S9 “Child Protection Bill”

3/18/2015

Latest version: http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/S-0009/S-0009%20As%20Passed%20by%20the%20Senate%20Official.pdf

Status: PASSED the senate – in Joint Hearing between House Human Services and House Judiciary Committees. The bill is in the jursidiction of the House Committee on Human Services, but is expected to also be heard by the House Judiciary Committee.

ACLU-VT comments on this bill:

(1)  Alan Gilbert: 2/23/2015

The lengths to which the state may require average citizens to become involved in complex child protection issues has emerged as a crucial question as the legislature struggles to respond to last summer’s tragic string of child deaths.

Senate Judiciary Committee hearings on S. 9 have been well-attended, even sometimes by parents with children.
A bill (S. 9, on page 66 of the Senate Calendar) making its way through the Senate creates a new felony crime, “failure to protect,” that compels anyone over 16 — regardless of experience, gender, or training — who at any point has custody or care of a child to act to prevent harm from being done to the child “if the person knows, or reasonably should have known, that the child is in danger….” Failure to act could result in 10 years in jail or a $20,000 fine, or both.

The law does not specify what action must be taken (report to the Department of Children and Families? If a teen babysitter, report to one’s parents? Could DCF workers themselves be subject to the prison sentence if, in their judgment, the child wasn’t at risk but turned out to be?).

The original bill language was revised to allow special consideration for a person who has “a reasonable fear that he or she would suffer serious bodily injury … as a result of acting to prevent harm to the child” or for a person who made “a reasonable decision to not seek medical care” for the child. Yet the “failure to protect” provision still casts a very broad net.

The net is so broad, in fact, it’s likely that only in the rarest of cases would charges under this provision be brought. Instead, the penalty would probably be used as a cudgel. Mention of the crime and its penalty might cause fear that leads the accused to essentially incriminate him or herself.

The fact the law’s chief attribute seems to be its ability to intimidate creates problems, problems that themselves could cause grave harm to someone who has, him or herself, not done harm, but has instead — in the state’s eyes — not fulfilled deputized responsibilities.

The result of this is that people will be made to justify the actions they did — or did not — take. People will be made to prove their innocence, which turns a central tenant of our criminal justice system on its head. What the provision actually means, as evidenced by testimony to the committee, requires knowledge of this particular statute, other child protection statutes, and Supreme Court decisions. That’s a lot to ask of an average citizen.

There is a sad irony to this approach. In fashioning a provision to prevent crimes, a new crime is being created. And a further irony: If this provision were ever aggressively utilized by prosecutors, and maximum penalties imposed, we’d be throwing more people in jail and creating a half-million-dollar expense for the state upon every conviction — the opposite of what the state has been trying to do in regards to incarceration rates and corrections expenses.

S. 9 has many other parts than just the failure-to-act provision. The version passed last week by the Senate Judiciary Committee and on the Senate calendar is 49 pages long. A long road is still ahead: presentation to the full Senate, debate there, and if passed the same review in the House. Depending on the form in which the bill emerges, it could be one of the most significant pieces of legislation this session.

(2) Alan Gilbert: 1/18/2015

Following a series of deaths this summer of children in state custody or receiving state services, a special legislative study committee was convened to study how to better protect children. A lengthy bill, S. 9, was unveiled this week. It would make some major changes around caring for children, including a new felony crime called “failure to act.” Anyone having the custody, care, or charge of a child could be jailed for up to 10 years for failing to prevent harm to a child resulting from a number of circumstances. The persons who could fall under this obligation appear, for example, to include teachers and babysitters, and the potential harms include illnesses a child might contract or someone having any quantity of regulated drugs without a doctor’s prescription. The breadth of the bill alone (it’s 43 pages long) guarantees a lengthy review process.

Senate action: This bill had been amended and passed out of the Senate Judiciary Committee to Senate Appropriations  and flew through appropriations. Second reading in the senate was on 1/25/2015.  Third reading and vote Thursday.

Sen. Sears made a floor statement that nothing in the bill should be construed as aimed at those who don’t vaccinate. (make sure you thank him for responding to your concerns).

Remaining Concerns: 1) Section 6, Special Investigative Units (SIU’s) may investigate incidences of physical pain, illness, or any impairment of physical condition as per 13 V.S.A. § 1021. 2) Section 10 says that DCF may report instances of physical pain, illness, or any impairment of physical condition per 13 V.S.A. § 1021 to law enforcement for investigation. So, if your child gets the flu a special police task force can still knock on your door, talk to your neighbors about it, etc…. 3) the crime itself create a situation where those accused are guilty until proven innocent… see ACLU concerns below.

RELATED NEWS

VT Press Bureau, 2/23 … http://www.vermontpressbureau.com/consideration-of-child-protection-law-delayed-a-day/?utm_campaign=Neal%20Goswami&utm_medium=twitter&utm_source=twitter

NPR, 2/19… http://www.npr.org/blogs/health/2015/02/19/386040745/why-a-court-once-ordered-kids-vaccinated-against-their-parents-will

RELATED READING:

Read S9 Constitutional Issues.

Read S9 ACLU Testimony.

Read VCVC Testimony asking for amendments to S9.

