H. B. 4572
(By Delegate Howard (By Request))
[Introduced
February 20, 2004
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §49-1-3 of the code of West Virginia,
1931, as amended; and to amend said code by adding thereto a
new section, designated §49-2-18, all relating to child abuse
or neglect placement; automatically awarding permanent custody
to the person or persons that provide the necessary food,
shelter, supervision, medical service or education of a child,
when the parent, guardian or custodian does not provide at
least sixty percent of these necessities for a continuous
six-month period; and amending definition of a neglected
child.
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; and that said code be amended by adding
thereto a new section, designated §49-2-18, all 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:
(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.
(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 at least sixty
percent of the 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 an ongoing illness that is
curable; 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.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE OF
CHILDREN.
§49-2-18. When permanent custody is automatically awarded.
Notwithstanding any provision of this code to the contrary,
any parent, guardian or custodian that fails to provide his or her
child with at least sixty percent of the necessary food, shelter,
supervision, medical service or education for a continuous
six-month period, then the child is considered a neglected child,
and permanent custody shall be automatically awarded to the person
or persons that do provide the necessary food, shelter,
supervision, medical service or education, if the person or persons
desire: Provided, That the reason for the parent, guardian or
custodian fails to provide at least sixty percent of these
necessities for a continuous six-month period is not because of a
lack of financial resources or because of an ongoing illness that
is curable.
NOTE: The purpose of this bill is to automatically award
permanent custody to the person or persons that provide the
necessary food, shelter, supervision, medical service or education
for a child, when the parent, guardian or custodian does not
provide at least sixty percent of these necessities for a
continuous six-month period.
§49-2-18 is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.