In the wake of two Oregon day care deaths in as many months late last year one might have thought that it would be a simple thing to build momentum in the legislature for reform and increased oversight, but in politics things are rarely that simple.
Earlier this month The Oregonian reported that Governor Kate Brown’s initiative to “beef up oversight of day cares” was receiving a “tepid response” in Salem. The paper reports that “the proposal would increase maximum fines for rule-breaking day cares while closing a licensing loophole that can allow bad providers to escape consequences.” At an Oregon House hearing, however, “committee members questioned if the state’s bid to create 14 new positions would actually move the needle and help ensure kids are safe.”
When the legislature does not move as quickly as it should, it is worth remembering that even without changes to current law our courts offer powerful tools for protecting children and enforcing accountability. For example, ORS 163.545 is a relatively short statute defining second-degree child neglect. This is criminal law but when it is invoked it also opens the legal door to civil actions.
The statute defines “Child Neglect in the Second Degree” as “leaving the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of the child.” In addition, Section 418 of Oregon’s legal code offers a series of definitions and policies designed to make it clearer when and how the law can act to protect children. Among the many issues covered in Section 418 are the circumstances and procedures state and local officials can use for removing a child from their home, how needy children are to be handled by the Department of Human Services and the procedures for conducting criminal background checks on people applying to work in child care. When combined with the sections of the Oregon Revised Statutes covering criminal conduct these represent a powerful tool for enforcing accountability in both civil and criminal courts.
Using ORS 163.545 and the definitions in Section 418, an Oregon attorney can argue that the much broader category of activity defined by the state department of Human Services as “abuse and neglect” is also covered by the statute. This, in turn, makes it easier for people who have suffered a loss to seek justice through the courts rather than relying solely on the administrative procedures used by state government departments.
As a Portland lawyer whose practice has long focused on protecting children I often advise people who believe that the state regulatory system is not working as aggressively as it should. When used properly, however, this is often not the case. An experienced attorney can offer families reeling from a tragedy a mechanism for achieving justice. The laws that agencies are charged with enforcing remain in place whether or not the agency is in a position to pursue allegations of neglect and abuse. At a time when state agencies struggle to carry out all of their oversight duties it is critical for parents to know that the courts can take up that oversight role when circumstances require.
The Oregonian: Oregon’s plan for more childcare regulators still ‘substandard’ lawmaker says
Oregon Department of Human Services: Child Abuse & Neglect