VCVC TESTIMONY:

February 6, 2015

Senator Claire Ayer
Senator Dick Sears
Representative Ann Pugh
Representative Maxine Jo Grad

Testimony ~ S.9

Dear Honorable, Elected Lawmakers,

The Vermont Coalition for Vaccine Choice (VCVC) is a volunteer organization dedicated to preserving health choice and informed consent for parents and all Vermonters. We are active community members and a vital part of the Vermont economy: the young families that are the future of Vermont, as well as our grandparents, teachers, nurses, healthcare providers and others.

I appreciate being invited to give testimony today on S9. I would like to begin by saying that what seems to be missing from all discussion on what is best for Vermont’s children, is the voice of Vermont’s parents and families.

Parents nearly always have the best interests of their children at heart. At least this must be the assumption until proven otherwise. The interest of a parent in the care and custody of her (his) child is a fundamental human right. Freedom of personal choice in matters of marriage and family life are protected by the Due Process Clause of the 14th Amendment of the U.S. Constitution, and the interests of parents in the custody, care and control of our children may be the oldest of the fundamental liberty interests that our federal constitution protects.

See: “Constitutional Issues” document

Beyond this broad concern, we also have specific concerns on S9’s sections 2, 3, 6 and 11 as follows:

Sec. 2:

The ACLU, Defender General, DCF personnel, Vermont Parent Representation Center, and the Vermont Network Against Domestic and Sexual Violence have already testified on the serious issues with this provision in its breadth and scope.

We are specifically concerned about the theme of guilty until proven innocent, which does indeed turn our criminal justice system on its head.

We are also specifically concerned about Sec. 2’s proposed definitions of “harm to a child” include anything listed in 13 V.S.A. § 1021. Section 1021. We have major concerns with the concept that “physical pain, illness or any impairment of physical condition” may be considered a crime. What of those who exercise their legal right to philosophical or religious vaccine exemption? Life is not sterile, and illness is indeed a part of childhood.

Beyond vaccination, you should know that parents are facing increased pressure to give drugs to their children but are not always keen to do so (examples: steroid for babies, statin drugs, psychotropic drugs and most recently in the news, chemotherapy) due to potentially devastating side effects.

We are concerned that the proposed law may inadvertently affect parents who choose to decline blanket pharmaceutical treatment guidelines, or simply disagree with the advice of a doctor or attending hospital physician. Parents should have authority over these decisions without getting caught in a web of medical politics.

In this section we ask that you:

  • Reconsider this crime in its entirety.
  • Remove “physical pain, illness or any impairment of physical condition” from the definitions.
  • Provide for language to protect those who legally exempt their child(ren) from vaccination(s).
  • Protect the ability of parents to seek second opinions.

Sec. 3

Section 3 declares that states attorneys (and many others) “shall investigate” serious bodily injury “as found in 13 V.S.A. § 1021” and “may investigate” bodily injury “as found in 13 V.S.A. § 1021.”

What is the intent of such broad investigations, including funding by way of grants?

These SIU’s appear, in S9, to be given sweeping authority to investigate anyone who “causes”, or “should have known” about any physical pain, illness or any impairment of physical condition that the child may have suffered per section 1021.

What is the purpose? Shall any parent, teacher, caregiver, coach or other member of the community who strays from expectations be subject to questioning? Who gets special status? Are there penalties for false reports?

We would like to ask in this section that you:

  • Consider adding a penalty for false reports so that families broken by allegation have some redress.
  • Reconsider the funding mechanism of the SIU’s because private money, however philanthropic in origin, may influence public policy in ways that do not represent the will of the people or the true interests of Vermont’s families and citizens.
  • Remove “physical pain, illness or any impairment of physical condition” from the investigations list.

Sec. 6

Section 6 amends 33 VSA Sec. 4912 so that definitions of harm again are spelled out in 13 VSA Sec. 1021. Here, the provision that failure to provide “adequate” or “specified” medical treatment is very troubling and provides only for religious exemptions.

We would like to ask in this section that you:

  • Add specific language to allow for parents who seek second opinions.
  • Add language that protects a parent’s right to determine preventative and other medical treatments for their minor children.
  • Clarify the legislative intent so that it is clear that the State of Vermont does not intend to pursue parents for lack of immunizations or other so-called “preventative” medical in its definitions of abuse or neglect, since parents do have the legal right to exempt their child from vaccination mandates, for religious or philosophical reasons, and to pursue non-pharmaceutical modalities of care.

Sec. 11

Finally, in this section we are troubled by the redesign of the family hierarchy in which, as proposed, “best interests of the child,” supersedes family reunification efforts.

We all share concern for the health, wellbeing and safety of children. But we want to see our families intact, and we want support from the state.

In this section, we ask that you:

  • Restore the hierarchy which will best protect and preserve our family units except for the most dire of circumstances.

Thank you very much for your time and consideration.

Jennifer R. Stella

(802) 917 3230

As follow up, the committee asked about proposed language changes, and was provided with this information by email on 2/6/2015:
  • Connecticut child protection law clearly states that, “Failure to provide the child with immunizations or routine well child care in and of itself does not constitute medical neglect.”
  • Virginia has similar language, which goes a bit further and states that, “CPS intervenes in medical neglect cases only in situations of imminent danger to the child’s health and safety. Immunizations and well-baby examinations are considered preventative medicine, not treatment. The decision to obtain preventative health care is a parental decision. Failure to provide immunizations or preventative medical care does not constitute abuse or neglect.”
  • And finally, examples of false report penalties can be found here: www.childwelfare.gov/pubPDFs/report.pdf