Senator Wayne A. Harper proposes the following substitute bill:


1     
CHILD ABUSE AND ENDANGERMENT AMENDMENTS

2     
2020 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Christine F. Watkins

5     
Senate Sponsor: Wayne A. Harper

6     

7     LONG TITLE
8     General Description:
9          This bill modifies provisions relating to child abuse and neglect and endangerment of a
10     child or vulnerable adult.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines terms;
14          ▸     for the offense of endangerment of a child or vulnerable adult:
15               •     modifies the circumstances under which an individual may be found guilty of
16     the offense; and
17               •     clarifies the circumstances under which an affirmative defense is applicable;
18          ▸     modifies provisions relating to a finding of abuse or neglect and determining the
19     best interests of a child in a child welfare case based on the parent's or guardian's
20     use of cannabis; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:
28          76-5-112.5, as last amended by Laws of Utah 2011, Chapter 320
29          78A-6-115, as last amended by Laws of Utah 2019, First Special Session, Chapter 5
30     

31     Be it enacted by the Legislature of the state of Utah:
32          Section 1. Section 76-5-112.5 is amended to read:
33          76-5-112.5. Endangerment of a child or vulnerable adult.
34          (1) As used in this section:
35          (a) (i) "Chemical substance" means:
36          (A) a substance intended to be used as a precursor in the manufacture of a controlled
37     substance;
38          (B) a substance intended to be used in the manufacture of a controlled substance; or
39          (C) any fumes or by-product resulting from the manufacture of a controlled substance.
40          (ii) Intent under this Subsection (1)(a) may be demonstrated by:
41          (A) the use, quantity, or manner of storage of the substance; or
42          (B) the proximity of the substance to other precursors or to manufacturing equipment.
43          (b) "Child" means [a human being] an individual who is under 18 years of age.
44          (c) "Controlled substance" [is as] means the same as that term is defined in Section
45     58-37-2.
46          (d) "Drug paraphernalia" [is as] means the same as that term is defined in Section
47     58-37a-3.
48          (e) "Exposed to" means that the child or vulnerable adult:
49          (i) is able to access [or view] an unlawfully possessed:
50          (A) controlled substance; or
51          (B) chemical substance;
52          (ii) has the reasonable capacity to access drug paraphernalia; or
53          (iii) is able to smell an odor produced during, or as a result of, the manufacture or
54     production of a controlled substance.
55          (f) "Prescription" [is as] means the same as that term is defined in Section 58-37-2.
56          (g) "Vulnerable adult" [is as] means the same as that term is defined in Subsection
57     76-5-111(1).
58          (2) Unless a greater penalty is otherwise provided by law:
59          (a) except as provided in [Subsection] Subsections (2)(b) [or], (c), [a person], and (3),
60     an individual is guilty of a felony of the third degree if the [person] individual knowingly or
61     intentionally causes or permits a child or a vulnerable adult to be exposed to, inhale, ingest, or
62     have contact with a controlled substance, chemical substance, or drug paraphernalia;
63          (b) except as provided in Subsection (2)(c) and (3), [a person] an individual is guilty of
64     a felony of the second degree, if:
65          (i) the [person] individual engages in the conduct described in Subsection (2)(a); and
66          (ii) as a result of the conduct described in Subsection (2)(a)[, a], the child or [a] the
67     vulnerable adult suffers bodily injury, substantial bodily injury, or serious bodily injury; or
68          (c) [a person] an individual is guilty of a felony of the first degree, if:
69          (i) the [person] individual engages in the conduct described in Subsection (2)(a); and
70          (ii) as a result of the conduct described in Subsection (2)(a)[, a], the child or [a] the
71     vulnerable adult dies.
72          (3) Notwithstanding Subsection (2), a child may not be subjected to delinquency
73     proceedings for a violation of Subsection (2) unless:
74          (a) the child is 15 years old or older; and
75          (b) the other child who is exposed to or inhales, ingests, or has contact with the
76     controlled substance, chemical substance, or drug paraphernalia, is under 12 years old.
77          [(3)] (4) It is an affirmative defense to a violation of this section that the controlled
78     substance:
79          (a) was obtained by lawful prescription or in accordance with Title 26, Chapter 61a,
80     Utah Medical Cannabis Act; and
81          (b) is used or possessed by the [person] individual to whom [it] the controlled
82     substance was lawfully prescribed or recommended to under Title 26, Chapter 61a, Utah
83     Medical Cannabis Act.
84          (4) The penalties described in this section are separate from, and in addition to, the
85     penalties and enhancements described in Title 58, Occupations and Professions.
86          Section 2. Section 78A-6-115 is amended to read:
87          78A-6-115. Hearings -- Record -- County attorney or district attorney
