WEST VIRGINIA
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2023.
WHO: ANY
person age >18 MAY report: (1) reasonable cause to suspect a
child was abused or neglected in a home or institution; or (2) observes the
child subjected to conditions or circumstances that would result in abuse or
neglect. [Code Ann. § 49-2-803(c),(d)]
These are mandatory
(MUST report) if they are AT LEAST age 18, • Medical,
dental, or mental health professionals • Christian Science practitioners and
religious healers • School teachers or other school personnel • Social service,
child care, or foster care workers • Emergency medical services personnel •
Peace officers, law enforcement officials, or humane officers • Members of
clergy • Circuit court judges, family court judges, Division of Juvenile
Services employees, or magistrates • Youth camp administrators, counselors,
employees, coaches, or volunteers of entities that provide organized
activities for children • Commercial film or photographic print processors. [Code Ann. § 49-2-803(a),(d)]
· STANDARD: [Code Ann. §§ 49-2-803(a),(c);
69-8D-1(2)] Child means under age 18 and not otherwise
emancipated by law.
(1) For all mandated reports: (1) reasonable cause to
suspect a child is neglected or abused (including for sexual abuse or sexual
assault); or (2) observes the child being subjected to conditions likely to
result in abuse or neglect.
(2) For mandated triple reporting (DHHR,
state police, & other enforcers): belief that the child suffered serious
physical abuse OR sexual abuse OR sexual assault.
(3) For any reporter:
(1) reasonable cause to suspect that a child was abused or neglected in a home
or institution; or (2) observes the child being subjected to conditions or
circumstances that would reasonably result in abuse or neglect.
· PRIVILEGE: Only
attorney-client privilege can be invoked as grounds not to report. Husband-wife
and professional-patient/client privilege cannot. [Code Ann. § 49-2-811]
WHEN: For all
reports: IMMEDIATELY by phone; no more than 24 HOURS (as of 6/5/2018). If
requested by DHHR, reporters must follow up with a written report within 48
HOURS. [Code Ann. §§ 49-2-803;
49-2-809]
WHERE & HOW: [Code Ann. § 49-2-803;
49-2-809]
(A) ALL reporters must call the
Dept. of Health and Human Resources (DHHR) hotline within 24 hours. A written
report must follow within 48 hours, if DHHR requests it.
(B) MANDATED reporters who (1)
are on staff or volunteer at a (2) public or private institution, school, or
entity that provides organized activities for children, a facility, or an
agency – those reporters must ALSO report to the head of that institution, etc.
or its designated agent. That person may supplement the report or cause an additional
one to be made. BUT the mandatory reporter must still report to
the state directly.
(C) MANDATED reporters who
believe that the child suffered serious physical abuse OR sexual
abuse OR sexual assault must ALSO report to the state police AND
ALSO to any (local) law enforcement agency that has jurisdiction to
investigate.
(D) SUSPICIOUS DEATH: Any mandated reporter who has reasonable
cause to suspect that a child died as a result of abuse or neglect must report
that to the appropriate (i.e., county) medical examiner or coroner. [Code Ann. § 49-2-807]
Reporting Note: DHHR and the statutes do
not publish how to file a written report, if needed. If one is needed, intake
personnel should cover that.
CONTACT INFORMATION:
· For a child in an emergency: dial 911 first;
then contact DHHR to report
· DHHR 24/7 Hotline: 1-800-352-6513 (voice / TDD accessible)
· DHHR county directory (if
needed for follow-on written reports):
o
https://dhhr.wv.gov/bcf/Pages/MapList.aspx
· West Virginia State Police,
Crimes Against Children Unit: 304-293-6400
o
3040 University Avenue, Suite #3108, Morgantown, WV 26505
· Other WV Law Enforcement
Agencies: See directory: http://usacops.com/wv/ For an appropriate law enforcement agency
consider the city, town or county: (a) where the child resides; or
alternatively (b) where the incident occurred.
