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The Kids Aren't Alright: A Child Protection Bill Hits a Snag


Published January 28, 2015 at 10:00 a.m.
Updated November 7, 2017 at 12:38 p.m.

Fair Game is Seven Days’ weekly political column.
File: Sen. Claire Ayer - JEB WALLACE-BRODEUR
  • Jeb Wallace-Brodeur
  • File: Sen. Claire Ayer

Since the Senate gaveled into session three weeks ago, two of its top committee chairs have been pushing to pass Vermont's most expansive child protection legislation in years.

Their goal? To put the blockbuster bill on Gov. Peter Shumlin's desk before the legislature's Town Meeting Day recess in early March.

But their work hit a significant snag last week when an array of advocates — representing children, domestic violence victims, civil libertarians and even the administration — said provisions in the bill went too far. They worry that a proposed new "failure to protect a child" felony could send innocent bystanders to jail for 10 years and discourage drug users and victims of violence from seeking help.

Now the bill's two chief sponsors — Senate Health and Welfare Committee chair Claire Ayer (D-Addison) and Senate Judiciary Committee chair Dick Sears (D-Bennington) — say they plan to scale back the bill.

"We expected this was going to freak people out," Ayer says. "We are firm in our conviction that this is a crime, but we just need to make sure we define it properly."

The legislation came out of months of hearings last year that were hosted by Ayer, Sears and a panel of legislators charged with investigating Vermont's child protection system. The special committee was formed last February following the death of 2-year-old Dezirae Sheldon of Poultney; its mission expanded after the April death of 15-month-old Peighton Geraw of Winooski.

The Vermont Department for Children and Families was working with both children's families when they died of blunt force trauma.

Ayer and Sears say their bill, cosponsored by a bipartisan group of four other panel members, is intended to address "glaring problems" at DCF and elsewhere in the system. External reports produced in the wake of the 2014 deaths found that the state agency was underfunded, overworked and overly inclined to return children to their parents.

"To me, protecting kids is paramount," Sears says. "I think this is the most important bill the Senate has right now."

Among the changes it proposes: barring the state from sending a child back home if it would be "contrary to [his or her] best interests"; requiring DCF to improve its internal policies; creating a new office of the child protection advocate; and easing confidentiality requirements to facilitate communication between agencies.

While advocates largely agree with the overall intent of the bill, two provisions in particular have drawn scrutiny.

One would redefine "harm" to a child to include "exposure to the unlawful possession, use, manufacture, cultivation or sale" of everything from heroin to ecstasy to marijuana.

The other would criminalize the so-called "failure to protect." The new felony would target not only those who directly hurt a child, but also anyone who "knows, or reasonably should have known" that a child is in danger "and fails to act to prevent" it.

The penalty? Up to 10 years in jail and a fine of $20,000.

Ayer and Sears say those provisions were recommended by state prosecutors, who told them they're often unable to remove children from their homes even when they suspect abuse or are aware of drug use.

"Unless somebody goes in and there's needles within grab-able reach of the kids, it's sometimes difficult to prove neglect," says Windsor County State's Attorney Michael Kainen, who has witnessed a surge of abuse cases stemming from opiate addiction.

Often, says Attorney General Bill Sorrell, it's tough to prove that a primary caregiver committed abuse, but it's clear he or she was aware of it.

"The reality is we've had a number of cases in Vermont, and not just the ones that have been in the news, where, from a criminal standpoint, our hands have been tied," he says.

In order to speed their bill through the legislative process, Ayer and Sears have been holding joint hearings with four House and Senate committees each Wednesday.

During last week's session, DCF Commissioner Ken Schatz raised reservations about the "failure to protect" provision, calling it overly broad. That prompted the ever-dramatic Sears to walk out of his own hearing, complaining that Schatz should have warned him the administration wasn't on board.

Sears has been complaining ever since to any reporter who will listen.

"We heard nothing until last week," he grumbles. "It would've been helpful had he brought his thoughts to us."

To that, Schatz, who took over the department in September, says, "I take responsibility. I didn't talk to him. I should have. Lesson learned."

But Schatz, who supports many provisions in the bill, is far from alone in worrying about the unintended consequences of the "failure to protect" language.

KidSafe Collaborative executive director Sally Borden, who cochaired a Vermont Citizens Advisory Panel investigation into last year's deaths, says she, too, thinks the state should "tread carefully."

Borden fears the threat of criminal prosecution of those who expose children to drugs could reverse the state's progress in encouraging mothers to seek substance abuse treatment.

"I am concerned that this could have a chilling effect, particularly on pregnant women coming in for care," she says.

Likewise, Vermont Network Against Domestic & Sexual Violence lobbyist Auburn Watersong says she believes the proposal could "criminalize" those who are themselves victims of abuse but do not feel safe enough to report the abuse of a child to authorities.

"I want to give the legislators the benefit of the doubt that their idea was not to sweep up victims in this 'failure to protect,' but as the bill is written right now, it does," Watersong says.

Victims aren't the only ones who could face prosecution. Allen Gilbert, executive director of Vermont's American Civil Liberties Union chapter, says even a 16-year-old babysitter could be prosecuted.

