Utah Criminal Defense

Child Abuse

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UTAH CHILD ABUSE CHARGES?

The Police are Calling.  DCFS Has Already  Interviewed your Kid at School.  What are my Right?

You are reading this website because likely because the police have just called and left a message for you, asking you come to the station and answer some questions.  The police mention something about your kids, but say little else.    Or maybe a Utah Child Protection Worker has already interviewed your child at school, without your consent and is now on your front doorstep, asking to talk to you.

 

Utah also has a child abuse registry.

What do you do? 

How Utah Child Abuse Attorney Jake Gunter Can Help. Immediately after retaining Jake Gunter he will call the police and DCFS for you.  Insisting on your Utah and Federal Constitutional rights to remain silent, your right to an attorney and for them to strictly contact him.   This is a good first step.

What is Child Abuse in Utah

                Felony Child Abuse—”Serious Physical Injury.”   Any person who inflicts upon a child “serious physical injury” or, having the care or custody of such child, causes or permits another to inflict serious physical injury upon a child is guilty of an offense as follows:

(a)          if done intentionally or knowingly, the offense is a felony of the second degree;

(b)          if done recklessly, the offense is a felony of the third degree; or

(c)           if done with criminal negligence, the offense is a class A misdemeanor.

“Serious Physical Injury” is specifically defined in the child abuse statute to mean:

Serious physical injury” means any physical injury or set of injuries that:  (A)          seriously impairs the child’s health; (B) involves physical torture; (C)  causes serious emotional harm to the child; or (D) involves a substantial risk of death to the child.  (E) fracture of any bone or bones; (F)  intracranial bleeding, swelling or contusion of the brain, whether caused by blows, shaking, or causing the child’s head to impact with an object or surface; (G) any burn, including burns inflicted by hot water, or those caused by placing a hot object upon the skin or body of the child; (H) any injury caused by use of a dangerous weapon as defined in Section 76-1-601; (I) any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions; (J) any damage to internal organs of the body; (K) any conduct toward a child that results in severe emotional harm, severe developmental delay or intellectual disability, or severe impairment of the child’s ability to function; (K) any injury that creates a permanent disfigurement or protracted loss or impairment of the function of a bodily member, limb, or organ; (L) any impediment of the breathing or the circulation of blood by application of pressure to the neck, throat, or chest, or by the obstruction of the nose or mouth, that is likely to produce a loss of consciousness; (M) any conduct that results in starvation or failure to thrive or malnutrition that jeopardizes the child’s life; or (N) unconsciousness caused by the unlawful infliction of a brain injury or unlawfully causing any deprivation of oxygen to the brain.

The real kicker is when the police or prosecutor  allege two relatively minor physical injury accusations, but in combination they charged with a felony, even though each one would be a misdemeanor at best.

                What the Penalties for Felony Child Abuse in Utah?

2nd Degree Felony.   1-15 Years Utah State Prison, Jail or Probation.

3rd Degree Felony.   0-5 Years Utah Station Prison, Jail or Probation.  Serious Physical Bodily Injury.

First Time Offenders—Child Abuse.

                Even if you are a first time offender, never having a Utah criminal record before, felony child abuse is one of those crimes where you can serve prison time for a first offense.  Jail time and supervised probation through Adult Probation & Parole is very likely with parenting time classes, or anger management being part of your supervised probation.  AP&P is likely to last 18 months unless you can convince your Utah AP&P agent to terminate supervised probation early converting it to court probation.

Felony child abuse in Utah can carry prison, jail, probation or a combination thereof.  A fine will be imposed along with complying with any concurrently running DCFS child welfare case.

Felony child abuse convictions will require you to register on the Utah Child Abuse registry.  See below for more information on the Utah child abuse registry.  Further you will be placed on the Management Information System and it’s subpart, the Licensing Information System list for internal government use.   See Utah Code Ann. 62A-4a-1006 (2021).

What is Misdemeanor Child Abuse in Utah?

Any person who inflicts upon a child “physical injury” or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense as follows:

(a)          if done intentionally or knowingly, the offense is a class A misdemeanor;

(b)          if done recklessly, the offense is a class B misdemeanor; or

(c)           if done with criminal negligence, the offense is a class C misdemeanor.

