Introduced Version
House Bill 2146 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2146
(By Delegates Marshall, Longstreth, Lane,
Moore, Ellington and Barill)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended; to amend and reenact §49-6-3 of said code;
and to amend and reenact §61-8D-3, all relating to conduct and
circumstances of child abuse; creating crime and criminal
penalties for drug and alcohol abuse during pregnancy
resulting in diagnosed harm to infant.
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; that §49-6-3 of said code be amended and
reenacted; and that §61-8D-3 of said code be amended and reenacted,
all to read as follows:
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(1) (a) "Abused child" means a child whose health or welfare
is harmed or threatened by:
(A) (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;
(B) (2) Sexual abuse or sexual exploitation;
(C) (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; or
(D) (4) Domestic violence as defined in section two hundred
two, article twenty-seven, chapter forty-eight of this code;
_____(5) A mother who, during her pregnancy, uses drugs or alcohol
and, as a result, gives birth to an infant who is dependent upon a
controlled substance not the result of medical treatment
administered to the mother or infant or who is diagnosed with fetal
alcohol syndrome or both; or
_____In addition to its broader meaning, physical injury may
include an (6) May include, in addition to its broader meaning,
physical injury to the child as a result of excessive corporal
punishment.
(2) (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.
(3) (c) "Battered parent" means a parent, guardian or other custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of
domestic violence as defined by section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(4) (d) "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.
(5) (e) "Child abuse and neglect services" means social
services which are directed toward:
(A) (1) Protecting and promoting the welfare of children who
are abused or neglected;
(B) (2) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(C) (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;
(D) (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 or some portion
thereof;
(E) (5) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion
thereof, is not possible or appropriate; and
(F) (6) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(6) (f) "Child advocacy center (CAC)" means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:
(A) (1) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for
clients.
(B) (2) Multidisciplinary team (MDT): A multidisciplinary team
for response to child abuse allegations includes representation
from the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(C) (3) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(D) (4) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.
(E) (5) Forensic interviews: Forensic interviews are conducted
in a manner which is of a neutral, fact-finding nature and
coordinated to avoid duplicative interviewing.
(F) (6) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response, either at the CAC or through coordination and
referral with other specialized medical providers.
(G) (7) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.
(H) (8) Victim support/advocacy: Victim support and advocacy
are to be made available as part of the team response, either at
the CAC or through coordination with other providers, throughout
the investigation and subsequent legal proceedings.
(I) (9) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(J) (10) Case tracking: CACs must develop and implement a
system for monitoring case progress and tracking case outcomes for
team components: Provided, That a child advocacy center may
establish a safe exchange location for children and families who
have a parenting agreement or an order providing for visitation or
custody of the children that require a safe exchange location.
(7) (g) "Court appointed special advocate (CASA) program"
means a community organization that screens, trains and supervises
CASA volunteers to advocate for the best interests of children who
are involved in abuse and neglect proceedings. Court appointed
special advocate programs will be operated under the following
guidelines:
(A) (1) Standards: CASA programs shall be members in good
standing with the West Virginia Court Appointed Special Advocate
Association, Inc., and the National Court Appointed Special
Advocates Association and adhere to all standards set forth by
these entities.
(B) (2) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practice.
(C) (3) Cultural competency and diversity: CASA programs
promote policies, practices and procedures that are culturally
competent. "Cultural competency" is defined as the capacity to
function in more than one culture, requiring the ability to appreciate, understand and interact with members of diverse
populations within the local community.
(D) (4) Case management: CASA programs must utilize a uniform
case management system to monitor case progress and track outcomes.
(E) (5) Case review: CASA volunteers meet with CASA staff on
a routine basis to discuss case status and outcomes.
(F) (6) Training: Court appointed special advocates shall
serve as volunteers without compensation and shall receive training
consistent with state and nationally developed standards.
(8) (h) "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:
(A) (1) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(B) (2) A combination of physical and other signs indicating
a pattern of abuse which may be medically diagnosed as battered
child syndrome;
(C) (3) Nutritional deprivation;
(D) (4) Abandonment by the parent, guardian or custodian;
(E) (5) Inadequate treatment of serious illness or disease;
(F) (6) Substantial emotional injury inflicted by a parent,
guardian or custodian;
(G) (7) Sale or attempted sale of the child by the parent,
guardian or custodian; or
(H) The parent, guardian or custodian abuse of alcohol or
drugs or other controlled substance as defined in section one
hundred one, article one, chapter sixty-a of this code, has
impaired his or her parenting skills to a degree as to pose an
imminent risk to a child's health or safety. (8) A blood, urine or
meconium test of the child at birth showing the presence of a
controlled substance or a metabolite of a controlled substance
unless the presence of the substance or the metabolite is the
result of medical treatment administered to the mother or the
infant; or
_____(9) A medical diagnosis of fetal alcohol syndrome at birth.
_____(9) (i)"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 this chapter and chapter forty-eight of this code.
(10) (j) "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 followup 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.
