Utah Criminal Code 76-5-112.5: Endangerment Of A Child Or Vulnerable Adult
1. As used in this section:
a) “Chemical substance” means a substance intended to be used as a precursor in the manufacture of a controlled substance, or any other chemical intended to be used in the manufacture of a controlled substance. Intent under this subsection may be demonstrated by the substance’s use, quantity, manner of storage, or proximity to other precursors, or to manufacturing equipment.
b) “Child” means the same as that term is defined in Subsection 76-5-109(1)(a).
c) “Controlled substance” means the same as that term is defined in Section 58-37-2.
d) “Drug paraphernalia” means the same as that term is defined in Section 58-37a-3.
e) “Elder adult” means the same as that term is defined in Section 76-5-111.
2. Unless a greater penalty is otherwise provided by law, any person who knowingly or intentionally causes or permits a child or elder adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Subsection (1), is guilty of a felony of the third degree.
3. Unless a greater penalty is otherwise provided by law, any person who violates Subsection (2), and a child or elder adult actually suffers bodily injury, substantial bodily injury, or serious bodily injury by exposure to, ingestion of, inhalation of, or contact with a controlled substance, chemical substance, or drug paraphernalia, is guilty of a felony of the second degree unless the exposure, ingestion, inhalation, or contact results in the death of the child or elder adult, in which case the person is guilty of a felony of the first degree.
4. It is an affirmative defense to a violation of this section that the controlled substance was provided by lawful prescription for the child or elder adult, and that it was administered to the child or elder adult in accordance with the prescription instructions provided with the controlled substance.
a) As used in this Subsection (4), “prescription” has the same definition as in Section 58-37-2. The term reckless endangerment covers many different types of actions, all involving the recklessness or indifference likely to cause death or serious bodily injury to a child, by an adult. Some states include endangerment offenses in child abuse statutes, while other states make child endangerment a separate offense altogether.
Endangerment of a child is a serious crime that can either be classified as a misdemeanor or a felony, otherwise known as a “wobbler,” depending on the specifics and surrounding circumstances of the offense and the particular state’s criminal code. For example, in Utah, child endangerment would rise to a level of felony where there is substantial or significant injuries, including death. Whereas, endangerment would rise to a level of misdemeanor where the child does not experience great bodily harm or dies. A person is determined to commit the crime of reckless endangerment when they place a child in a situation where it is more likely than not the child will become exposed to harm. That means that the caregiver must do more than make a mistake or act foolhardy. The individual does not need to intend to harm a child, rather they only need to have acted without regard or care for the foreseeable injuries and consequences that would result from their actions. Proving reckless endangerment requires a thorough examination of the surrounding circumstances and evidence in order to prove the accused state of mind. If the defendant can demonstrate that they didn’t know, or didn’t have a good reason to know about the harm, then it may serve as a defense in their favor.
Examples of Reckless Endangerment of a Child
Child endangerment laws differ by state as to what constitutes child endangerment and are often very broadly applied. The most common examples of reckless endangerment of a child include:
• Having a child in a car while driving under the influence of alcohol or drugs;
• Leaving a child in a hot car;
• Committing a crime while a child is with you, such as domestic abuse, robbery, manufacturing drugs, etc.;
• Having unsecured firearms in the same environment as a child;
• Buying alcohol for minors or serving alcohol to an underage driver;
• Leaving a child unsupervised in an unsafe area, such as a construction site;
• Leaving a child home alone without proper adult supervision or care;
• Engaging in sexual activity in view of a child; or
• Other various forms of child abuse or failing to report suspected child abuse.