Physical Injury” is specifically defined and means:  an injury to or condition of a child which impairs the physical condition of the child, including: a bruise or other contusion of the skin;  a minor laceration or abrasion;                  failure to thrive or malnutrition; or any other condition which imperils the child’s health or welfare and which is not a serious physical injury as defined.

                What are the Penalties for Misdemeanor Child Abuse in Utah?

                Unlike felony child abuse, a misdemeanor Utah child abuse conviction cannot carry any prison time, but jail, probation or a combination thereof is very likely.  Even for a first time offender.

Class A Misdemeanor.   Intentional.  0-1 year in the County Jail.  No prison possible.

Class B Misdemeanor.  Recklessly.  0-6 months in the County Jail.  No prison possible.

Class C Misdemeanor.  Criminal negligence.  0-90 days in the County Jail.  No prison possible.

What is “INTENTIONALLY, RECKLESSLY OR WITH CRIMINAL NEGLIGENCE” under Utah Criminal Law?    Utah Code 76-2-103  defines these terms as follows.

(1)          Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.

(2)          Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

(3)          Recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

(4)          With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.

Common Child Abuse Examples.

Scarring. Bruising.  Burns.  Broken bones.  Concussions, head injuries.   Lacerations, cuts.  Sexual abuse, emotional abuse. Environmental neglect.

For child welfare purposes, child abuse is formally defined at (abuse or neglect) Utah Code Ann. 76-5-109 and Child Endangerment at Utah Code 76-5-112.5.

Utah Code 78A-6-105 child abuse means:  (A) nonaccidental harm of a child; (B) threatened harm of a child; (C) sexual exploitation; (D) sexual abuse; or (E)   human trafficking of a child.  Child abuse is NOT:  Reasonable child discipline, self-defense or defense of other.

Felony Child Abandonment in Utah—What is it?

A person is guilty of felony child abandonment in Utah when they abandon their child. Child Abandonment is specifically defined in the Utah Child Abuse Statute  and is worth your read if you are charged with felony child abandonment.

Defense to Utah Child Abuse. 

                Self-Defense.   Self-defense is always a defense to child abuse actions and may well explain the situation.

Defense of Other.  Like self-defense, defense of other is specifically listed as a defense to child abuse charges.

Religious Free Exercise.  Utah has a specific reference that it is not child abuse to exercise your religious choice in not using medical care within reasonable limits.   The exact religious free exercise defense states:

                “A parent or legal guardian who provides a child with treatment by spiritual means alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an established church or religious denomination of which the parent or legal guardian is a member or adherent shall not, for that reason alone, be considered to have committed an offense under this section.”  See Utah Code 76-5-109(6) (2021).

                Reasonable Discipline.   Much is written about what constitutes “reasonable child discipline.”  At the end of the day “reasonable child discipline” is what the JURY says it is.  Hiring an effective Utah child abuse attorney can really make the difference.

                Cross-Examination.  Challenging The Credibility Of Witnesses And Your Accusers.

Child Abuse cases are full of witnesses who are inclined to slant the truth, or worse, fully lie on the witness stand against you.  Often the mother accuser is directly involved in a pending child custody dispute with you and has serious reasons to fabricate, lie or mislead the police and DCFS investigators.

The innocent child witness is often stuck in the middle of mingling influencing adults.  These child witness are often parrots of what their parents are saying, or completely don’t understand the ramifications of their words.  Implanting of memories, or coaching can occur.

This is where a proven trial lawyer can make the difference inside the four corners of a courtroom with a jury present.  The trial lawyer’s ability to cross-examine and discover the truth on these witness is often your best bet.  Don’t hire a young, inexperienced Utah child abuse defense attorney on your case.

Utah Children’s Justice Center Child Interviews. 

Usually children who are believed to be sexually or physical abused are forensically interviewed by the county Children’s Justice Center by a Department of Child and Family Services worker trained in forensic child interviewing.

Understanding the accepted child forensic interviewing principles is critical.  Hiring an expert witness to analyze the CJC child interview for suggestive or poor forensic practices is critical to defending your case.  Utah child interviewers tend to use the NICHD Investigative Interview Protocol in CJC forensic child interviewing.

See more about the NICHD forensic child interviewing technique at:  http://nichdprotocol.com/

Utah Division of Child and Family Services.  (“DCFS”).  Child Protection Workers.  (“CPS”).