·
County Medical Examiners / Coroners:
Counties tend to have one or the other. For a directory, see https://www.countyoffice.org/wv-medical-coroner/
OTHER ASPECTS
·
REPORT DETAILS: MUST describe circumstances for the
suspicion. [Code Ann. § 49-2-803] Centralized intake asks: (a) the victim(s)’s demographic
info [child’s name, address, age]; (b) type of abuse or neglect suspected; (c) if
the victim is in imminent danger; (d) location of victim and caregivers;
(e) if a protective caregiver is present; (f) whether the alleged perpetrator
has access to the victim; (g) how well the victim and caregivers are
functioning; and (h) known safety threats for first responders. [https://dhhr.wv.gov/bcf/Services/Pages/Centralized-Intake-for-Abuse-and-Neglect.aspx]
· REPORTER PROTECTION: (1) The
statutes do not specifically require a report to identify the reporter. (2) The
reporter’s identity is not made available to agencies or entities. [Code Ann. § 49-5-101(c),(d)] (3) Any mandatory or permitted reporter in
good faith is immune from civil and criminal liability. [Code
Ann. § 49-2-810]
WHY: (1)
Any person, official or institution who knowingly fails to make a
required report or knowingly prevents another from reasonably
doing so commits a misdemeanor punishable by < $5,000 fine and/or <
90 days confinement in jail. BUT
if the knowing failure or prevention concerns a case of (a) a
child known or suspected to be sexually assaulted / abused or (b)
a student known or suspected to be a victim of any nonconsensual sexual
contact / intercourse / intrusion on school premises, the reporting violation
is a misdemeanor punishable by < $10,000 fine and/or < 6
months confinement in jail. [Code Ann. § 49-2-812]
WHAT: In
West Virginia: (1) child abuse includes physical injury, mental or
emotional injury, sexual abuse or
sexual exploitation, sale or
attempted sale of a child, domestic
violence, and human trafficking
or attempt of it; and (2) child neglect includes non-supply of necessities (except due to
poverty) and disappearance / absence. [Code Ann. § 49-1-201]
Initial Screening Criteria
(DHHR): (a) The information meets legal definitions of child
abuse and neglect; (b) the child is under 18, born alive, and the family
resides in West Virginia; (c) sufficient information is included to locate
the family; (d) the reporter’s account and motives are credible; and (e) the
information is not redundant with other reports. [CPS Policy Man. § 3.3; https://dhhr.wv.gov/bcf/policy/Documents/CPS_Policy.pdf]
Reportable: (a) a parent, guardian, or custodian
for physical or mental/emotional injury,
sexual abuse, sexual exploitation, sale or attempted sale of the child, or neglect by non-supply of necessities; (b) a parent
or custodian for neglect by absence;
(c) a family member or other household member for domestic violence; or (d) anyone
for sexual abuse in the 1st, 2nd, or 3rd
degree, or human trafficking or the
attempt. [See items below.] NOTE: Abusers who do not fall within this
description may be committing a different crime and are reportable to law
enforcement for that reason.
·
Terms: (a) A PARENT is parent by law, biology, marriage to a biological
parent, adoption, etc. (b) A GUARDIAN is a court-ordered
permanent caretaker for a child. (c) A CUSTODIAN has or shares physical
possession or care and custody of a child, regardless of whether it is by
contract or agreement. [E.g., daycare.] (d) A CAREGIVER is a
person age 18 or more who either: (i) is related to the child by blood,
marriage or adoption, but is not the legal custodian or guardian; or (ii) has
resided with the child continuously for at least the last 6 months. [Code Ann. § 49-1-204]
Child Abuse is harm or threat to health or welfare by any of: [Code Ann. § 49-1-201]
(A) Physical Injury, or
Mental or Emotional Injury, meaning
that (a) a parent, guardian, or
custodian (b) knowingly or intentionally (c) does or attempts or allows by
another (d) infliction of physical injury, or mental or emotional injury, (e)
upon the child or another child in the home. [Code Ann. § 49-1-201]
(1) EXCESS: physical injury may
arise by excessive corporal punishment.
(2) SERIOUS PHYSICAL ABUSE means
bodily injury that creates a substantial risk of death, or serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss
or impairment of function of any
bodily organ.
(3) IMMINENT DANGER (health,
life, or safety emergency) includes where any child in the home suffers
from: (a) non-accidental trauma
inflicted by a parent, guardian, custodian, sibling, babysitter, or other
caregiver; (b) battered child syndrome;
(c) substantial emotional injury
inflicted by a parent, guardian, or custodian; or (d) another dangerous
situation in the home.
(B) Sexual Abuse or Sexual Exploitation
(1) SEXUAL ABUSE means any of the following: [Code Ann. § 49-1-201]
(a) That (i) a parent, guardian, or custodian (ii) does,
attempts, or knowingly procures another person to engage in sexual (iii) intercourse, intrusion, contact, or conduct
(iv) with
a child.
(i)
It is abuse even without physical, mental, or emotional injury and even
if the child is willing (if under age 16) or consents (if age 16 or more).
(b) That (i) a parent,
guardian, or custodian (ii) displays
his or her sex organs or has someone else display theirs (iii) to a child to (iv) affront or alarm the child, or gratify
the child, parent, guardian, custodian or someone else.
(c) That anyone sexually
abuses a child in the 1st, 2nd, or 3rd degree,
meaning sexual contact by any of: (i) force; (ii) on a physically helpless
child; (iii) a person age 14 or more on a child under age 12; (iv) on a child
who has a mental defect or mental incapacity; or (v) a person over age 16 and
at least 4 years older than the child. [Code
Ann. §§ 49-1-201; 61-8b-7, -8, or -9]
(d) A child conceived
by sexual abuse is considered a sexually abused child, however that does NOT
make the abused mother a sexual abuser.
