COMMITTEE SUBSTITUTE

FOR

H. B. 4005

(By Delegates L. Phillips, Rowan, Fleischauer,

Border, Lawrence, Guthrie, P. Smith, Marshall and Poore)

(Originating in the House Committee on Finance)

[February 21, 2014]

A BILL to amend and reenact §61-8D-1, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, relating to offenses of child neglect by a parent, guardian or custodian; defining terms; making it a felony for a parent, guardian or custodian to grossly neglect a child which creates substantial risk of bodily injury; creating a misdemeanor offense for child neglect by a parent, guardian or custodian which creates a substantial risk of bodily injury; establishing misdemeanor penalties for first or second offenses; making third or subsequent offenses of child neglect that creates a substantial risk of bodily injury a felony; establishing criminal penalties; providing that a parent, guardian or custodian convicted of a misdemeanor is not required to register as a person convicted of child abuse or neglect.

Be it enacted by the Legislature of West Virginia:

    That §61-8D-1, §61-8D-4 and §61-8D-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

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 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) “Gross neglect” means reckless or intentional conduct, behavior or inaction by a parent, guardian or custodian that evidences a clear disregard for a minor child’s health, safety or welfare.

    (6)(7) "Neglect" means the unreasonable, reckless or intentional failure by a parent, guardian or any person voluntarily accepting a supervisory role towards custodian of a minor child to exercise a minimum degree of care to assure said the minor child's physical safety or health. For purposes of this article, the following do not constitute “neglect” by a parent, guardian or custodian:

    (A) Permitting a minor child to participate in lawful activities that if done properly or under proper supervision are not inherently dangerous, regardless of whether that participation creates a risk of bodily injury;

    (B) Exercising discretion in choosing a lawful method of educating a minor child; or

    (C) Exercising discretion in making decisions regarding the nutrition and medical care provided to a minor child based upon religious conviction or reasoned personal belief.

    (7)(8) "Parent" means the biological father or mother of a child, or the adoptive mother or father of a child.

    (8)(9) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (9)(10) "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)(11) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (11)(12) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty-one of this code.

    (12)(13) 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 a parent, guardian or custodian shall neglect neglects a child and by such neglect cause said causes a child bodily injury, as such term is defined in section one, article eight-b of this chapter, then such the parent, guardian or custodian shall be is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 dollars or committed to the custody of the Division of Corrections 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 or imprisoned.

    (b) If any a parent, guardian or custodian shall neglect neglects a child and by such neglect cause said the child serious bodily injury, as such term is defined in section one, article eight-b of this chapter, then such the parent, guardian or custodian shall be is guilty of a felony and, upon conviction thereof, shall be fined not less than $300 nor more than $3,000 dollars or committed to the custody of the Division of Corrections imprisoned in a state correctional facility for not less than one nor more than ten years, or both such fine and imprisonment fined and imprisoned.

    (c) If a parent, guardian or custodian grossly neglects a child and by that gross neglect creates a substantial risk of serious bodily injury, as defined in section one, article eight-b of this chapter, or of death to the child, then the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000 dollars or imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and confined.

    (d) If a parent, guardian or custodian neglects a child and by that neglect creates a substantial risk of bodily injury, as defined in section one, article eight-b of this chapter, to the child, then the parent, guardian or custodian, is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be fined not less than $100 nor more than $1,000 or confined in jail not less than thirty days nor more than six months or both fined and confined. Any person convicted of a first offense under this subsection may also be required to complete parenting classes, substance abuse counseling, anger management counseling, or other appropriate services, or any combination thereof, as determined as necessary through a family functioning assessment conducted by Department of Health and Human Resources, Bureau for Children and Families. For a second offense, the parent, guardian or custodian is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 and confined in jail not less than thirty days nor more than one year. For a third or subsequent offense, the parent, guardian or custodian is guilty of a felony and, upon conviction thereof, shall be fined not more than $2,000 or imprisoned in a state correctional facility not less than one year nor more than three years, or both fined and confined.

    (c)(e) The provisions of this section shall 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.

    (f) Any person convicted of a misdemeanor offense under this section shall not, by virtue of such conviction:

    (1) Be declared to be an abusive parent pursuant to the provisions of section nine of this article;

    (2) Be required to register pursuant to the requirements of article thirteen, chapter fifteen of this code; or

    (3) Have their custody, visitation or parental rights automatically restricted.

    (d) The provisions of this section shall not apply to any 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 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 for not less than one nor more than five years.

§61-8D-9. Convictions for offenses against children.

    In any case where a person is convicted of an a felony offense described in this article against a child and the person has custodial, visitation or other parental rights to the child who is the victim of the offense or any child who resides in the same household as the victim, the court shall, at the time of sentencing, find that the person is an abusing parent within the meaning of article six, chapter forty-nine of this code as to the child victim, and may find that the person is an abusing parent as to any child who resides in the same household as the victim, and shall take such further action in accord with the provisions of said article.