Child abuse can also involve intentional battery or assault of a child, such as physically beating the child. Additionally, child abuse can include failing to feed, clothe, or provide proper shelter for the child. When an adult does not intend to cause harm to a child, but the child suffers the harm regardless, due to the careless supervision of the child, the adult may be found guilty of negligent child endangerment. Most states make exceptions for the reasonable discipline of children. What is reasonable will depending on the circumstances of the discipline, and the exception of reasonable discipline is more difficult to utilize when the child is being placed in higher degrees of risk. With higher degrees of risk and charges, such as charges of felony child endangerment, it is better to try and prove that the conduct was merely reckless or negligent. You accomplish this by gathering a list of witnesses, if any, to negate that the action ever even occurred (the best, but most improbable defense); or presenting testimony or even an expert witness to demonstrate that the risk alleged would not have resulted in great bodily injury or death to the child. Although not always necessary, as a simple investigation of the charges may reveal them to be false or exaggerated, defending against well founded charges of reckless child endangerment requires the consultation of a qualified criminal defense attorney. You should contact an attorney immediately if you have been charged with or have any legal questions regarding reckless child endangerment or other degrees of child endangerment. Because punishment for reckless child endangerment can often include fines up to $1,000 or more, probation, removal of parental rights, or even one year of prison time or more, a qualified criminal defense attorney is often necessary to defend you from the charges you are facing. Child custody cases depend on a number of important factors. One of those factors is the child endangerment history of both parents. If you or the other parents have a history of endangerment, then you could lose your custody rights. Find out how your history of child endangerment can impact your custody case.
How Does Endangerment Impact Child Custody?
During child custody hearings, a judge makes many important considerations. For one, she needs to consider the bond between a child and a parent. Additionally, she needs to decide what is in the best interest of the child. However, much of the judge’s decision relies on past behavior of each parent. And if your past behavior resulted in child endangerment, then you may have a problem. Child endangerment occurs when you knowingly put your child in harm’s way. It does not matter whether the harm is physical or mental. Whether negligence or recklessness was the cause of endangerment, an individual could face charges. Endangerment comes in many forms. For example, it could be something minor, like leaving a child unattended. However, it could be something more serious, like driving drunk with a child in your car. Although child endangerment charges vary in severity, the court always takes them seriously. If you have a past child endangerment charge, then a judge will hold it against you in your battle for custody rights.
Why Does it Matter?
Children depend on their parents for everything. If you can’t keep your child safe from harm, then a judge might think that you are unsafe to be a parent. Even one endangerment incident is enough for her to believe that you might be unfit to be a parent. In a custody case, a judge needs to decide what is best for a child based on the information that she has about the parents. If that information points to you being an unfit parent, then she will take it into consideration. Of course, child endangerment doesn’t always make you an unfit parent. Sometimes, you are a victim of circumstance. Although a judge might look into the situation surrounding your charges, it might not make a difference. The judge could still decide to deny you basic custody rights. It depends on the judge, your lawyer, and the fitness of the other parent. If a judge believes that your endangerment charges are less serious, she may still choose to take away some custody rights. Instead of completely taking away your rights, she could do the following:
• Reduce the amount of visitation hours that you get
• Prevent you from getting any overnight visits with your child
• Only allow you to have supervised visitation. In this case, a third-party would monitor every one of your visits
The amount of restrictions that you face depends on many other factors. However, these restrictions are only common in minor endangerment charges. If your charge was a serious offense, then the judge could choose to withhold all of your rights as a parent. As with many other issues, judges have a great deal of flexibility when it comes to making a decision. There is no set standard for behavior. While judges need to adhere to rules and regulations, they don’t have to rely on a set protocol for making a ruling. For example, one judge might believe that child endangerment of any kind is unacceptable. If he feels that way, then he could choose to withhold all of your rights as a parent. Meanwhile, another judge could have a different opinion. She could believe that child endangerment does not mean that you should lose your rights. Instead of withholding them all, she might offer you supervised visitation. The only way to know what could happen in your custody case is to speak to a lawyer. When your lawyer assesses your case, he can tell you about the possible outcomes. He can also come up with a strategy to get you the best possible outcome. Without getting expert legal advice, there is no way for you to know what to expect in court.
Fighting for Your Custody Rights
If you have a history of child endangerment, then you need to fight hard for your custody rights. Even a minor incident is enough for a judge to limit your rights. When you go to court, a judge will take the incident very seriously. You need an experienced lawyer to stand up for you in court. Your child endangerment history might not be a reason to deny you custody rights. After all, everyone makes mistakes. If your charges were a misunderstanding or a genuine mistake, then you deserve a second chance.
