Senate Bill No. 285
(By Senators Manchin, Chernenko, Felton,
Whitlow and Blatnik)
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[Introduced March 4, 1993; referred to the Committee
on the Judiciary.]
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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) "Abuse" means the infliction upon a minor of physicalinjury on a child 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) "Neglect" means the unreasonable failure by a parent,
guardian, or any person voluntarily accepting a supervisory role
towards a minor child to exercise a minimum degree of care to
assure said minor child's physical safety or health.
(7) "Neglected child" means any child whose parent,
guardian, custodian or other person responsible for the child'swelfare withholds or denies nourishment or medically indicated
treatment, including food or care denied solely on the basis of
present or anticipated mental or physical impairment as
determined by a physician acting alone or in consultation with
other physicians 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; or who is a newborn infant whose blood or urine
contains any amount of a controlled substance or a metabolite
thereof, not prescribed by a licensed physician for the mother.
A child is not considered neglected or abused for the sole reason
the child's parent, guardian, custodian or other person
responsible for his or her welfare depends upon spiritual means
through prayer alone for the treatment or cure of disease or
remedial care. A child is not considered neglected or abused
solely because the child is not attending school.
(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 or guardian, whether for financialgain 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) (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.
§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 a
child 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, custodian or other person
responsible for the child's welfare, 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 less than thirty days nor 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 primarily
to 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 thecare, 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.
NOTE: The purpose of this bill is to define the term
"neglected child" and to provide a penalty for causing a child to
be a neglected child.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.