Reporting and Referrals.  Any law enforcement officer who investigates an alleged incident of abuse, exploitation, or neglect of a vulnerable adult shall report the matter to the department pursuant to RSA 161-F:46 and advise the person subject to such violence of the availability of programs from which that person may receive services.

173-D:16  Severability.  If any provision of this chapter or the application of such provision to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provisions or applications, and to this end the provisions of this chapter are severable.

2  Effective Date.  This act shall take effect January 1, 2020.

 

LBAO

19-0014

Amended 3/5/19

 

HB 696-FN- FISCAL NOTE

AS AMENDED BY THE HOUSE (AMENDMENT #2019-0395h)

 

AN ACT establishing a protective order for vulnerable adults.

 

FISCAL IMPACT:      [ X ] State              [ X ] County               [    ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2020

FY 2021

FY 2022

FY 2023

   Appropriation

$0

$0

$0

$0

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other

 

 

 

 

 

COUNTY:

 

 

 

 

   Revenue

$0

$0

$0

$0

   Expenditures

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

 

METHODOLOGY:

This bill enacts a new chapter that provides a process enabling vulnerable adults to seek permanent and temporary relief from abuse, exploitation, and neglect.  As part of this process, the Department of Health and Human Services is authorized, but not mandated, to file a petition in a county or district where the plaintiff or other defendant resides alleging abuse, exploitation, or neglect by the defendant.  The Department states that, were it to directly file the petitions, there would likely be additional personnel costs as well as mileage expenses for Department lawyers, adult protective service workers, and any other witnesses necessary to properly prosecute the petition.  In addition, the Department assumes that even in cases in which it is not the moving party filing the petition, its personnel would still be utilized as witnesses.  The Department is unable to estimate the extent of any additional costs.

 

This bill contains penalties that may have an impact on the New Hampshire judicial and correctional systems.  There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures.  However, the entities impacted have provided the potential costs associated with these penalties below.

 

Judicial Branch

FY 2020

FY 2021

Class B Misdemeanor

$53

$54

Class A Misdemeanor

$76

$77

Routine Criminal Felony Case

$481

$486

Protective Order

$166

$167

Warrant Request

$76

$77

Appeals

Varies

Varies

 

 

 

It should be noted that average case cost estimates for FY 2020 and FY 2021 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.  An unspecified misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor.

Judicial Council

 

 

Public Defender Program

Has contract with State to provide services.

Has contract with State to provide services.

Contract Attorney – Felony

$825/Case

$825/Case

Contract Attorney – Misdemeanor

$300/Case

$300/Case

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%).

Department of Corrections

 

 

FY 2018 Average Cost of Incarcerating an Individual

$40,615

$40,615

FY 2018 Annual Marginal Cost of a General Population Inmate

$4,620

$4,620

FY 2018 Average Cost of Supervising an Individual on Parole/Probation

$571

$571

NH Association of Counties

 

 

County Prosecution Costs

Indeterminable

Indeterminable

Estimated Average Daily Cost of Incarcerating an Individual

$105 to $120

$105 to $120

 

The Department of Safety states the bill's fiscal impact will be under $10,000. Any impact would be related to the expanded scope of current protective order procedures already in place for domestic violence protective orders.

 

The Department of Justice states the bill will have no fiscal impact as the offenses contemplated by the bill would typically be prosecuted by county prosecutors.  Any appeals from convictions would be handled by the Department, but could be done within its existing budget.

 

AGENCIES CONTACTED:

Departments of Corrections, Justice, Safety, and Health & Human Services, Judicial Branch, Judicial Council, and New Hampshire Association of Counties

 

Docket

Date Status
Jan. 3, 2019 Introduced 01/03/2019 and referred to Health, Human Services and Elderly Affairs HJ 3 P. 26
Jan. 30, 2019 Public Hearing: 01/30/2019 02:00 pm LOB 205
Feb. 5, 2019 Division II Subcommittee Work Session: 02/05/2019 10:00 am LOB 205
Feb. 5, 2019 ==RECESSED== Executive Session: 02/05/2019 01:00 pm LOB 205
Feb. 12, 2019 Division II Subcommittee Work Session: 02/12/2019 10:00 am LOB 205
Feb. 12, 2019 ==CONTINUED== Executive Session: 02/12/2019 01:00 pm LOB 205
Feb. 27, 2019 Committee Report: Ought to Pass with Amendment # 2019-0395h for 02/27/2019 (Vote 22-0; RC) HC 13 P. 20
Committee Report: Ought to Pass with Amendment # 2019-0395h (Vote 22-0; RC)
Feb. 27, 2019 Amendment # 2019-0395h: AA VV 02/27/2019 HJ 6 P. 85
Feb. 27, 2019 Ought to Pass with Amendment 2019-0395h: MA RC 208-132 02/27/2019 HJ 6 P. 85
Feb. 27, 2019 Referred to Criminal Justice and Public Safety 02/27/2019 HJ 6 P. 91
March 26, 2019 ==ROOM CHANGE== Public Hearing: 03/26/2019 10:00 am LOB 206-208
March 27, 2019 Executive Session: 03/27/2019 10:00 am LOB 204
April 4, 2019 Majority Committee Report: Ought to Pass for 04/04/2019 (Vote 12-8; RC) HC 18 P. 4
Majority Committee Report: Ought to Pass (Vote 12-8; RC)
Minority Committee Report: Inexpedient to Legislate
April 4, 2019 Lay on Table (Rep. Welch): MF DV 164-211 04/04/2019
April 4, 2019 Ought to Pass: MA RC 219-156 04/04/2019
April 11, 2019 Introduced 04/11/2019 and Referred to Judiciary; SJ 13
May 7, 2019 Hearing: 05/07/2019, Room 100, SH, 09:45 am; SC 21
May 23, 2019 Committee Report: Ought to Pass with Amendment # 2019-1968s, 05/23/2019; SC 23

Action Dates

Date Body Type
Jan. 30, 2019 House Hearing
Feb. 5, 2019 House Exec Session
Feb. 12, 2019 House Exec Session
House Floor Vote
Feb. 27, 2019 House Floor Vote
March 26, 2019 House Hearing
March 27, 2019 House Exec Session
April 4, 2019 House Floor Vote
May 7, 2019 Senate Hearing
May 23, 2019 Senate Floor Vote

Bill Text Revisions

HB696 Revision: 4975 Date: Jan. 17, 2019, 2:42 p.m.
HB696 Revision: 5400 Date: March 5, 2019, 3:41 p.m.