                Dealing with DCFS is a topic in itself.  Attorney Jake Gunter has been battling aggressive DCFS tactics for nearly 20 years.  Fighting back against unconstitutional invasions into the divine and constitutionally protected parent-child relationship.

A read of the DCFS child welfare manual is very interesting.

When you have been charged with Child Abuse, here the is what to look for form DCFS.

                “Notice of Agency Action.”  This letter will come to your last known address, most of the time of the wrong address, after the DCFS investigation is complete.  It states you have been substantiated for child abuse.  You have 1 year to challenge these findings internally with DCFS or in front of a Juvenile Judge.

If you have the financial means to challenge DCFS findings against you should.  People rarely do.

There several consequences of being substantiated by DCFS for child abuse, two among them are:

Management Information SystemThis is an internal database required by federal and state law to record people who have had child welfare cases. See Utah Code 62A-4a-1003 for an exhaustive detailing of what the Management Information System is, who keeps it, what is it used for.

                License Information Management SystemA sub database of the Management Information System is the License Information Management System and is used for licensing purposes.

                Challenging Supported DCFS Findings.   An entire treatise could be written about this topic alone.  Suffice it to say.  Exercise your legal rights and challenge all DCFS finding against you.   See this deeper article on challenging DCFS findings the merit of it.

                Expungement of DCFS Findings.  Prior to around 2020, DCFS findings were permanent and you could not expunge them.   Today, you have a limited ability to seal and erase DCFS findings.   See this article on who to expunge Utah DCFS findings.

See this deep dive article on expunging Utah DCFS findings.

Basics of the Utah Child Abuse Registry.   

                Relatively unknown is the Utah Child Abuse Registry.  Like it’s older cousin, the Utah Sex Offense Registry, there is also a White Collar Crime and Kidnapping Registry in Utah.

Here are the basics of the ever evolving Utah Child Abuse Registry.

                 Utah Code 77-43-101 is where the Utah Child Abuse registry provisions are written out.  The child abuse registry mirrors the Utah sex offense registry.   So it has a 10 year registry and a life time child abuse registration.

                Lifetime Registry.   Check the statute every single time, but currently all first degree child abuse felonies are lifetime registry offenses.   Intentional infliction of serious physical abuse is a lifetime registry.

10 Year Registry.  Most felony child abuse convictions are 10 year registrations, but check every single time and check often.

GETTTING AHEAD ON THE SITUATION.  At the first hint of DCFS and police involvement in a child abuse case, hire Attorney Jake Gunter immediately.  Don’t do any interviews, phone calls or sites visits at all.  Never talk to DCFS without an attorney.

Other Children Crimes.

                Sex Offenses

                DCFS Child Welfare Proceedings.

                Juvenile Delinquency

                Juvenile Non-Judicial Adjustment.

                Custodial Interference.  https://provocriminaldefense.com/2020/09/18/i-got-charged-with-child-custodial-interference-on-my-own-kids-is-this-right/

                Lewdness Involving a Child.

                Child Endangerment.

                Domestic Violence in the Presence of Children

                You can read the entire statute here:

Effective 5/9/2017

76-5-109.  Child abuse — Child abandonment.

(1)          As used in this section:

(a)          “Child” means a human being who is under 18 years of age.

(b)

(i)            “Child abandonment” means that a parent or legal guardian of a child:

(A)          intentionally ceases to maintain physical custody of the child;

(B)          intentionally fails to make reasonable arrangements for the safety, care, and physical custody of the child; and

(C)

(I)           intentionally fails to provide the child with food, shelter, or clothing;

(II)          manifests an intent to permanently not resume physical custody of the child; or

(III)         for a period of at least 30 days:

(Aa)       intentionally fails to resume physical custody of the child; and

(Bb)       fails to manifest a genuine intent to resume physical custody of the child.

(ii)           “Child abandonment” does not include:

(A)          safe relinquishment of a child pursuant to the provisions of Section 62A-4a-802; or

(B)          giving legal consent to a court order for termination of parental rights:

(I)           in a legal adoption proceeding; or

(II)          in a case where a petition for the termination of parental rights, or the termination of a guardianship, has been filed.

(c)           “Child abuse” means any offense described in Subsection (2), (3), or (4) or in Section 76-5-109.1.

(d)          “Enterprise” is as defined in Section 76-10-1602.

