2382-S AMS JUD S4412.2
SHB 2382 - S COMM AMD
By Committee on Judiciary
ADOPTED 03/04/02
Strike everything after the enacting clause and insert the following:
"NEW SECTION. Sec. 1. The legislature recognizes that responses by the department of social and health services and public safety agencies have varied between jurisdictions when allegations of withholding of the basic necessities of life are made. The legislature intends to improve the capacity of the department of social and health services and public safety agencies to respond to situations where the basic necessities of life are withheld by allowing an earlier intervention in such cases. The legislature finds that improved coordination between the department of social and health services and public safety agencies at an earlier point will lead to better treatment of children and families and will reduce the likelihood of serious harm.
NEW SECTION. Sec. 2. A new section is added to chapter 9A.42 RCW to read as follows:
(1) A person is guilty of the crime of criminal mistreatment in the fourth degree if the person is the parent of a child, is a person entrusted with the physical custody of a child or other dependent person, or is a person employed to provide to the child or dependent person the basic necessities of life, and either:
(a) With criminal negligence, creates an imminent and substantial risk of bodily injury to a child or dependent person by withholding any of the basic necessities of life; or
(b) With criminal negligence, causes bodily injury or extreme emotional distress manifested by more than transient physical symptoms to a child or dependent person by withholding the basic necessities of life.
(2) Criminal mistreatment in the fourth degree is a misdemeanor.
Sec. 3. RCW 9A.42.040 and 2000 c 76 s 2 are each amended to read as follows:
RCW
9A.42.020, 9A.42.030, ((and)) 9A.42.035, and section 2 of this act
do not apply to decisions to withdraw life support systems made in accordance
with chapter 7.70 or 70.122 RCW by the dependent person, his or her legal
surrogate, or others with a legal duty to care for the dependent person.
Sec. 4. RCW 9A.42.045 and 2000 c 76 s 3 are each amended to read as follows:
RCW
9A.42.020, 9A.42.030, ((and)) 9A.42.035, and section 2 of this act
do not apply when a terminally ill or permanently unconscious person or his or
her legal surrogate, as set forth in chapter 7.70 RCW, requests, and the person
receives, palliative care from a licensed home health agency, hospice agency,
nursing home, or hospital providing care under the medical direction of a
physician. As used in this section, the terms "terminally ill" and
"permanently unconscious" have the same meaning as "terminal
condition" and "permanent unconscious condition" in chapter
70.122 RCW.
NEW SECTION. Sec. 5. A new section is added to chapter 9A.42 RCW to read as follows:
(1) When a law enforcement officer arrests a person for criminal mistreatment of a child, the officer must notify child protective services.
(2) When a law enforcement officer arrests a person for criminal mistreatment of a dependent person other than a child, the officer must notify adult protective services.
Sec. 6. RCW 10.05.010 and 1998 c 208 s 1 are each amended to read as follows:
(1) In a court of limited jurisdiction a person charged with a misdemeanor or gross misdemeanor may petition the court to be considered for a deferred prosecution program. The petition shall be filed with the court at least seven days before the date set for trial but, upon a written motion and affidavit establishing good cause for the delay and failure to comply with this section, the court may waive this requirement subject to the defendant's reimbursement to the court of the witness fees and expenses due for subpoenaed witnesses who have appeared on the date set for trial.
(2) A person charged with a traffic infraction, misdemeanor, or gross misdemeanor under Title 46 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once. Separate offenses committed more than seven days apart may not be consolidated in a single program.
(3) A person charged with a misdemeanor or a gross misdemeanor under chapter 9A.42 RCW shall not be eligible for a deferred prosecution program unless the court makes specific findings pursuant to RCW 10.05.020. Such person shall not be eligible for a deferred prosecution program more than once.
Sec. 7. RCW 10.05.020 and 1996 c 24 s 1 are each amended to read as follows:
(1) Except as provided in subsection (2) of this section, the petitioner shall allege under oath in the petition that the wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the probability of future reoccurrence is great, along with a statement that the person agrees to pay the cost of a diagnosis and treatment of the alleged problem or problems if financially able to do so. The petition shall also contain a case history and written assessment prepared by an approved alcoholism treatment program as designated in chapter 70.96A RCW if the petition alleges alcoholism, an approved drug program as designated in chapter 71.24 RCW if the petition alleges drug addiction, or by an approved mental health center if the petition alleges a mental problem.
