Bill Text: WV HB2140 | 2018 | Regular Session | Introduced
Bill Title: Modifying the definition of child abuse or neglect to exclude accidental injury
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-01-10 - To House Judiciary [HB2140 Detail]
Download: West_Virginia-2018-HB2140-Introduced.html
WEST virginia Legislature
2017 regular session
By
to the Committee on the Judiciary.
A BILL to amend and
reenact §61-8D-1 and §61-8D-4 of the Code of West Virginia, 1931, as amended,
all relating to modifying the definitions of child abuse and neglect to exclude
accidents.
Be it enacted by the
Legislature of West Virginia:
That §61-8D-1 and §61-8D-4
of the Code of West Virginia, 1931, as amended, be amended and reenacted, all
to read as follows:
ARTICLE 8D. CHILD ABUSE.
§61-8D-1. Definitions.
As used in this article,
accidental physical, mental or emotional injury to a child, arising from a
reasonable failure by a parent, guardian or custodian to recognize or foresee
the threat arising from circumstances leading to an incidental or unplanned
event which has resulted in injury to the child is not abuse or neglect. In this
article, unless a different meaning is plainly required:
(1) “Abuse” means the
infliction upon a minor of physical injury 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) "Gross neglect"
means reckless or intentional conduct, behavior or inaction by a parent,
guardian or custodian that evidences a clear disregard for a minor child's
health, safety or welfare.
(7) “Neglect” means the
unreasonable failure by a parent, guardian or custodian of a minor child to
exercise a minimum degree of care to assure the minor child's physical safety
or health. For purposes of this article, the following do not constitute "neglect"
by a parent, guardian or custodian:
(A) Permitting a minor
child to participate in athletic activities or other similar activities that if
done properly are not inherently dangerous, regardless of whether that
participation creates a risk of bodily injury;
(B) Exercising discretion
in choosing a lawful method of educating a minor child; or
(C) Exercising discretion
in making decisions regarding the nutrition and medical care provided to a
minor child based upon religious conviction or reasonable personal belief.
(8) “Parent” means the
biological father or mother of a child, or the adoptive mother or father of a
child.
(9) “Sexual contact” means
sexual contact as that term is defined in section one, article eight-b, chapter
sixty-one of this code.
(10) “Sexual exploitation”
means an act whereby:
(A) A parent, custodian,
guardian or other person in a position of trust to a child, whether for
financial gain or not, persuades, induces, entices or coerces 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,
custodian or other person in a position of trust in relation to a child
persuades, induces, entices or coerces the child to display his or her sex
organs for the sexual gratification of the parent, guardian, custodian, person
in a position of trust or a third person, or to display his or her sex organs
under circumstances in which the parent, guardian, custodian or other person in
a position of trust knows such display is likely to be observed by others who
would be affronted or alarmed.
(11) “Sexual intercourse”
means sexual intercourse as that term is defined in section one, article
eight-b, chapter sixty-one of this code.
(12) “Sexual intrusion”
means sexual intrusion as that term is defined in section one, article eight-b,
chapter sixty-one of this code.
(13) A "person
in a position of trust in relation to a child" refers to any person who is acting in the place of
a parent and charged with any of a parent's rights, duties or responsibilities concerning a child
or someone responsible for the general supervision of a child's
welfare, or any person who by virtue of their occupation or position is charged
with any duty or responsibility for the health, education, welfare, or
supervision of the child.
§61-8D-4. Child neglect
resulting in injury; child neglect creating risk of injury; criminal penalties.
(a) If a parent, guardian
or custodian neglects a child and by such neglect causes the child bodily
injury, as bodily injury is defined in section one, article eight-b of this
chapter, then the parent, guardian or custodian is guilty of a felony and, upon
conviction thereof, shall be fined not less than $100 nor more than $1,000
dollars or imprisoned in a state correctional facility for not less than one
nor more than three years, or in the discretion of the court, be confined in
jail for not more than one year, or both.
(b) If a parent, guardian
or custodian neglects a child and by such neglect cause the child serious
bodily injury, as serious bodily injury is defined in section one, article
eight-b of this chapter, then the parent, guardian or custodian is guilty of a
felony and, upon conviction thereof, shall be fined not less than $300 nor more
than $3,000 dollars or imprisoned in a state correctional facility for not less
than one nor more than ten years, or both.
(c) If a parent, guardian
or custodian grossly neglects a child and by that gross neglect creates a
substantial risk of death or serious bodily injury, as serious bodily injury is
defined in section one, article eight-b of this chapter, of the child then the
parent, guardian or custodian is guilty of a felony and, upon conviction
thereof, shall be fined not less than $1,000 nor more than $3,000 dollars or
imprisoned in a state correctional facility for not less than one nor more than
five years, or both.
(d)(1) If a parent,
guardian or custodian who has not been previously convicted under this section,
section three of this article or a law of another state or the federal
government with the same essential elements neglects a child and by that
neglect creates a substantial risk of bodily injury, as defined in section one,
article eight-b of this chapter, to the child, then the parent, guardian or
custodian, is guilty of a misdemeanor and, upon conviction thereof, for a first
offense, shall be fined not less than $100 nor more than $1,000 or confined in
jail not more than six months, or both fined and confined.
(2) For a second offense
under this subsection or for a person with one prior conviction under this
section, section three of this article or a law of another state or the federal
government with the same essential elements, the parent, guardian or custodian
is guilty of a misdemeanor and, upon conviction thereof, shall be fined not
more than $1,000 and confined in jail not less than thirty days nor more than
one year, or both.
(3) For a third or
subsequent offense under this subsection or for a person with two or more prior
convictions under this section, section three of this article or a law of
another state or the federal government with the same essential elements, the
parent, guardian or custodian is guilty of a felony and, upon conviction
thereof, shall be fined not more than $2,000 and imprisoned in a state
correctional facility not less than one year nor more than three years, or both
fined and imprisoned.
(e) 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.
(f) Any person convicted of
a misdemeanor offense under this section:
(1) May be required to
complete parenting classes, substance abuse counseling, anger management
counseling, or other appropriate services, or any combination thereof, as
determined by Department of Health and Human Resources, Bureau for Children and
Families through its services assessment evaluation, which shall be submitted
to the court of conviction upon written request;
(2) Shall not be required
to register pursuant to the requirements of article thirteen, chapter fifteen
of this code; and
(3) Shall not, solely by
virtue of the conviction, have their custody, visitation or parental rights
automatically restricted.
(g) As used in this article, accidental physical,
mental or emotional injury to a child, arising from a reasonable failure by a parent,
guardian or custodian to recognize or foresee the threat arising from
circumstances leading to an incidental or unplanned event which has resulted in
injury to the child is not abuse or neglect.
NOTE: The purpose of this bill is to modify the
definitions of child abuse and neglect to exclude accidental injury.
Strike-throughs indicate language
that would be stricken from a heading or the present law, and underscoring
indicates new language that would be added.