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.