Senate Bill No. 236
(By Senators Prezioso, Barnes, Unger, Jenkins, Oliverio, Dempsey
and Love)
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[Introduced January 23, 2006; referred to the Committee
on Health and Human Resources.]
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A BILL to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended, relating to the expansion of the
definition of "imminent danger to the physical well-being of
the child" with regard to child abuse and neglect to include
alcohol and substance abuse on the part of the parent or
parents.
Be it enacted by the Legislature of West Virginia:
That §49-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(1) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(2) Sexual abuse or sexual exploitation; or
(3) The sale or attempted sale of a child by a parent,
guardian or custodian in violation of section sixteen, article
four, chapter forty-eight of this code.
In addition to its broader meaning, physical injury may
include an injury to the child as a result of excessive corporal
punishment.
(b) "Abusing parent" means a parent, guardian or other
custodian, regardless of his or her age, whose conduct, as
alleged in the petition charging child abuse or neglect, has been
adjudged by the court to constitute child abuse or neglect.
(c) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent
treatment or maltreatment of a child by a parent, guardian or
custodian who is responsible for the child's welfare, under
circumstances which harm or threaten the health and welfare of
the child.
(d) "Child abuse and neglect services" means social services
which are directed toward:
(1) Protecting and promoting the welfare of children who are abused or neglected;
(2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(3) Preventing the unnecessary removal of children from
their families by identifying family problems and assisting
families in resolving problems which could lead to a removal of
children and a breakup of the family;
(4) In cases where children have been removed from their
families, providing services to the children and the families so
as to reunify such children with their families;
(5) Placing children in suitable adoptive homes when
reunifying the children with their families is not possible or
appropriate; and
(6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(e) "Imminent danger to the physical well-being of the
child" means an emergency situation in which the welfare or the
life of the child is threatened. Such emergency situation exists
when there is reasonable cause to believe that any child in the
home is or has been sexually abused or sexually exploited, or
reasonable cause to believe that the following conditions
threaten the health or life of any child in the home including,
but not limited to:
(1) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling or a babysitter or other caretaker;
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered
child syndrome;
(3) Nutritional deprivation;
(4) Abandonment by the parent, guardian or custodian;
(5) Inadequate treatment of serious illness or disease;
(6) Substantial emotional injury inflicted by a parent,
guardian or custodian; or
(7) Sale or attempted sale of the child by the parent,
guardian or custodian; or
(8) The abusing parent or parents have habitually abused or
are addicted to alcohol, controlled substances or drugs, to the
extent that proper parenting skills have been seriously impaired.
(f) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the
circuit court having jurisdiction over the child, pursuant to the
provisions of chapters forty-eight and forty-nine of this code.
(g) "Multidisciplinary team" means a group of professionals
and paraprofessionals representing a variety of disciplines who
interact and coordinate their efforts to identify, diagnose and
treat specific cases of child abuse and neglect.
Multidisciplinary teams may include, but are not limited to,
medical, educational, child care and law-enforcement personnel, social workers, psychologists and psychiatrists. Their goal is
to pool their respective skills in order to formulate accurate
diagnoses and to provide comprehensive coordinated treatment with
continuity and follow-up for both parents and children.
"Community team" means a multidisciplinary group which addresses
the general problem of child abuse and neglect in a given
community and may consist of several multidisciplinary teams with
different functions.
(h) (1) "Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened
by a present refusal, failure or inability of the child's parent,
guardian or custodian to supply the child with necessary food,
clothing, shelter, supervision, medical care or education, when
such refusal, failure or inability is not due primarily to a lack
of financial means on the part of the parent, guardian or
custodian; or
(B) Who is presently without necessary food, clothing,
shelter, medical care, education or supervision because of the
disappearance or absence of the child's parent or custodian;
(2) "Neglected child" does not mean a child whose education
is conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(i) "Parenting skills" means a parent's competencies in
providing physical care, protection, supervision and psychological support appropriate to a child's age and state of
development.
(j) "Sexual abuse" means:
(A) As to a child who is less than sixteen years of age, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have willingly participated in such conduct or
the fact that the child may have suffered no apparent physical
injury or mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(B) As to a child who is sixteen years of age or older, any
of the following acts which a parent, guardian or custodian shall
engage in, attempt to engage in, or knowingly procure another
person to engage in, with such child, notwithstanding the fact
that the child may have consented to such conduct or the fact
that the child may have suffered no apparent physical injury or
mental or emotional injury as a result of such conduct:
(i) Sexual intercourse;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(C) Any conduct whereby a parent, guardian or custodian displays his or her sex organs to a child, or procures another
person to display his or her sex organs to a child, for the
purpose of gratifying the sexual desire of the parent, guardian
or custodian, of the person making such display, or of the child,
or for the purpose of affronting or alarming the child.
(k) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.
(l) "Sexual exploitation" means an act whereby:
(1) A parent, custodian or guardian, whether for financial
gain or not, persuades, induces, entices or coerces a child to
engage in sexually explicit conduct as that term is defined in
section one, article eight-c, chapter sixty-one of this code;
(2) A parent, guardian or custodian persuades, induces,
entices or coerces a child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian or a
third person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows
such display is likely to be observed by others who would be
affronted or alarmed.
(m) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter
sixty-one of this code.
(n) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of
this code.
(o) "Parental rights" means any and all rights and duties
regarding a parent to a minor child, including, but not limited
to, custodial rights and visitational rights and rights to
participate in the decisions affecting a minor child.
(p) "Placement" means any temporary or permanent placement
of a child who is in the custody of the state in any foster home,
group home or other facility or residence.
(q) "Serious physical abuse" means bodily injury which
creates a substantial risk of death, which causes serious or
prolonged disfigurement, prolonged impairment of health or
prolonged loss or impairment of the function of any bodily organ.
(r) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by
the same parents or parent.
(s) "Time-limited reunification services" means individual,
group, and family counseling, inpatient, residential or
outpatient substance abuse treatment services, mental health
services, assistance to address domestic violence, services
designed to provide temporary child care and therapeutic services
for families, including crisis nurseries and transportation to or
from any such services, provided during fifteen of the most
recent twenty-two months a child has been in foster care, as determined by the earlier date of the first judicial finding that
the child is subjected to abuse or neglect, or the date which is
sixty days after the child is removed from home.
NOTE: The purpose of this bill is to expand the definition
of "Imminent danger to the physical well-being of the child" with
regard to child abuse and neglect to include alcohol and
substance abuse on the part of the parent or parents.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.