H. B. 2201
(By Delegates Ashley and Boggs)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-6-5b of the Code of West Virginia,
1931, as amended; and to amend and reenact §61-8D-1 and
§61-8D-4 of said code, all relating to child abuse and
neglect; providing additional conditions for which the
Department of Health and Human Resources is mandated to file
a petition to terminate parental rights; extending the
definition of neglect to include cohabiting with registered
sex offenders; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That §49-6-5b of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §61-8D-1 and §61-8D-4 of said
code be amended and reenacted, all to read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-5b. When efforts to terminate parental rights required.
(a) Except as provided in subsection (b) of this section, the
department shall file or join in a petition or otherwise seek a
ruling in any pending proceeding to terminate parental rights:
(1) If a child has been in foster care for fifteen of the most
recent twenty-two months as determined by the earlier of the 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 the home;
(2) If a court has determined the child is abandoned; or
(3) If a court has determined the parent has committed murder
or voluntary manslaughter of another of his or her children or the
other parent of his or her children; has attempted or conspired to
commit such murder or voluntary manslaughter or has been an
accessory before or after the fact of either crime; has committed
unlawful or malicious wounding resulting in serious bodily injury
to the child, or to another of his or her children or to the other
parent of his or her children; or, the parental rights of the
parent to a sibling have been terminated involuntarily; or
_____(4) If a child has been living in the home of a person who is
a registered sex offender under the terms of article twelve,
chapter fifteen of this code.
(b) The department may determine not to file a petition to
terminate parental rights when:
(1) At the option of the department, the child has been placed
with a relative;
(2) The department has documented in the case plan made
available for court review, a compelling reason including, but not
limited to, the child's age and preference regarding termination or
the child's placement in custody of the department based on any
proceedings initiated under article five of this chapter, that
filing the petition would not be in the best interests of the
child; or
(3) The department has not provided, when reasonable efforts
to return a child to the family are required, the services to the
child's family as the department deems necessary for the safe
return of the child to the home.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8D. CHILD ABUSE.
§61-8D-1. Definitions.
In this article, unless a different meaning plainly is
required:
(1) "Abuse" means the infliction upon a minor of physical
injury by other than accidental means.
(2) "Child" means any person under eighteen years of age not
otherwise emancipated by law.
(3) "Controlled substance" means controlled substance as that
term is defined in subsection (d), section one hundred one, article one, chapter sixty-a of this code.
(4) "Custodian" means a person over the age of fourteen years
who has or shares actual physical possession or care and custody of
a child on a full-time or temporary basis regardless of whether
such person has been granted custody of the child by any contract,
agreement or legal proceeding. "Custodian" shall also include, but
not be also includes, but is not limited to, the spouse of a
parent, guardian or custodian or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife where
such spouse or other person shares actual physical possession or
care and custody of a child. with the parent, guardian or
custodian.
(5) "Guardian" means a person who has care and custody of a
child as the result of any contract, agreement or legal proceeding.
(6) "Neglect" means the unreasonable failure by a parent,
guardian or any person voluntarily accepting a supervisory role
towards a minor child to exercise a minimum degree of care to
assure said minor child's physical safety or health. "Neglect"
includes cohabitation by a parent, guardian or custodian with a
person who is a registered sex offender under article twelve,
chapter fifteen of this code.
(7) "Parent" means the biological father or mother of a child
or the adoptive mother or father of a child.
(8) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this
code.
(9) "Sexual exploitation" means an act whereby:
(A) A parent, custodian, guardian or other person in a
position of trust to a child, whether for financial gain or not,
persuades, induces, entices or coerces the child to engage in
sexually explicit conduct as that term is defined in section one,
article eight-c, chapter sixty-one of this code; or
(B) A parent, guardian, custodian or other person in a
position of trust in relation to a child persuades, induces,
entices or coerces the child to display his or her sex organs for
the sexual gratification of the parent, guardian, custodian, person
in a position of trust or a third person or to display his or her
sex organs under circumstances in which the parent, guardian,
custodian or other person in a position of trust knows such display
is likely to be observed by others who would be affronted or
alarmed.
(10) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(11) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(12) A "person in a position of trust in relation to a child"
refers to any person who is acting in the place of a parent and
charged with any of a parent's rights, duties or responsibilities
concerning a child or someone responsible for the general
supervision of a child's welfare or any person who by virtue of
their occupation or position is charged with any duty or
responsibility for the health, education, welfare or supervision of
the child.
§61-8D-4. Child neglect resulting in injury; child neglect
creating risk of injury; criminal penalties.
(a) If any parent, guardian or custodian shall neglect
neglects a child and by such neglect cause said child causes bodily
injury as such term is defined in section one, article eight-b of
this chapter, then such parent, guardian or custodian shall be is
guilty of a felony and, upon conviction thereof, shall be fined not
less than one hundred nor more than one thousand dollars or
committed to the custody of the Division of Corrections $100 nor
more than $1,000 or imprisoned in a state correctional facility for
not less than one nor more than three years or, in the discretion
of the court, be confined in the county jail for not more than one
year, or both such fine and confinement or imprisonment. fined and
confined.
(b) If any parent, guardian or custodian shall neglect neglects a child and by such neglect cause said child causes
serious bodily injury as such term is defined in section one,
article eight-b of this chapter, then such parent, guardian or
custodian shall be is guilty of a felony and, upon conviction
thereof, shall be fined not less than three hundred nor more than
three thousand dollars or committed to the custody of the Division
of Corrections $300 nor more than $3,000 or imprisoned in a state
correctional facility for not less than one nor more than ten
years, or both such fine and imprisonment.
(c) The provisions of this section shall do not apply if the
neglect by the parent, guardian or custodian is due primarily to a
lack of financial means on the part of such parent, guardian or
custodian except when the parent, guardian or custodian is
cohabiting with a registered sex offender under the terms of
article twelve, chapter fifteen of this code.
____________________________________________(d) The provisions of this section shall do not apply to any
a parent, guardian or custodian who fails or refuses, or allows
another person to fail or refuse, to supply a child under the care,
custody or control of such parent, guardian or custodian with
necessary medical care when such medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such parent, guardian or custodian is an adherent or
member.
(e) Any A person who grossly neglects a child and by the gross
neglect creates a substantial risk of serious bodily injury or of
death to the child, is guilty of a felony and, upon conviction
thereof, shall be fined not more than three thousand dollars and
confined to the custody of the Division of Corrections $3,000 and
imprisoned in a state correctional facility for not less than one
nor more than five years.
NOTE: The purpose of this bill is to provide additional
conditions for which the Department of Health and Human Resources
is mandated to file a petition to terminate parental rights. It
extends the definition of neglect to include cohabiting with
registered sex offenders. And, the bill clarifies to whom felony
criminal penalties apply when violations occur.
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.