(11) (A) (k) "Neglected child" means a child:
(i) (1) 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
(ii) (2) 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; and
_____(B) (3) "Neglected child" Does not mean a child whose
education is conducted within the provisions of section one,
article eight, chapter eighteen of this code.
(l2) (l) "Parent" means an individual defined has a parent by law or on the basis of a biological relationship, marriage to a
person with a biological relationship, legal adoption or other
recognized grounds.
(13) (m) "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.
(14) (n) "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.
(15) (o) "Sexual abuse" means:
(A) (1) 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) (A) Sexual intercourse;
(ii) (B) Sexual intrusion; or
(iii (C)) Sexual contact;
(B) (2) 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) (A) Sexual intercourse;
(ii) (B) Sexual intrusion; or
(iii (C)) Sexual contact;
(C) (3) 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.
(16) (p) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(17) (q) "Sexual exploitation" means an act whereby:
(A) (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;
(B) (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.
(18) (r) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(19) (s) "Sexual intrusion" means sexual intrusion as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(20) (t) "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.
(21) (u)"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.
(22) (v) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(23) (w) "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.
ARTICLE 6. PROCEDURE IN CASES OF CHILD NEGLECT OR ABUSE.
§49-6-3. Petition to court when child believed neglected or abused
-- Temporary custody.
(a) Upon the filing of a petition, the court may order that
the child alleged to be an abused or neglected child be delivered
for not more than ten days into the custody of the state department
or a responsible person found by the court to be a fit and proper
person for the temporary care of the child pending a preliminary
hearing, if it finds that:
(1) There exists imminent danger to the physical well being of
the child; and
(2) There are no reasonably available alternatives to removal
of the child, including, but not limited to, the provision of
medical, psychiatric, psychological or homemaking services in the
child's present custody: Provided, That where the alleged abusing
person, if known, is a member of a household, the court shall not allow placement pursuant to this section of the child or children
in said home unless the alleged abusing person is or has been
precluded from visiting or residing in said home by judicial order.
(b) In a case where there is more than one child in the home,
or in the temporary care, custody or control of the alleged
offending parent, the petition shall so state, and notwithstanding
the fact that the allegations of abuse or neglect may pertain to
less than all of such children, each child in the home for whom
relief is sought shall be made a party to the proceeding. Even
though the acts of abuse or neglect alleged in the petition were
not directed against a specific child who is named in the petition,
the court shall order the removal of such child, pending final
disposition, if it finds that there exists imminent danger to the
physical well being of the child and a lack of reasonable available
alternatives to removal.
(c) The initial order directing such custody shall contain an
order appointing counsel and scheduling the preliminary hearing,
and upon its service, shall require the immediate transfer of
custody of such child or children to the department or a
responsible relative which may include any parent, guardian, or
other custodian. The court order shall state:
(A) (1) That continuation in the home is contrary to the best
interests of the child and why; and
(B) (2) Whether or not the department made reasonable efforts to preserve the family and prevent the placement or that the
emergency situation made such efforts unreasonable or impossible.
The order may also direct any party or the department to initiate
or become involved in services to facilitate reunification of the
family.
(b) (d) Whether or not the court orders immediate transfer of
custody as provided in subsection (a) of this section, if the facts
alleged in the petition demonstrate to the court that there exists
imminent danger to the child, the court may schedule a preliminary
hearing giving the respondents at least five days' actual notice.
If the court finds at the preliminary hearing that there are no
alternatives less drastic than removal of the child and that a
hearing on the petition cannot be scheduled in the interim period,
the court may order that the child be delivered into the temporary
custody of the department or a responsible person or agency found
by the court to be a fit and proper person for the temporary care
of the child for a period not exceeding sixty days: Provided, That
the court order shall state:
(1) That continuation in the home is contrary to the best
interests of the child and set forth the reasons; therefor;
(2) Whether or not the department made reasonable efforts to
preserve the family and to prevent the child's removal from his or
her home;
(3) Whether or not the department made reasonable efforts to preserve the family and to prevent the placement or that the
emergency situation made such efforts unreasonable or impossible;
and
(4) What efforts should be made by the department, if any, to
facilitate the child's return home. Provided, however, That If the
court grants an improvement period as provided in section twelve of
this article, the sixty-day limit upon temporary custody is waived.