88     responsibilities -- Attorney general responsibilities -- Disclosure -- Admissibility of
89     evidence -- Medical cannabis.
90          (1) (a) A verbatim record of the proceedings shall be taken in all cases that might result
91     in deprivation of custody as defined in this chapter. In all other cases a verbatim record shall
92     also be made unless dispensed with by the court.
93          (b) (i) For purposes of this Subsection (1)(b):
94          (A) "Record of a proceeding" does not include documentary materials of any type
95     submitted to the court as part of the proceeding, including items submitted under Subsection
96     (4)(a).
97          (B) "Subjects of the record" includes the child's guardian ad litem, the child's legal
98     guardian, the Division of Child and Family Services, and any other party to the proceeding.
99          [(i)] (ii) Notwithstanding any other provision, including Title 63G, Chapter 2,
100     Government Records Access and Management Act, the court shall release a record of a
101     proceeding made under Subsection (1)(a) [shall be released by the court] to any person upon a
102     finding on the record for good cause.
103          [(ii)] (iii) Following a petition for a record of a proceeding made under Subsection
104     (1)(a), the court shall:
105          (A) provide notice to all subjects of the record that a request for release of the record
106     has been made; and
107          (B) allow sufficient time for the subjects of the record to respond before making a
108     finding on the petition.
109          [(iii)] (iv) A record of a proceeding may not be released under this Subsection (1)(b) if
110     the court's jurisdiction over the subjects of the proceeding ended more than 12 months before
111     the day on which the request is made.
112          [(iv) For purposes of this Subsection (1)(b):]
113          [(A) "record of a proceeding" does not include documentary materials of any type
114     submitted to the court as part of the proceeding, including items submitted under Subsection
115     (4)(a); and]
116          [(B) "subjects of the record" includes the child's guardian ad litem, the child's legal
117     guardian, the Division of Child and Family Services, and any other party to the proceeding.]
118          (2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
119     prosecution district, the district attorney shall represent the state in any proceeding in a minor's
120     case.
121          (b) Subject to the attorney general's prosecutorial discretion in civil enforcement
122     actions, the attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child and
123     Family Services, and this chapter, relating to:
124          (i) protection or custody of an abused, neglected, or dependent child; and
125          (ii) petitions for termination of parental rights.
126          (c) The attorney general shall represent the Division of Child and Family Services in
127     actions involving a minor who is not adjudicated as abused or neglected, but who is receiving
128     in-home family services under Section 78A-6-117.5. Nothing in this Subsection (2)(c) may be
129     construed to affect the responsibility of the county attorney or district attorney to represent the
130     state in those matters, in accordance with Subsection (2)(a).
131          (3) The board may adopt special rules of procedure to govern proceedings involving
132     violations of traffic laws or ordinances, wildlife laws, and boating laws. However, proceedings
133     involving offenses under Section 78A-6-606 are governed by that section regarding suspension
134     of driving privileges.
135          (4) (a) For the purposes of determining proper disposition of the minor in dispositional
136     hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and
137     in hearings upon petitions for termination of parental rights, written reports and other material
138     relating to the minor's mental, physical, and social history and condition may be received in
139     evidence and may be considered by the court along with other evidence. The court may require
140     that the [person] individual who wrote the report or prepared the material appear as a witness if
141     the [person] individual is reasonably available.
142          (b) For the purpose of determining proper disposition of a minor alleged to be or
143     adjudicated as abused, neglected, or dependent, dispositional reports prepared by the division
144     under Section 78A-6-315 may be received in evidence and may be considered by the court
145     along with other evidence. The court may require any [person] individual who participated in
146     preparing the dispositional report to appear as a witness, if the [person] individual is reasonably
147     available.
148          (5) (a) In an abuse, neglect, or dependency proceeding occurring after the
149     commencement of a shelter hearing under Section 78A-6-306 or the filing of a petition under
150     Section 78A-6-304, each party to the proceeding shall provide in writing to the other parties or
151     their counsel any information which the party:
152          (i) plans to report to the court at the proceeding; or
153          (ii) could reasonably expect would be requested of the party by the court at the
154     proceeding.
155          (b) The disclosure required under Subsection (5)(a) shall be made:
156          (i) for dispositional hearings under Sections 78A-6-311 and 78A-6-312, no less than
