H. B. 2109
(By Delegates Love and Pettit)
[Introduced January 10, 1996; referred to the
Committee on the Judiciary.]
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; further defining neglected child;
and providing a criminal 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 physical
injury 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 the 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 the 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 the child's physical safety or health.
(7) "Neglected child" means any child whose parent,
guardian, custodian or other person responsible for the child's
welfare does any of the following:
(A) Withholds from or denies the child 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;
(B) Fails to provide the child with 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
(C) Abandons the child.
"Neglected child" shall also include 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 solely
because: (i) 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; or (ii) 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, custodian or other
person responsible for the child's welfare, whether for financial
gain or not, persuades, induces, entices or coerces a the 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 or other person
responsible for the child's welfare persuades, induces, entices
or coerces a the child to display his or her sex organs for the
sexual gratification of the parent, guardian, custodian or other
person responsible for the child's welfare or a third person, or
to display his or her sex organs under circumstances in which the
parent, guardian, or custodian or other person responsible for
the child's welfare 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
penaltie
s.
(a) If any parent, guardian, or custodian or other person
responsible for the child's welfare shall neglect neglects a
child and by such the neglect cause said causes the child bodily
injury, as such the term is defined in section one, article
eight-b of this chapter, then such the parent, guardian, or
custodian or other person responsible for the child's welfare
shall be is 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 or regional jail for not more than one
year, or both such a fine and confinement or imprisonment.
(b) If any parent, guardian, or custodian or other person
responsible for the child's welfare shall neglect neglects a
child and by such the neglect cause said causes the child serious
bodily injury, as such the term is defined in section one,
article eight-b of this chapter, then such the parent, guardian, or custodian or other person responsible for the child's welfare
shall be is 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
fined and imprisoned.
(c) If any parent, guardian, custodian or other person
responsible for the child's welfare causes a 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 or regional 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 or other person
responsible for the child's welfare is due primarily to a lack of
financial means on the part of such parent, guardian, or
custodian or other person responsible for the child's welfare.
(d) (e) The provisions of this section shall not apply to
any parent, guardian, or custodian or other person responsible
for the child's welfare who fails or refuses, or allows another
person to fail or refuse, to supply a child under the care, custody or control of such the parent, guardian, or custodian or
other person responsible for the child's welfare with necessary
medical care, when such the medical care conflicts with the
tenets and practices of a recognized religious denomination or
order of which such the parent, guardian, or custodian or other
person responsible for the child's welfare 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 under the new criminal definition.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.