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.