157     five days before the proceeding;
158          (ii) for proceedings under Chapter 6, Part 5, Termination of Parental Rights Act, in
159     accordance with Utah Rules of Civil Procedure; and
160          (iii) for all other proceedings, no less than five days before the proceeding.
161          (c) If a party to a proceeding obtains information after the deadline in Subsection
162     (5)(b), the information is exempt from the disclosure required under Subsection (5)(a) if the
163     party certifies to the court that the information was obtained after the deadline.
164          (d) Subsection (5)(a) does not apply to:
165          (i) pretrial hearings; and
166          (ii) the frequent, periodic review hearings held in a dependency drug court case to
167     assess and promote the parent's progress in substance use disorder treatment.
168          (6) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
169     may, in [its] the court's discretion, consider evidence of statements made by a child under eight
170     years of age to [a person] an individual in a trust relationship.
171          (7) (a) As used in this Subsection (7):
172          (i) "Cannabis" means the same as that term is defined in Section 26-61a-102.
173          [(i)] (ii) "Cannabis product" means the same as that term is defined in Section
174     26-61a-102.
175          (iii) (A) "Chronic" means repeated or patterned.
176          (B) "Chronic" does not mean an isolated incident.
177          [(ii)] (iv) "Dosing parameters" means the same as that term is defined in Section
178     26-61a-102.
179          [(iii)] (v) "Medical cannabis" means the same as that term is defined in Section
180     26-61a-102.
181          [(iv)] (vi) "Medical cannabis cardholder" means the same as that term is defined in
182     Section 26-61a-102.
183          [(v)] (vii) "Qualified medical provider" means the same as that term is defined in
184     Section 26-61a-102.
185          (b) In any child welfare proceeding in which the court makes a finding, determination,
186     or otherwise considers an individual's possession or use of medical cannabis, a cannabis
187     product, or a medical cannabis device, the court may not consider or treat the individual's
188     possession or use any differently than the lawful possession or use of any prescribed controlled
189     substance if the individual's use or possession complies with:
190          (i) Title 4, Chapter 41a, Cannabis Production Establishments;
191          (ii) the individual's possession or use complies with Subsection 58-37-3.7(2) or (3); or
192          (iii) (A) the individual's possession or use complies with Title 26, Chapter 61a, Utah
193     Medical Cannabis Act; and
194          (B) the individual reasonably complies with the dosing parameters determined by the
195     individual's qualified medical provider or through a consultation described in Subsection
196     26-61a-502(4) or (5).
197          (c) In a child welfare proceeding, a parent's or guardian's use of cannabis or a cannabis
198     product is not abuse or neglect of a child under Section 78A-6-105 unless there is evidence
199     showing that:
200          (i) the child is harmed because of the child's inhalation or ingestion of cannabis, or
201     because of cannabis being introduced to the child's body in another manner; or
202          (ii) the child is at an unreasonable risk of harm because of chronic inhalation or
203     ingestion of cannabis or chronic introduction of cannabis to the child's body in another manner.
204          [(c)] (d) [A] Unless there is harm or an unreasonable risk of harm to the child as
205     described in Subsection (7)(c), in a child welfare proceeding a parent's or guardian's use of
206     medical cannabis or a cannabis product is not [abuse or neglect of a child under Section
207     78A-6-105, nor is it] contrary to the best interests of a child[,] if:
208          (i) [(A)] for a medical cannabis cardholder after January 1, 2021, the parent's or
209     guardian's possession or use complies with Title 26, Chapter 61a, Utah Medical Cannabis Act,
210     and there is no evidence that the parent's or guardian's use of medical cannabis unreasonably
211     deviates from the dosing parameters determined by the parent's or guardian's qualified medical
212     provider or through a consultation described in Subsection 26-61a-502(4) or (5); or
213          [(B)] (ii) before January 1, 2021, the parent's or guardian's possession or use complies
214     with Subsection 58-37-3.7(2) or (3)[; and].
215          [(ii) (A) there is no evidence showing that the child has inhaled, ingested, or otherwise
216     had cannabis introduced to the child's body; or]
217          [(B) there is no evidence showing a nexus between the parent's or guardian's use of
218     medical cannabis or a cannabis product and behavior that would separately constitute abuse or
219     neglect of the child.]
220          (e) Subsection (7)(c) does not prohibit a finding of abuse or neglect of a child under
221     Section 78A-6-105, and Subsection (7)(d) does not prohibit a finding that a parent's or
222     guardian's use of medical cannabis or a cannabis product is contrary to the best interests of a
223     child, if there is evidence showing a nexus between the parent's or guardian's use of cannabis or
224     a cannabis product and behavior that would separately constitute abuse or neglect of the child.