COMMITTEE SUBSTITUTE

FOR

H. B. 2484

(By Delegates Love, Pettit, L. White, Higgins,
Lindsey, Varner and Tribett)


(Originating in the House Committee on the Judiciary)


[April 1, l993]

A BILL to amend and reenact sections one and four, article eight- d, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to child abuse and neglect; defining neglected child; and providing a penalty for causing a child to be a neglected child.

 Be it enacted by the Legislature of West Virginia:
That sections one and four, article eight-d, chapter sixty- one of the code of West Virginia, one thousand nine hundred thirty-one, 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) "Abandonment" means the willful and intentional act of leaving a child unattended for an unreasonable amount of time by any other parent or guardian or adult custodian or responsibleminor and under such circumstances that a reasonable person would find that such abandonment may cause physical, mental or emotional injury to the child or would deprive or threaten to deprive the child of necessary food, clothing or shelter.
(1) (2) "Abuse" means the infliction upon a minor of physical injury on a child by other than accidental means.
(2) (3) "Child" means any person under eighteen years of age not otherwise emancipated by law.
(3) (4) "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) (5) "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) (6) "Guardian" means a person who has care and custody of a child as the result of any contract, agreement or legal proceeding.
(6) (7) "Neglect" means the unreasonable failure by a parent, guardian, or any person voluntarily accepting a supervisory role towards a minor child to exercise a minimumdegree of care to assure said minor child's physical safety or health.
(7) (8) "Neglected child" means any child whose parent, guardian, custodian or other person responsible for the child's welfare withholds or denies nourishment or medical treatment: Provided, That the decision to consent, refuse or withdraw any and all medical treatment or diagnostic procedures, including but not limited to life-prolonging intervention when in the opinion of two physicians who have examined the child, one of whom is the child's attending physician, such life-prolonging intervention offers no medical hope of benefit; or otherwise does not provide the proper or necessary support or medical or other remedial care recognized under state law as necessary for a child's well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter; or who is abandoned by his or her parents, guardian, custodian or other person responsible for the child's welfare.
A child is not considered neglected or abused solely because:
(i) the child is not attending school;
(ii) if the neglect by a parent, guardian or custodian is due primarily to a lack of financial means of that parent, guardian or custodian;
(iii) the parent, guardian or custodian failed to place the child in a child passenger safety device or seat belt as required by sections forty-six and forty-nine, article fifteen, chapter seventeen-c of this code;
(iv) a noncustodial parent or guardian fails to pay childsupport to the custodial parent or guardian.
(7) (9) "Parent" means the biological father or mother of a child, or the adoptive mother or father of a child.
(8) (10) "Sexual contact" means sexual contact as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(9) (11) "Sexual exploitation" means an act whereby:
(A) 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; or
(B) 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.
(10) (12) "Sexual intercourse" means sexual intercourse as that term is defined in section one, article eight-b, chapter sixty-one of this code.
(11) (13) "Sexual intrusion" means sexual intrusion as that term is defined in section one, article eight-b, chapter sixty- one of this code.
§61-8D-4. Child neglect resulting in injuries; criminal penalties; causing a child to be a neglected child; criminal penalties.

(a) If any parent, guardian or custodian shall neglect achild and by such neglect cause said 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 one hundred nor more than one thousand dollars or imprisoned in the penitentiary 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.
(b) If any parent, guardian or custodian shall neglect a child and by such neglect 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 guilty of a felony, and, upon conviction thereof, shall be fined not less than three hundred nor more than three thousand dollars or imprisoned in the penitentiary not less than one nor more than ten years, or both such fine and imprisonment.
(c) If any parent, guardian, adult custodian or other person responsible for the child's welfare, intentionally, or by willful and wanton acts or omissions, causes the child to be a neglected child as defined in section one of this article, then the parent, guardian, custodian or other person responsible for the child's welfare is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the county jail for not more than one year.
(c) (d) The provisions of this section shall not apply if the neglect by the parent, guardian or custodian is due primarilyto a lack of financial means on the part of such parent, guardian or custodian.
(d) (e) 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.