AN
ACT Relating to criminal mistreatment; 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.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
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.
