H. B. 2093
(By Delegate Spencer)
[Introduced February 10, 1993; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section three, article one, chapter
forty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to amend and reenact section
one, article two of said chapter forty-nine; and to further
amend said article two by adding thereto a new section,
designated section eighteen, all relating to the definition
of child neglect and abuse; and home-based family
preservation services in cases involving drug, alcohol or
substance abuse.
Be it enacted by the Legislature of West Virginia:
That section three, article one, chapter forty-nine of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section one, article two
of said chapter forty-nine, be amended and reenacted; and that
said article two be further amended by adding thereto a new
section, designated section eighteen, all to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
(a) "Abused child" means a child or newborn infant 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 substantial 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, substantial mental or emotional injury,
sexual abuse, sexual exploitation, sale or attempted sale, or
negligent treatment or maltreatment of a child or newborn infant
by a parent, guardian, or custodian who is responsible for the
child's or newborn infant's welfare, under circumstances which
harm or threaten the health and welfare of the child; orcircumstances and evidence indicating that there is a substantial
likelihood that neglect or abuse of a newborn infant remaining in
the hospital is substantially likely to occur.
(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 restore such children to their families;
(5) Placing children in suitable adoptive homes when
restoring the children to their families is not possible or
appropriate; and
(6) Assuring the adequate care of children away from their
families when the children 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 thehome 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; or
(2) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered
child syndrome; or
(3) Nutritional deprivation; or
(4) Abandonment by the parent, guardian or custodian; or
(5) Inadequate treatment of serious illness or disease; or
(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) "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, 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 addressesthe general problem of child abuse and neglect in a given
community, and may consist of several multidisciplinary teams
with different functions.
(g) (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.
(h) "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.
(i) "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 factthat 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; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(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; or
(ii) Sexual intrusion; or
(iii) Sexual contact; or
(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.
(j) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of
this code.
(k) "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.
(l) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-
one of this code.
(m) "Sexual intrusion" means sexual intrusion as that term
is defined in section one, article eight-b, chapter sixty-one of
this code.
(n) "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.
(o) "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.
ARTICLE 2. STATE RESPONSIBILITIES FOR THE PROTECTION AND CARE
OF CHILDREN.
§49-2-1. Care for children committed to the state department;
temporary custodial care in cases of drug, alcohol
or substance abuse.
It shall be the responsibility of the state department to
provide care for neglected children who are committed to its care
for custody or guardianship and for children and newborn infants
who are in need of temporary custodial care or in-home assistance
due to parental drug, alcohol or controlled substance abuse. The
state department may provide care for such children and newborn
infants in family homes meeting required standards, at board or
otherwise, through a licensed child welfare agency, or in a state
institution providing care for dependent or neglected children.
The department in placing any child or newborn infant in the care
of a family or a child welfare agency shall select as far as
practicable a family holding the same religious belief as the
parents or relatives of the child or newborn infant or a child
welfare agency conducted under religious auspices of the same
belief as the parents or relatives.
§49-2-18. Home-based family preservation services in cases
involving drug, alcohol or substance abuse.
(a) It shall be the duty of the division of human services
to provide "home-based family preservation services," as defined
in section two, article two-d of this chapter to families of
those children and newborn infants whose health, safety and
welfare are substantially jeopardized due to drug, alcohol or
controlled substance abuse. Such services shall include specialinstruction as to infant care and parenting skills.
(b) Such services will become available upon the request of
the treating physician or physicians and representatives of the
division of human services familiar with the affected family.
(c) If such parents require rehabilitation away from the
home, it will be the duty of the division to provide temporary
custodial care, as described in section one, article two-d of
this chapter, for any child or children living in the home, or
for any newborn who has not yet been taken to the home. Such
temporary care shall be of the duration of the parent's
rehabilitation program.
(d) Such services shall not be required when the child or
newborn infant appears in imminent danger of serious bodily or
serious emotional injury. In such instances, the division shall
take proper and necessary action to remove such child or newborn
from the home in accordance with the requirements of this
chapter.
(e) For these limited purposes, the division is authorized
to use available appropriate funds for such intervention service,
but only to the extent that such moneys would normally be
available for the removal and placement of the particular child
or children or newborn at risk.
NOTE: The purpose of this bill is to expand the definition
of "child abuse and neglect" to include potential harm that may
occur to newborn infants before being returned to the home; to
provide for home-based family preservation services in homeswhere children or newborn infants are affected by parents
suffering from drug, alcohol or substance abuse; temporary
custodial care; and removal in cases of imminent danger.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§49-2-18 is new; therefore, strike-throughs and underscoring
have been omitted.