Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 365 Third Substitute (2020GS)

Sponsor

Rep. Watkins, C.

Final action

Governor Signed 3/24/2020

Outcome

Became law — signed by Gov. Gary R. Herbert

Summary

What it does

• This bill:
• defines terms;
• for the offense of endangerment of a child or vulnerable adult:
• modifies the circumstances under which an individual may be found guilty of the offense; and
• clarifies the circumstances under which an affirmative defense is applicable;
• modifies provisions relating to a finding of abuse or neglect and determining the best interests of a child in a child welfare case based on the parent's or guardian's use of cannabis; and
• makes technical changes.

Every vote on this bill

Bill text

CHILD ABUSE AND ENDANGERMENT AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Christine F. Watkins
Senate Sponsor: 
Wayne A. Harper
LONG TITLE
General Description:
This bill modifies provisions relating to child abuse and neglect and endangerment of a
child or vulnerable adult.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ for the offense of endangerment of a child or vulnerable adult:
• modifies the circumstances under which an individual may be found guilty of
the offense; and
• clarifies the circumstances under which an affirmative defense is applicable;
▸ modifies provisions relating to a finding of abuse or neglect and determining the
best interests of a child in a child welfare case based on the parent's or guardian's
use of cannabis; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
76-5-112.5
, as last amended by Laws of Utah 2011, Chapter 320
78A-6-115
, as last amended by Laws of Utah 2019, First Special Session, Chapter 5
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
76-5-112.5
 is amended to read:
76-5-112.5.
Endangerment of a child or vulnerable adult.
(1) As used in this section:
(a) (i) "Chemical substance" means:
(A) a substance intended to be used as a precursor in the manufacture of a controlled
substance;
(B) a substance intended to be used in the manufacture of a controlled substance; or
(C) any fumes or by-product resulting from the manufacture of a controlled substance.
(ii) Intent under this Subsection (1)(a) may be demonstrated by:
(A) the use, quantity, or manner of storage of the substance; or
(B) the proximity of the substance to other precursors or to manufacturing equipment.
(b) "Child" means [
a human being
] 
an individual
 who is under 18 years of age.
(c) "Controlled substance" [
is as
] 
means the same as that term is
 defined in Section
58-37-2
.
(d) "Drug paraphernalia" [
is as
] 
means the same as that term is
 defined in Section
58-37a-3
.
(e) "Exposed to" means that the child or vulnerable adult:
(i) is able to access [
or view
] an unlawfully possessed:
(A) controlled substance; or
(B) chemical substance;
(ii) has the reasonable capacity to access drug paraphernalia; or
(iii) is able to smell an odor produced during, or as a result of, the manufacture or
production of a controlled substance.
(f) "Prescription" [
is as
] 
means the same as that term is
 defined in Section 
58-37-2
.
(g) "Vulnerable adult" [
is as
] 
means the same as that term is
 defined in Subsection
76-5-111
(1).
(2) Unless a greater penalty is otherwise provided by law:
(a) except as provided in [
Subsection
] 
Subsections
 (2)(b) [
or
]
,
 (c), [
a person
]
, and (3),
an individual
 is guilty of a felony of the third degree if the [
person
] 
individual
 knowingly or
intentionally causes or permits a child or a vulnerable adult to be exposed to, inhale, ingest, or
have contact with a controlled substance, chemical substance, or drug paraphernalia;
(b) except as provided in Subsection (2)(c) 
and (3)
, [
a person
] 
an individual
 is guilty of
a felony of the second degree, if:
(i) the [
person
] 
individual
 engages in the conduct described in Subsection (2)(a); and
(ii) as a result of the conduct described in Subsection (2)(a)[
, a
]
, the
 child or [
a
] 
the
vulnerable adult suffers bodily injury, substantial bodily injury, or serious bodily injury; or
(c) [
a person
] 
an individual
 is guilty of a felony of the first degree, if:
(i) the [
person
] 
individual
 engages in the conduct described in Subsection (2)(a); and
(ii) as a result of the conduct described in Subsection (2)(a)[
, a
]
, the
 child or [
a
] 
the
vulnerable adult dies.
(3) Notwithstanding Subsection (2), a child may not be subjected to delinquency
proceedings for a violation of Subsection (2) unless:
(a) the child is 15 years old or older; and
(b) the other child who is exposed to or inhales, ingests, or has contact with the
controlled substance, chemical substance, or drug paraphernalia, is under 12 years old.
[
(3)
] 
(4)
 It is an affirmative defense to a violation of this section that the controlled
substance:
(a) was obtained by lawful prescription 
or in accordance with Title 26, Chapter 61a,
Utah Medical Cannabis Act
; and
(b) is used or possessed by the [
person
] 
individual
 to whom [
it
] 
the controlled
substance
 was lawfully prescribed 
or recommended to under Title 26, Chapter 61a, Utah