(2) In the case of a petitioner charged with a misdemeanor or gross misdemeanor under chapter 9A.42 RCW, the petitioner shall allege under oath in the petition that the petitioner is the natural or adoptive parent of the alleged victim; that the wrongful conduct charged is the result of parenting problems for which the petitioner is in need of services; that the petitioner is in need of child welfare services under chapter 74.13 RCW to improve his or her parenting skills in order to better provide his or her child or children with the basic necessities of life; that the petitioner wants to correct his or her conduct to reduce the likelihood of harm to his or her minor children; that in the absence of child welfare services the petitioner may be unable to reduce the likelihood of harm to his or her minor children; and that the petitioner has cooperated with the department of social and health services to develop a plan to receive appropriate child welfare services; along with a statement that the person agrees to pay the cost of the services if he or she is financially able to do so. The petition shall also contain a case history and a written service plan from the department of social and health services.
(3) Before entry of an order deferring prosecution, a petitioner shall be advised of his or her rights as an accused and execute, as a condition of receiving treatment, a statement that contains: (a) An acknowledgement of his or her rights; (b) an acknowledgement and waiver of the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to present evidence in his or her defense, and the right to a jury trial; (c) a stipulation to the admissibility and sufficiency of the facts contained in the written police report; and (d) an acknowledgement that the statement will be entered and used to support a finding of guilty if the court finds cause to revoke the order granting deferred prosecution. The petitioner shall also be advised that he or she may, if he or she proceeds to trial and is found guilty, be allowed to seek suspension of some or all of the fines and incarceration that may be ordered upon the condition that he or she seek treatment and, further, that he or she may seek treatment from public and private agencies at any time without regard to whether or not he or she is found guilty of the offense charged. He or she shall also be advised that the court will not accept a petition for deferred prosecution from a person who sincerely believes that he or she is innocent of the charges or sincerely believes that he or she does not, in fact, suffer from alcoholism, drug addiction, or mental problems, or in the case of a petitioner charged under chapter 9A.42 RCW, sincerely believes that he or she does not need child welfare services.
(((3)))
(4) Before entering an order deferring prosecution, the court shall make
specific findings that: (a) The petitioner has stipulated to the admissibility
and sufficiency of the facts as contained in the written police report; (b) the
petitioner has acknowledged the admissibility of the stipulated facts in any
criminal hearing on the underlying offense or offenses held subsequent to revocation
of the order granting deferred prosecution; (c) the petitioner has acknowledged
and waived the right to testify, the right to a speedy trial, the right to call
witnesses to testify, the right to present evidence in his or her defense, and
the right to a jury trial; and (d) the petitioner's statements were made
knowingly and voluntarily. Such findings shall be included in the order
granting deferred prosecution.
Sec. 8. RCW 10.05.030 and 1999 c 143 s 42 are each amended to read as follows:
The
arraigning judge upon consideration of the petition and with the concurrence of
the prosecuting attorney may continue the arraignment and refer such person for
a diagnostic investigation and evaluation to an approved alcoholism treatment
program as designated in chapter 70.96A RCW, if the petition alleges an alcohol
problem, an approved drug treatment center as designated in chapter 71.24 RCW,
if the petition alleges a drug problem, ((or)) to an approved mental
health center, if the petition alleges a mental problem, or the department
of social and health services if the petition is brought under RCW 10.05.020(2).
Sec. 9. RCW 10.05.040 and 1985 c 352 s 7 are each amended to read as follows:
The facility to which such person is referred, or the department of social and health services if the petition is brought under RCW 10.05.020(2), shall conduct an investigation and examination to determine:
(1) Whether the person suffers from the problem described;
(2) Whether the problem is such that if not treated, or if no child welfare services are provided, there is a probability that similar misconduct will occur in the future;
(3) Whether extensive and long term treatment is required;
(4)
Whether effective treatment or child welfare services for the person's
problem ((is)) are available; and
(5) Whether the person is amenable to treatment or willing to cooperate with child welfare services.
Sec. 10. RCW 10.05.050 and 1985 c 352 s 8 are each amended to read as follows:
(1) The facility, or the department of social and health services if the petition is brought under RCW 10.05.020(2), shall make a written report to the court stating its findings and recommendations after the examination required by RCW 10.05.040. If its findings and recommendations support treatment or the implementation of a child welfare service plan, it shall also recommend a treatment or service plan setting out:
(((1)))
(a) The type;
(((2)))
(b) Nature;
(((3)))
(c) Length;
(((4)))
(d) A treatment or service time schedule; and
(((5)))
(e) Approximate cost of the treatment or child welfare services.
