H. B. 4009
(By Delegates Mahan, Houston, Leach,
Perdue, Stephens, Ashley and Howard)
[Introduced January 11, 2006; referred
to the Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended, relating to the definitions relating to
child abuse and neglect.
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.;
(4) A parent who subjects the fetus to prenatal exposure to
abusive use of alcohol or any controlled drug or substance not
prescribed by a health practitioner; or
(5) A parent, guardian, or custodian who knowingly exposes
the child to an environment that is being used for the
manufacture, use, or distribution of methamphetamines or any other
illegally manufactured controlled drug or substance.
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:
(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.;
(8) prenatal exposure of the child to abusive use of alcohol
or any controlled drug or substance
; or
(9) exposure by the parent, guardian, or custodian of the
child to an environment that is being used for the manufacture,
use, or distribution of methamphetamines or any other illegally
manufactured controlled drug or substance.
(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 the bill is to expand the definition of child
abuse and neglect to include parents who expose their child prenatally
to abusive use of alcohol or any controlled drug or
substance
;
or who expose their child to locations where illicit
drugs or substances are manufactured.