Endangering the Welfare of a Child Law and Legal Definition
Laws vary by state, but generally, a man or woman may commit the crime of endangering the welfare of a child when:
1. He or she knowingly directs or authorizes a child under a defined age to engage in an occupation involving a substantial risk of danger to his life or health; or
2. He or she, as a parent, guardian or other person legally charged with the care or custody of a minor, fails to exercise reasonable diligence in the control of such child to prevent him or her from becoming a “dependent child” or a “delinquent child””.
3. He or she knowingly permits a child under a defined age of age to enter or remain in a house of prostitution.
4. He or she knowingly sells, furnishes, gives away or offers to sell, furnish or give away to a child under a defined age any intoxicating liquor, cigarettes, tobacco, air rifles, gunpowder, smokeless powder or ammunition for firearms.
5. Being the parent, foster parent, guardian or other person having the care and custody of the child, cruelly treats that child by abuse, neglect or extreme punishment.
Remedial treatment by spiritual means alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical treatment may be excepted from the above as an offense. A frequent result of an “endangering” charge is that the child is removed from the home and placed in foster care (if the accused is a parent).
What Constitutes Child Endangerment?
Though state laws differ in how they categorize and punish child endangerment, it is a crime in every state. State laws share the following characteristics. Child endangerment laws are often very broadly applied, and any number of acts can lead to a conviction. Courts have held that obviously dangerous activities such as having a child in a car while driving under the influence of alcohol or drugs constitute child endangerment. Other dangerous activities that qualify include failing to properly secure a child while driving an automobile, exposing a child to drug transactions, drug manufacturing, having unsecured firearms in the same environment as a child, engaging in sexual activity in view of a child, or leaving a young child without proper supervision. Child endangerment laws are designed to punish behavior that might lead to a child becoming harmed, but they do not require that children actually suffer an injury or physical harm. State laws often categorize child endangerment as placing a child in a situation that might endanger the child’s life, health, welfare, morals, or emotional well-being. However, child endangerment may still be charged in cases where the actions of the caregiver did eventually result in the child being physically injured or harmed. To obtain a conviction for child endangerment crime, a prosecutor does not have to show that a parent or caregiver intentionally meant to expose the child to a dangerous situation. The courts apply a “reasonable person” standard in child endangerment cases. This means that even if the accused didn’t realize the situation was dangerous, reasonable people in that situation would have understood their actions endangered the child’s well-being. The circumstances of each case will determine whether the accused either knew or should have known that the child was endangered.
Child endangerment is punished as either a misdemeanor or a felony depending on the circumstances of the case and state law. While each state punishes child endangerment differently, the potential punishments for conviction are the same wherever the crime occurs. The difference between a misdemeanor and felony charge often rests upon whether the child was exposed to significant harm or placed in a particularly dangerous situation. Some states also differentiate felonies and misdemeanors based on whether the child suffered actual physical harm as a result of the adult’s actions.
• Jail or prison. People convicted of a misdemeanor child endangerment charge typically face up to one year in jail. Felony convictions are much more serious, and anyone convicted of felony child endangerment faces 1 to 10 years in prison or more.
• Probation. Courts may also order someone convicted of child endangerment to serve a probation sentence. Probation typically lasts at least a year and requires the convicted person to regularly report to a probation officer, as well as take other actions such as attend family counseling and refrain from further illegal activity. Violating the terms of probation can result in the court ordering a jail or prison sentence.
• Fines. In the same way that jail sentences differ depending on whether a person is convicted of a misdemeanor or felony charge, the fines a court imposes for child endangerment convictions also differ widely. A misdemeanor child endangerment conviction can bring fines of up to $1,000, while felony convictions can come with fines of up to $10,000 or more.
• Parental rights. If a parent or legal guardian is convicted of child endangerment, the court may strip the parent of parental rights. In this situation, either the other parent will retain sole parental rights or, if there is no other parent, the court will appoint a new guardian to care for the child. The child may also be placed with the state child services agency until a new guardian can be appointed.
When you need legal help to defend against criminal charges in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506