(2) CONTEXT: THE AGE OF CONSENT is 16. Nuances
follow. (a) A person age 16 or more may
have sex with a child who is less than 4 years younger. (b) A person age 14 or
more may have sex with a child age 12 or 13. (c) Underage spouses are exempt. [Code Ann. § 61-8B-3, -5, -7, -9]
(a) But incestuous
sexual penetration is prohibited: father, mother, brother, sister, daughter,
son, grandfather, grandmother, grandson, granddaughter, nephew, niece, uncle,
or aunt. [Code Ann. § 61-8-12]
(3) SEXUAL EXPLOITATION means any of the following acts by a parent,
guardian, or custodian: [Code Ann. §
49-1-201]
(a) (Whether for financial gain
or not) persuades, induces, entices, or coerces a child to engage in
sexually explicit conduct;
(b) Persuades, induces, entices
or coerces a child to display his or her sex organs to either (i) sexually
gratify the parent, guardian, custodian or a third person, or (ii) affront or
alarm others; or
(c) Knowingly maintains or
makes a child available for commercial sex.
(4) IMMINENT DANGER (health,
life, or safety emergency) includes where any child in the home is
sexually abused or sexually exploited. [Code
Ann. § 49-1-201]
(C) Sale or Attempted Sale of the Child means that (a) a parent, guardian or custodian (b)
offers or transfers legal or physical custody of a minor child for any purpose
(c) to a knowing third party (d) in exchange for money, property, service, or
anything of value. Examples include sale for adoption or placement. [Code Ann. § 61-2-14h]
(1) IMMINENT DANGER (health,
life, or safety emergency) includes where any child in the home is sold –
or a sale is attempted – by a parent, guardian or custodian.
[Code Ann. § 49-1-201]
(D) Domestic Violence means that any of the following acts occur between
family or household members: (a) intentionally, knowingly, or recklessly
causing – or attempting to cause – physical harm to another (with or without
dangerous or deadly weapons); (b) lacing another person in reasonable apprehension of
physical harm; (c) creating fear of physical harm by harassment, stalking,
psychological abuse or threatening acts; (d) sexual assault or sexual abuse; or
(e) holding, confining, detaining or abducting another person against his/her
will. [Code Ann. § 48-27-202]
(1) IMMINENT DANGER (health,
life, or safety emergency) includes homes with domestic violence if
they threaten any child’s health, life, or safety there. [Code Ann. § 49-1-201]
(E) Human Trafficking and Attempted Human
Trafficking means to knowingly,
willfully do or attempt to recruit, transport, transfer, harbor, receive,
provide, obtain, isolate, maintain, or entice an individual to engage in DEBT
bondage, forced LABOR, or SEXUAL servitude.
[Code
Ann. §§ 61-14-1;
61-14-2]
(1) IMMINENT DANGER (health,
life, or safety emergency) includes where any child in the home is at
risk from human trafficking or attempt. [Code
Ann. § 49-1-201]
Child Neglect is harm or threat to health
or welfare as follows. [Code Ann. §
49-1-201]
(A)
Definition is either or both of:
(1) A child’s (a) parent,
guardian, or custodian (b) refuses, fails, or is unable to SUPPLY (c) needed
food, clothing, shelter, supervision, medical care, or education, resulting in
(d) harm or threat to the child’s physical or mental health; however
caregiver inability due to lack of financial means is NOT neglect; or
(2) A child’s (a) parent or custodian
disappeared or is ABSENT; (b) thus, (c) the child lacks needed food, clothing,
shelter, medical care, education, or supervision.
(B)
Imminent Danger (health, life, or safety emergency) includes where any child in
the home is at risk from: (a) NUTRITIONAL deprivation; (b) ABANDONMENT by a
parent, guardian, or custodian; (c) inadequate treatment of serious ILLNESS or
disease; (d) (serious) IMPAIRMENT of parenting skills by abuse of alcohol,
drugs, or other controlled substance; and (e) OTHER conditions in the home that
threaten the child’s welfare or life. [Code Ann. § 49-1-201]
(1) ABANDONMENT is conduct showing
intent to forego duties & responsibilities.
(C)
Caveats: private school or
homeschooling that complies with state law is NOT neglect of education. [Code Ann. §§ 49-1-201; 18-8-1 et seq.]
This document provides legal information, not legal advice.
F. Russell Denton, Ph.D., Esq.
ISBN No. 979-8-9886484-0-6
©️ Pinion Feather Press, LLC, 2020, 2023.