(2) In the case of a child welfare service plan, the plan shall be designed in a manner so that a parent who successfully completes the plan will not be likely to withhold the basic necessities of life from his or her child.
(3) The report with the treatment or service plan shall be filed with the court and a copy given to the petitioner and petitioner's counsel. A copy of the treatment or service plan shall be given to the prosecutor by petitioner's counsel at the request of the prosecutor. The evaluation facility, or the department of social and health services if the petition is brought under RCW 10.05.020(2), making the written report shall append to the report a commitment by the treatment facility or the department of social and health services that it will provide the treatment or child welfare services in accordance with this chapter. The facility or the service provider shall agree to provide the court with a statement every three months for the first year and every six months for the second year regarding (a) the petitioner's cooperation with the treatment or child welfare service plan proposed and (b) the petitioner's progress or failure in treatment or child welfare services. These statements shall be made as a declaration by the person who is personally responsible for providing the treatment or services.
Sec. 11. RCW 26.44.130 and 1988 c 190 s 4 are each amended to read as follows:
When a peace officer responds to a call alleging that a child has been subjected to sexual or physical abuse or criminal mistreatment and has probable cause to believe that a crime has been committed or responds to a call alleging that a temporary restraining order or preliminary injunction has been violated, the peace officer has the authority to arrest the person without a warrant pursuant to RCW 10.31.100.
NEW SECTION. Sec. 12. A new section is added to chapter 10.05 RCW to read as follows:
Child welfare services provided under chapter 74.13 RCW pursuant to a deferred prosecution ordered under RCW 10.05.060 may not be construed to prohibit the department from providing services or undertaking proceedings pursuant to chapter 13.34 or 26.44 RCW.
NEW SECTION. Sec. 13. A new section is added to chapter 74.13 RCW to read as follows:
The department or its contractors may provide child welfare services pursuant to a deferred prosecution plan ordered under chapter 10.05 RCW. Child welfare services provided under this chapter pursuant to a deferred prosecution order may not be construed to prohibit the department from providing services or undertaking proceedings pursuant to chapter 13.34 or 26.44 RCW.
Sec. 14. RCW 10.05.120 and 1998 c 208 s 3 are each amended to read as follows:
(1) Three years after receiving proof of successful completion of the two-year treatment program, but not before five years following entry of the order of deferred prosecution pursuant to a petition brought under RCW 10.05.020(1), the court shall dismiss the charges pending against the petitioner.
(2) When a deferred prosecution is ordered pursuant to a petition brought under RCW 10.05.020(2) and the court has received proof that the petitioner has successfully completed the child welfare service plan, or the plan has been terminated because the alleged victim has reached his or her majority and there are no other minor children in the home, the court shall dismiss the charges pending against the petitioner: PROVIDED, That in any case where the petitioner's parental rights have been terminated with regard to the alleged victim due to abuse or neglect that occurred during the pendency of the deferred prosecution, the termination shall be per se evidence that the petitioner did not successfully complete the child welfare service plan.
NEW SECTION. Sec. 15. (1) The department of social and health services, in consultation with the attorney general and organizations representing law enforcement agencies, shall prepare a plan for improved coordination of services to families when a member of the family is charged with criminal mistreatment under chapter 9A.42 RCW. The plan shall include revisions in the department's identification of the needs for services for the families following an arrest and filing of criminal mistreatment charges, delivery of such services, ways of enhancing cooperation with law enforcement agencies during and following the investigation and trial on such charges, improved identification of those incidents which may precede such charges and are indicators of a need for offering of services and possible improvements in the methods of response to such incidents, suggestions for ongoing efforts in reducing the number of criminal mistreatment charges through improved identification of incidents and trends that are markers of potentially serious family stress, and a review of the adequacy of current sentencing for violations of the criminal mistreatment statutes.
(2) The department of social and health services shall regularly consult with the legislature in the preparation of the plan. The plan shall be submitted to the governor and the legislature not later than December 1, 2002.
(3) This section expires December 31, 2002."
SHB 2382 - S COMM AMD
By Committee on Judiciary
ADOPTED 03/04/02
On page 1, line 1 of the title, after "mistreatment;" strike the remainder of the title and insert "amending RCW 9A.42.040, 9A.42.045, 10.05.010, 10.05.020, 10.05.030, 10.05.040, 10.05.050, 26.44.130, and 10.05.120; adding new sections to chapter 9A.42 RCW; adding a new section to chapter 10.05 RCW; adding a new section to chapter 74.13 RCW; creating new sections; prescribing penalties; and providing an expiration date."
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