[A]nyone who cares for but fails to prevent harm to a child could be charged with a felony and face up to 10 years in prison under a new crime created as part of a long-awaited child protection bill unveiled Wednesday.
The 43-page legislation proposes sweeping changes in the state’s child protection system, the product of a legislative committee that held hearings this summer across the state.
The committee, and the bill, are in response to two child deaths last year involving families who had contact with the Department for Children and Families.
The bill includes changes in many areas, including police investigations, adoptions, information sharing and the creation of a state children’s ombudsmen.
A joint hearing of four legislative committees — two from the Senate and two from the House — heard an overview of the bill Wednesday. Discussion focused on two sections, the new crime of failure to protect a child, and an expanded definition of harm to a child to include drug use by caregivers.
Defense attorneys and civil rights advocates had instant objections to those provisions, while others, who served on the summer study committee, said the measures are necessary.
The DCF deputy commissioner said expanding the definition of harm could increase social worker caseload, something with which the department already struggles. The public safety commissioner, after a first glance at the bill, said the new crime would likely be difficult to prosecute.
The person could be liable if he or she knows or “reasonably should have known” that the child is in danger of bodily injury, sex crimes or drug crimes, according to the bill.
Drug crimes include exposure to unlawful possession of a list of drugs, including narcotics and two or more ounces of marijuana.
The penalty for failure to protect a child would be up to 10 years in prison or a fine of up to $20,000.
The bill also expands the definition of harm to a child to include drug-related conduct such as exposure to the same list of drugs.
That could mean a greater workload for social workers, said Cindy Walcott, deputy commissioner of DCF. Walcott said she is still reviewing the bill and will have more input.
The new crime would have implications for all types of caregivers.
“No one would ever babysit again,” said Allen Gilbert, director of the American Civil Liberties Union of Vermont.
Sen. Joe Benning, R-Caledonia, a defense attorney had similar concerns. It is not the intended consequence but the unintended ones that should be thought about, he said.
“What immediately raised a red flag for me was the use or possession of illicit substances,” Benning said.
Possessing two ounces of marijuana could be grounds for a felony conviction and then used against a parent as part of an argument to remove children, he said.
There is also nothing about alcohol in the new crime nor in the definition of harm, Benning said.
The new crime is intended to penalize parents who, for example, have needles in the home where children could reach them, said Sears, chairman of the Senate Judiciary Committee and co-chairman of the summer study committee.
Sears said critics like Gilbert and Benning are going too far.
“Could a babysitter who knows that a child is in danger of having a leg broken or being sexually assaulted and does nothing to prevent this also be prosecuted? Yes. Will this discourage law-abiding babysitters from caring for children? Probably not,” the memo said.
Sears also rebuffed concerns about increasing social worker caseload by broadening the definition of harm.
“If there are kids who need protection and this system leads to protecting kids, what’s the problem?” he said.
The bill, S.9, is far from complete and is likely to evolve significantly during the session. It will start its journey through both houses in the Senate Judiciary and Health and Welfare Committees then cross over to House committees if the entire Senate passes it.
Another section of the bill would allow social workers to take a child into custody when he or she has reasonable grounds to believe the child is in immediate danger. Currently only police have that authority.
One main theme the summer committee noticed was geographical variation in services and practices related to child welfare. The bill attempts to streamline and standardize many of those practices.
“There is tremendous variation across the state as to what law enforcement does, as to what DCF does,” Martland told legislators, some of whom were learning about these child protection issues for the first time.