(c) If a child or children shall, in the presence of a child
protective service worker, be in an emergency situation which
constitutes an imminent danger to the physical well being of the
child or children, as that phrase is defined in section three,
article one of this chapter, and if such worker has probable cause
to believe that the child or children will suffer additional child
abuse or neglect or will be removed from the county before a
petition can be filed and temporary custody can be ordered, the
worker may, prior to the filing of a petition, take the child or
children into his or her custody without a court order: Provided,
That after taking custody of such child or children prior to the
filing of a petition, the worker shall forthwith appear before a
circuit judge or a juvenile referee of the county wherein custody
was taken, or if no such judge or referee be available, before a
circuit judge or a juvenile referee of an adjoining county, and
shall immediately apply for an order ratifying the emergency
custody of the child pending the filing of a petition. The circuit court of every county in the state shall appoint at least one of
the magistrates of the county to act as a juvenile referee, who
shall serve at the will and pleasure of the appointing court and
who shall perform the functions prescribed for such position by the
provisions of this subsection. The parents, guardians or
custodians of the child or children may be present at the time and
place of application for an order ratifying custody, and if at the
time the child or children are taken into custody by the worker,
the worker knows which judge or referee is to receive the
application, the worker shall so inform the parents, guardians or
custodians. The application for emergency custody may be on forms
prescribed by the Supreme Court of Appeals or prepared by the
prosecuting attorney or the applicant and shall set forth facts
from which it may be determined that the probable cause described
above in this subsection exists. Upon such sworn testimony or
other evidence as the judge or referee deems sufficient, the judge
or referee may order the emergency taking by the worker to be
ratified. If appropriate under the circumstances, the order may
include authorization for an examination as provided for in
subsection (b), section four of this article. If a referee issues
such an order, the referee shall by telephonic communication have
such order orally confirmed by a circuit judge of the circuit or an
adjoining circuit who shall on the next judicial day enter an order
of confirmation. If the emergency taking is ratified by the judge or referee, emergency custody of the child or children shall be is
vested in the department until the expiration of the next two
judicial days, at which time any such child taken into emergency
custody shall be returned to the custody of his or her parent or
guardian or custodian unless a petition has been filed and custody
of the child has been transferred under the provisions of section
three of this article.
(d) For purposes of the court's consideration of temporary
custody pursuant to the provisions of subsection (a) or (b) of this
section, the department is not required to make reasonable efforts
to preserve the family if the court determines:
(1) The parent has subjected the child, another child of the
parent or any other child residing in the same household or under
the temporary or permanent custody of the parent to aggravated
circumstances which include, but are not limited to, abandonment,
torture, chronic abuse and sexual abuse; or
_____(2) The parental rights of the parent to another child have
been terminated involuntarily; or
_____(2) (3) The parent has:
(A) Committed murder of the child's other parent, guardian or
custodian, another child of the parent or any other child residing
in the same household or under the temporary or permanent custody
of the parent;
(B) Committed voluntary manslaughter of the child's other parent, guardian or custodian, another child of the parent or any
other child residing in the same household or under the temporary
or permanent custody of the parent;
(C) Attempted or conspired to commit such a murder or
voluntary manslaughter or been an accessory before or after the
fact to either such crime;
(D) Committed unlawful or malicious wounding that results in
serious bodily injury to the child, the child's other parent,
guardian or custodian, to another child of the parent or any other
child residing in the same household or under the temporary or
permanent custody of the parent;
(E) Committed sexual assault or sexual abuse of the child, the
child's other parent, guardian or custodian, another child of the
parent or any other child residing in the same household or under
the temporary or permanent custody of the parent; or
(F) Used alcohol or drugs not administered for medical
treatment during pregnancy and, as a result, the infant is born
with the diagnosis of fetal alcohol syndrome or with the presence
of any amount of a controlled substance or a metabolite of a
controlled substance in his or her blood, urine or meconium and
such presence is not the result of medical treatment administered
to the mother; or
(F) (G) Has Been required by state or federal law to register
with a sex offender registry. or
(3) The parental rights of the parent to another child have
been terminated involuntarily.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 8D. CHILD ABUSE.
§61-8D-3. Child abuse resulting in injury; child abuse or neglect
creating risk of injury; criminal penalties.
(a) If any parent, guardian or custodian shall abuse a child
and by such abuse cause such child bodily injury as such term is
defined in section one, article eight-b of this chapter, then such
parent, guardian or custodian shall be guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than
$1,000 and committed to the custody of the Division of Corrections
for not less than one nor more than five years, or in the
discretion of the court, be confined in the county or regional jail
for not more than one year.
(b) If any parent, guardian or custodian shall abuse a child
and by such abuse cause said child 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
$1,000 nor more than $5,000 and committed to the custody of the
Division of Corrections imprisoned in a state correctional facility
not less than two nor more than ten years.
(c) Any person who abuses a child and by the abuse 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 $3,000 and confined to the custody of the Division of
Corrections imprisoned in a state correctional facility for notless
than one nor more than five years.
(d) Any mother who, during her pregnancy, abuses alcohol or
uses drugs not administered for medical treatment and, as a result,
gives birth to an infant diagnosed with fetal alcohol syndrome or
with the presence of any amount of a controlled substance or a
metabolite of a controlled substance in his or her blood, urine or
meconium and such presence is not the result of medical treatment
administered to the mother or the infant, is guilty of a felony
and, upon conviction thereof, shall be fined not less than $100 nor
more than $1,000 and imprisoned in a state correctional facility
for not less than one nor more than five years or, in the
discretion of the court, be confined in jail for not more than one
year.
NOTE: The purpose of this bill is to expressly state drug and
alcohol use during pregnancy by a mother that results in diagnosed
harm to a newborn is actionable in civil child abuse proceedings
and criminal child abuse proceedings, with penalty.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.