ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 216
(Senators Prezioso, Palumbo, Edgell, Foster,
Kessler (Acting President), Minard, Unger,
Williams, Boley, Jenkins, Snyder, Browning, McCabe, Stollings, Plymale,
Laird, Miller, Klempa and Nohe, original sponsors)
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[Passed March 7, 2011; in effect ninety days from passage.]
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AN ACT to amend and reenact §49-1-3 of the Code of West Virginia,
1931, as amended, relating to modifying the definition of
"imminent danger to the physical well-being of a child" with
regard to child abuse and neglect to include alcohol and
substance abuse on the part of the parent, guardian or
custodian.
Be it enacted by the Legislature of West Virginia:
That §49-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-3. Definitions relating to abuse and neglect.
As used in this chapter:
(1) "Abused child" means a child whose health or welfare is
harmed or threatened by:
(A) A parent, guardian or custodian who knowingly or intentionally inflicts, attempts to inflict or knowingly allows
another person to inflict, physical injury or mental or emotional
injury, upon the child or another child in the home; or
(B) Sexual abuse or sexual exploitation; or
(C) 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; or
(D) Domestic violence as defined in section two hundred two,
article twenty-seven, 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.
(2) "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.
(3) "Battered parent" means a parent, guardian or other
custodian who has been judicially determined not to have condoned
the abuse or neglect and has not been able to stop the abuse or
neglect of the child or children due to being the victim of
domestic violence as defined by section two hundred two, article
twenty-seven, chapter forty-eight of this code, which domestic
violence was perpetrated by the person or persons determined to
have abused or neglected the child or children.
(4) "Child abuse and neglect" or "child abuse or neglect"
means physical injury, mental or emotional injury, sexual abuse,
sexual exploitation, sale or attempted sale or negligent treatment
or maltreatment of a child by a parent, guardian or custodian who is responsible for the child's welfare, under circumstances which
harm or threaten the health and welfare of the child.
(5) "Child abuse and neglect services" means social services
which are directed toward:
(A) Protecting and promoting the welfare of children who are
abused or neglected;
(B) Identifying, preventing and remedying conditions which
cause child abuse and neglect;
(C) 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;
(D) In cases where children have been removed from their
families, providing services to the children and the families so as
to reunify such children with their families or some portion
thereof;
(E) Placing children in suitable adoptive homes when
reunifying the children with their families, or some portion
thereof, is not possible or appropriate; and
(F) Assuring the adequate care of children who have been
placed in the custody of the department or third parties.
(6) "Child advocacy center" means a community-based
organization that is a member in good standing with the West
Virginia Child Abuse Network, Inc., and is working to implement the
following program components:
(A) Child-appropriate/child-friendly facility: A child
advocacy center provides a comfortable, private, child-friendly
setting that is both physically and psychologically safe for clients.
(B) Multidisciplinary team (MDT): A multidisciplinary team for
response to child abuse allegations includes representation from
the following: Law enforcement; child protective services;
prosecution; mental health; medical; victim advocacy; child
advocacy center.
(C) Organizational capacity: A designated legal entity
responsible for program and fiscal operations has been established
and implements basic sound administrative practices.
(D) Cultural competency and diversity: The CAC promotes
policies, practices and procedures that are culturally competent.
Cultural competency is defined as the capacity to function in more
than one culture, requiring the ability to appreciate, understand
and interact with members of diverse populations within the local
community.
(E) Forensic interviews: Forensic interviews are conducted in
a manner which is of a neutral, fact finding nature and coordinated
to avoid duplicative interviewing.
(F) Medical evaluation: Specialized medical evaluation and
treatment are to be made available to CAC clients as part of the
team response, either at the CAC or through coordination and
referral with other specialized medical providers.
(G) Therapeutic intervention: Specialized mental health
services are to be made available as part of the team response,
either at the CAC or through coordination and referral with other
appropriate treatment providers.
(H) Victim support/advocacy: Victim support and advocacy are
to be made available as part of the team response, either at the CAC or through coordination with other providers, throughout the
investigation and subsequent legal proceedings.
(I) Case review: Team discussion and information sharing
regarding the investigation, case status and services needed by the
child and family are to occur on a routine basis.
(J) Case tracking: CACs must develop and implement a system
for monitoring case progress and tracking case outcomes for team
components: Provided, That a child advocacy center may establish a
safe exchange location for children and families who have a
parenting agreement or an order providing for visitation or custody
of the children that require a safe exchange location.
(7) "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 the home 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:
(A) Nonaccidental trauma inflicted by a parent, guardian,
custodian, sibling or a babysitter or other caretaker;
(B) A combination of physical and other signs indicating a
pattern of abuse which may be medically diagnosed as battered child
syndrome;
(C) Nutritional deprivation;
(D) Abandonment by the parent, guardian or custodian;
(E) Inadequate treatment of serious illness or disease;
(F) Substantial emotional injury inflicted by a parent,
guardian or custodian;
(G) Sale or attempted sale of the child by the parent,
guardian or custodian; or
(H) The parent, guardian or custodian's abuse of alcohol, or
drugs or other controlled substance as defined in section
one-hundred one, article one, chapter sixty-a of this code, has
impaired his or her parenting skills to a degree as to pose an
imminent risk to a child's health or safety.
(8) "Legal guardianship" means the permanent relationship
between a child and caretaker, established by order of the circuit
court having jurisdiction over the child, pursuant to the
provisions of this chapter and chapter forty-eight of this code.
(9) "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, educational,
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 addresses the general problem of
child abuse and neglect in a given community and may consist of
several multidisciplinary teams with different functions.
(10) (A)"Neglected child" means a child:
(i) 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
(ii) 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;
(B) "Neglected child" does not mean a child whose education is
conducted within the provisions of section one, article eight,
chapter eighteen of this code.
(11) "Parent" means an individual defined as a parent by law
or on the basis of a biological relationship, marriage to a person
with a biological relationship, legal adoption or other recognized
grounds.
(12) "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.
(13) "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.
(14) "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 fact that
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;
(ii) Sexual intrusion; or
(iii) Sexual contact;
(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;
(ii) Sexual intrusion; or
(iii) Sexual contact.
(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.
(15) "Sexual contact" means sexual contact as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(16) "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.
(17) "Sexual intercourse" means sexual intercourse as that
term is defined in section one, article eight-b, chapter sixty-one
of this code.
(18) "Sexual intrusion" means sexual intrusion as that term is
defined in section one, article eight-b, chapter sixty-one of this
code.
(19) "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. (20) "Serious
physical abuse" means bodily injury which creates a substantial
risk of death, which causes serious or prolonged disfigurement,
prolonged impairment of health or prolonged loss or impairment of
the function of any bodily organ.
(21) "Siblings" means children who have at least one
biological parent in common or who have been legally adopted by the
same parents or parent.
(22) "Time-limited reunification services" means individual,
group and family counseling, inpatient, residential or outpatient
substance abuse treatment services, mental health services,
assistance to address domestic violence, services designed to
provide temporary child care and therapeutic services for families,
including crisis nurseries and transportation to or from any such services, provided during fifteen of the most recent twenty-two
months a child has been in foster care, as determined by the
earlier date of the first judicial finding that the child is
subjected to abuse or neglect, or the date which is sixty days
after the child is removed from home.
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