"The problem with this provision is that it essentially deputizes every person in the state, regardless of age, gender or knowledge," he says, noting that Vermont already requires trained professionals, such as teachers and doctors, to report abuse.

The bill's expanded definition of harm, he says, could be applied to any number of non-abusers, including parents who illegally obtain pain medication or smoke pot.

"What do you do with parents who choose not have their children vaccinated, who in many people's eyes are putting those children in harm's way because they could contract illness?" he wonders. "Are we going to charge each of those parents? Or what about the school nurse who has a list of children whose vaccinations are not current?"

Ayer and Sears say they hear their critics loud and clear.

"We don't want everyone who smokes a joint to think they're going to go to jail," Ayer says. "We want there to be a responsibility for parents to have their wits about them — to be responsible."

Both claim they included the "failure to protect" language at Sorrell's behest — and are perfectly willing to soften it.

"He came in July and proposed we do this, and I will admit what we put in the bill is very broad and needs to be narrowed down," Sears says.

While he's not sure precisely what changes he'll make, Sears says one thing's for sure: "Things never go as fast as you hope, and maybe that's a good thing."

Campaign Creatures

If Sen. Bernie Sanders (I-Vt.) finally decides to run for president, he won't be the only Vermonter playing an important role in the 2016 campaigns.

Norwich native Robby Mook is all but certain to serve as Hillary Clinton's campaign manager for her all-but-certain second run for the White House, according to recent reports in POLITICO, the Hill and the Washington Post.

As we noted in a September 2013 profile, Mook got his start working for the Vermont Democratic House Campaign and then ran the 2002 Democratic coordinated campaign back when Doug Racine faced off against Jim Douglas for governor. More recently, the 35-year-old helmed Clinton's successful efforts in Nevada, Ohio and Indiana during her 2008 campaign and managed Clinton pal Terry McAuliffe's 2013 bid for governor.

Mook, not surprisingly, did not respond to a request for comment and has not confirmed his new gig to other news outlets.

In other Vermont political alumni news, Sen. Rob Portman (R-Ohio) announced last week that he's hired Republican operative Corry Bliss to run his reelection campaign.

Local politicos will remember Bliss for the hard-charging tactics he employed running then-lieutenant governor Brian Dubie's unsuccessful 2010 gubernatorial campaign. Bliss has lost a couple of high-profile races since, but he was credited with helping to salvage Sen. Pat Roberts' (R-Kansas) imperiled campaign last fall.

Chronicling it all will be POLITICO Magazine's newly named top editor: Garrett Graff. The Montpelier native famously created Howard Dean's first website back when he was still in high school. He took over Washingtonian magazine at the ripe young age of 28 and spent five years in that role before joining POLITICO last summer as a senior writer.

Graff's most important biographical detail? He's the son of Chris Graff — the Associated Press' longtime Montpelier bureau chief and now vice president for communications up the hill at National Life.

"I'm thrilled to be taking over the magazine," Graff the younger says. "I don't think there's a more exciting or ambitious newsroom in the country right now than POLITICO. The chance to be part of that and helping lead the magazine into just its second full year is as great a job in journalism as I could imagine."

Media Notes

Digital First Media is closing in on a sale of its 76 daily and 160 weekly newspapers, industry analyst Ken Doctor wrote in Capital New York last weekend. Among the final bidders, he says: private equity firms Cerberus Capital Management and Apollo Global Management.

Here's why you should care: DFM's properties include Vermont's most southerly daily newspapers, the Brattleboro Reformer and the Bennington Banner, as well as the weekly Manchester Journal.

It's unclear what a change in ownership will mean for the papers, which have been cut to the bone in recent years by a series of corporate owners. Just last week, when the company promoted Reformer executive editor Tom D'Errico to a new content marketing position within its New England Newspapers, Inc. division, it put the Banner's managing editor, Michelle Karas, in charge of both papers.

Both Karas and D'Errico say they're confident a single editor can run two newsrooms 40 miles and one mountain range apart.

"I'm hoping so," Karas says.

Speaking of corporate media, the Burlington Free Press has actually hired a new reporter. Last fall, the Gannett daily lost at least six editorial staffers to layoffs, voluntary departures and a retirement. But last week, according to a tweet by associate editor Adam Silverman, it hired Lafayette Journal & Courier reporter and recent University of Nebraska-Lincoln grad Haley Dover to cover Chittenden County.

"It's a beautiful state and seems like a great place to work and live," Dover says. "I look forward to covering a wide-range of stories and getting to know my new colleagues."

Lastly, an attempt by Montpelier's twice-monthly newspaper to secure a $27,254 city appropriation failed last week after the city council voted against putting the question on the Town Meeting Day ballot.

As we reported online last week, the Bridge's editor and publisher, Nat Frothingham, turned in a petition with close to 700 signatures Thursday requesting a one-time cash injection to keep the 21-year-old independent paper in business. But citing advice from city attorney Paul Giuliani, councilors said it would be inappropriate for the capital city to direct money to a for-profit entity — and they unanimously rejected the request.

Disclosure: Paul Heintz worked at the Reformer from February 2007 through March 2008.

The original print version of this article was headlined "The Kids Aren't Alright"