(e)          “Physical injury” means an injury to or condition of a child which impairs the physical condition of the child, including:

(i)            a bruise or other contusion of the skin;

(ii)           a minor laceration or abrasion;

(iii)          failure to thrive or malnutrition; or

(iv)         any other condition which imperils the child’s health or welfare and which is not a serious physical injury as defined in Subsection (1)(f).

(f)

(i)            “Serious physical injury” means any physical injury or set of injuries that:

(A)          seriously impairs the child’s health;

(B)          involves physical torture;

(C)          causes serious emotional harm to the child; or

(D)          involves a substantial risk of death to the child.

(ii)           “Serious physical injury” includes:

(A)          fracture of any bone or bones;

(B)          intracranial bleeding, swelling or contusion of the brain, whether caused by blows, shaking, or causing the child’s head to impact with an object or surface;

(C)          any burn, including burns inflicted by hot water, or those caused by placing a hot object upon the skin or body of the child;

(D)          any injury caused by use of a dangerous weapon as defined in Section 76-1-601;

(E)          any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions;

(F)          any damage to internal organs of the body;

(G)         any conduct toward a child that results in severe emotional harm, severe developmental delay or intellectual disability, or severe impairment of the child’s ability to function;

(H)          any injury that creates a permanent disfigurement or protracted loss or impairment of the function of a bodily member, limb, or organ;

(I)           any impediment of the breathing or the circulation of blood by application of pressure to the neck, throat, or chest, or by the obstruction of the nose or mouth, that is likely to produce a loss of consciousness;

(J)           any conduct that results in starvation or failure to thrive or malnutrition that jeopardizes the child’s life; or

(K)          unconsciousness caused by the unlawful infliction of a brain injury or unlawfully causing any deprivation of oxygen to the brain.

(2)          Any person who inflicts upon a child serious physical injury or, having the care or custody of such child, causes or permits another to inflict serious physical injury upon a child is guilty of an offense as follows:

(a)          if done intentionally or knowingly, the offense is a felony of the second degree;

(b)          if done recklessly, the offense is a felony of the third degree; or

(c)           if done with criminal negligence, the offense is a class A misdemeanor.

(3)          Any person who inflicts upon a child physical injury or, having the care or custody of such child, causes or permits another to inflict physical injury upon a child is guilty of an offense as follows:

(a)          if done intentionally or knowingly, the offense is a class A misdemeanor;

(b)          if done recklessly, the offense is a class B misdemeanor; or

(c)           if done with criminal negligence, the offense is a class C misdemeanor.

(4)          A person who commits child abandonment, or encourages or causes another to commit child abandonment, or an enterprise that encourages, commands, or causes another to commit child abandonment, is:

(a)          except as provided in Subsection (4)(b), guilty of a felony of the third degree; or

(b)          guilty of a felony of the second degree, if, as a result of the child abandonment:

(i)            the child suffers a serious physical injury; or

(ii)           the person or enterprise receives, directly or indirectly, any benefit.

(5)

(a)          In addition to the penalty described in Subsection (4)(b), the court may order the person or enterprise described in Subsection (4)(b)(ii) to pay the costs of investigating and prosecuting the offense and the costs of securing any forfeiture provided for under Subsection (5)(b).

(b)          Any tangible or pecuniary benefit received under Subsection (4)(b)(ii) is subject to criminal or civil forfeiture pursuant to Title 24, Forfeiture and Disposition of Property Act.

(6)          A parent or legal guardian who provides a child with treatment by spiritual means alone through prayer, in lieu of medical treatment, in accordance with the tenets and practices of an established church or religious denomination of which the parent or legal guardian is a member or adherent shall not, for that reason alone, be considered to have committed an offense under this section.

(7)          A parent or guardian of a child does not violate this section by selecting a treatment option for the medical condition of the child, if the treatment option is one that a reasonable parent or guardian would believe to be in the best interest of the child.

(8)          A person is not guilty of an offense under this section for conduct that constitutes:

(a)          reasonable discipline or management of a child, including withholding privileges;

(b)          conduct described in Section 76-2-401; or

(c)           the use of reasonable and necessary physical restraint or force on a child:

(i)            in self-defense;

(ii)           in defense of others;

(iii)          to protect the child; or

(iv)         to remove a weapon in the possession of a child for any of the reasons described in Subsections (8)(c)(i) through (iii).

Amended by Chapter 388, 2017 General Session

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