Medical Cannabis Act
.
[
(4)
] 
(5)
 The penalties described in this section are separate from, and in addition to,
the penalties and enhancements described in Title 58, Occupations and Professions.
Section 2. Section 
78A-6-115
 is amended to read:
78A-6-115.
Hearings -- Record -- County attorney or district attorney
responsibilities -- Attorney general responsibilities -- Disclosure -- Admissibility of
evidence -- Cannabis.
(1) (a) A verbatim record of the proceedings shall be taken in all cases that might result
in deprivation of custody as defined in this chapter. In all other cases a verbatim record shall
also be made unless dispensed with by the court.
(b) 
(i) For purposes of this Subsection (1)(b):
(A) "Record of a proceeding" does not include documentary materials of any type
submitted to the court as part of the proceeding, including items submitted under Subsection
(4)(a).
(B) "Subjects of the record" includes the child's guardian ad litem, the child's legal
guardian, the Division of Child and Family Services, and any other party to the proceeding.
[
(i)
] 
(ii)
 Notwithstanding any other provision, including Title 63G, Chapter 2,
Government Records Access and Management Act, 
the court shall release
 a record of a
proceeding made under Subsection (1)(a) [
shall be released by the court
] to any person upon a
finding on the record for good cause.
[
(ii)
] 
(iii)
 Following a petition for a record of a proceeding made under Subsection
(1)(a), the court shall:
(A) provide notice to all subjects of the record that a request for release of the record
has been made; and
(B) allow sufficient time for the subjects of the record to respond before making a
finding on the petition.
[
(iii)
] 
(iv)
 A record of a proceeding may not be released under this Subsection (1)(b) if
the court's jurisdiction over the subjects of the proceeding ended more than 12 months before
the 
day on which the
 request 
is made
.
[
(iv) For purposes of this Subsection (1)(b):
]
[
(A) "record of a proceeding" does not include documentary materials of any type
submitted to the court as part of the proceeding, including items submitted under Subsection
(4)(a); and
]
[
(B) "subjects of the record" includes the child's guardian ad litem, the child's legal
guardian, the Division of Child and Family Services, and any other party to the proceeding.
]
(2) (a) Except as provided in Subsection (2)(b), the county attorney or, if within a
prosecution district, the district attorney shall represent the state in any proceeding in a minor's
case.
(b) Subject to the attorney general's prosecutorial discretion in civil enforcement
actions, the attorney general shall enforce all provisions of Title 62A, Chapter 4a, Child and
Family Services, and this chapter, relating to:
(i) protection or custody of an abused, neglected, or dependent child; and
(ii) petitions for termination of parental rights.
(c) The attorney general shall represent the Division of Child and Family Services in
actions involving a minor who is not adjudicated as abused or neglected, but who is receiving
in-home family services under Section 
78A-6-117.5
. Nothing in this Subsection (2)(c) may be
construed to affect the responsibility of the county attorney or district attorney to represent the
state in those matters, in accordance with Subsection (2)(a).
(3) The board may adopt special rules of procedure to govern proceedings involving
violations of traffic laws or ordinances, wildlife laws, and boating laws. However, proceedings
involving offenses under Section 
78A-6-606
 are governed by that section regarding suspension
of driving privileges.
(4) (a) For the purposes of determining proper disposition of the minor in dispositional
hearings and establishing the fact of abuse, neglect, or dependency in adjudication hearings and
in hearings upon petitions for termination of parental rights, written reports and other material
relating to the minor's mental, physical, and social history and condition may be received in
evidence and may be considered by the court along with other evidence. The court may require
that the [
person
] 
individual
 who wrote the report or prepared the material appear as a witness if
the [
person
] 
individual
 is reasonably available.
(b) For the purpose of determining proper disposition of a minor alleged to be or
adjudicated as abused, neglected, or dependent, dispositional reports prepared by the division
under Section 
78A-6-315
 may be received in evidence and may be considered by the court
along with other evidence. The court may require any [
person
] 
individual
 who participated in
preparing the dispositional report to appear as a witness, if the [
person
] 
individual
 is reasonably
available.
(5) (a) In an abuse, neglect, or dependency proceeding occurring after the
commencement of a shelter hearing under Section 
78A-6-306
 or the filing of a petition under
Section 
78A-6-304
, each party to the proceeding shall provide in writing to the other parties or
their counsel any information which the party:
(i) plans to report to the court at the proceeding; or
(ii) could reasonably expect would be requested of the party by the court at the
proceeding.
(b) The disclosure required under Subsection (5)(a) shall be made:
(i) for dispositional hearings under Sections 
78A-6-311
 and 
78A-6-312
, no less than
five days before the proceeding;
(ii) for proceedings under Chapter 6, Part 5, Termination of Parental Rights Act, in
accordance with Utah Rules of Civil Procedure; and
(iii) for all other proceedings, no less than five days before the proceeding.
(c) If a party to a proceeding obtains information after the deadline in Subsection
(5)(b), the information is exempt from the disclosure required under Subsection (5)(a) if the
party certifies to the court that the information was obtained after the deadline.
(d) Subsection (5)(a) does not apply to:
(i) pretrial hearings; and
(ii) the frequent, periodic review hearings held in a dependency drug court case to
assess and promote the parent's progress in substance use disorder treatment.
(6) For the purpose of establishing the fact of abuse, neglect, or dependency, the court
may, in [
its
] 
the court's
 discretion, consider evidence of statements made by a child under eight
years of age to [
a person
] 
an individual
 in a trust relationship.
(7) (a) As used in this Subsection (7):
(i) "Cannabis" means the same as that term is defined in Section 
26-61a-102
.
[
(i)
] 
(ii)
 "Cannabis product" means the same as that term is defined in Section
26-61a-102
.
(iii) (A) "Chronic" means repeated or patterned.
(B) "Chronic" does not mean an isolated incident.
[
(ii)
] 
(iv)
 "Dosing parameters" means the same as that term is defined in Section
26-61a-102
.
[
(iii)
] 
(v)
 "Medical cannabis" means the same as that term is defined in Section
26-61a-102
.
[
(iv)
] 
(vi)
 "Medical cannabis cardholder" means the same as that term is defined in
Section 
26-61a-102
.
[
(v)
] 
(vii)
 "Qualified medical provider" means the same as that term is defined in
Section 
26-61a-102
.
(b) In any child welfare proceeding in which the court makes a finding, determination,
or otherwise considers an individual's possession or use of medical cannabis, a cannabis
product, or a medical cannabis device, the court may not consider or treat the individual's
possession or use any differently than the lawful possession or use of any prescribed controlled
substance if the individual's use or possession complies with:
(i) Title 4, Chapter 41a, Cannabis Production Establishments;
(ii) the individual's possession or use complies with Subsection 
58-37-3.7
(2) or (3); or
(iii) (A) the individual's possession or use complies with Title 26, Chapter 61a, Utah
Medical Cannabis Act; and
(B) the individual reasonably complies with the dosing parameters determined by the
individual's qualified medical provider or through a consultation described in Subsection
26-61a-502
(4) or (5).
(c) In a child welfare proceeding, a parent's or guardian's use of cannabis or a cannabis
product is not abuse or neglect of a child under Section 
78A-6-105
 unless there is evidence
showing that:
(i) the child is harmed because of the child's inhalation or ingestion of cannabis, or
because of cannabis being introduced to the child's body in another manner; or
(ii) the child is at an unreasonable risk of harm because of chronic inhalation or
ingestion of cannabis or chronic introduction of cannabis to the child's body in another manner.
[
(c)
] 
(d)
 [
A
] 
Unless there is harm or an unreasonable risk of harm to the child as
described in Subsection (7)(c), in a child welfare proceeding a
 parent's or guardian's use of
medical cannabis or a cannabis product is not [
abuse or neglect of a child under Section
78A-6-105
, nor is it
] contrary to the best interests of a child[
,
] if:
(i) [
(A)
] for a medical cannabis cardholder after January 1, 2021, the parent's or
guardian's possession or use complies with Title 26, Chapter 61a, Utah Medical Cannabis Act,
and there is no evidence that the parent's or guardian's use of medical cannabis unreasonably
deviates from the dosing parameters determined by the parent's or guardian's qualified medical
provider or through a consultation described in Subsection 
26-61a-502
(4) or (5); or
[
(B)
] 
(ii)
 before January 1, 2021, the parent's or guardian's possession or use complies
with Subsection 
58-37-3.7
(2) or (3)[
; and
]
.
[
(ii) (A) there is no evidence showing that the child has inhaled, ingested, or otherwise
had cannabis introduced to the child's body; or
]
[
(B) there is no evidence showing a nexus between the parent's or guardian's use of
medical cannabis or a cannabis product and behavior that would separately constitute abuse or
neglect of the child.
]
(e) Subsection (7)(c) does not prohibit a finding of abuse or neglect of a child under
Section 
78A-6-105
, and Subsection (7)(d) does not prohibit a finding that a parent's or
guardian's use of medical cannabis or a cannabis product is contrary to the best interests of a
child, if there is evidence showing a nexus between the parent's or guardian's use of cannabis or
a cannabis product and behavior that would separately constitute abuse or neglect of the child.