The Child Abuse Prevention and Treatment Act (CAPTA), as amended and reauthorized in
October 1996 (Public Law 104-235, Section 111; 42 U.S.C. 5106g), defines child abuse and
neglect as, at a minimum, any recent act or failure to act:
Employment, use, persuasion, inducement, enticement, or coercion of any child to engage in, or assist any other person to engage in, any sexually explicit conduct or any simulation of such conduct for the purpose of producing any visual depiction of such conduct; or rape, and in cases of caretaker or inter-familial relationships, statutory rape, molestation,prostitution, or other form of sexual exploitation of children, or incest with children.
With the reauthorization of CAPTA, withholding of medically indicated treatment has been defined as failure to respond to an infant's life-threatening conditions by denial of treatment (including appropriate nutrition, hydration, and medication) that would most likely be effective in ameliorating or correcting all life-threatening conditions. This definition does not refer to situations where treatment of an infant, in the treating physician's reasonable medical judgment, would prolong dying, be ineffective in ameliorating or correcting all the infant's life-threatening conditions, or be futile in helping the infant to survive. In addition, this definition does not include situations where the infant is chronically or irreversibly comatose.
Each State is responsible for providing definitions of child abuse and neglect within the civil and criminal context. Civil laws, or statutes, describe the circumstances and conditions that obligate mandated reporters to report known or suspected cases of abuse, and they provide definitions necessary for juvenile/family courts to take custody of a child alleged to have been maltreated.
Criminal statutes specify the forms of maltreatment that are criminally punishable. (The State Statutes Series from the National Clearinghouse on Child Abuse and Neglect Information summarizes over 30 civil and criminal State statutes pertaining to child maltreatment.)
There are four major types of child maltreatment: physical abuse, child neglect, sexual abuse, and
emotional abuse.
Physical abuse is the infliction of physical injury as a result of punching, beating, kicking, biting,
burning, shaking, or otherwise harming a child. The parent or caretaker may not have intended
to hurt the child, rather the injury may have resulted from over-discipline or physical
punishment.
Child neglect is characterized by failure to provide for the child's basic needs. Neglect can be
physical, educational, or emotional. Physical neglect includes refusal of or delay in seeking
health care, abandonment, expulsion from the home or refusal to allow a runaway to return
home, and inadequate supervision. Educational neglect includes the allowance of chronic
truancy, failure to enroll a child of mandatory school age in school, and failure to attend to a
special educational need. Emotional neglect includes such actions as marked inattention to
the child's needs for affection, refusal of or failure to provide needed psychological care,
spouse abuse in the child's presence, and permission of drug or alcohol use by the child. The
assessment of child neglect requires consideration of cultural values and standards of care as
well as recognition that the failure to provide the necessities of life may be related to poverty.
Sexual abuse includes fondling a child's genitals, intercourse, incest, rape, sodomy,
exhibitionism, and commercial exploitation through prostitution or the production of
pornographic materials. Many experts believe that sexual abuse is the most under-reported
form of child maltreatment because of the secrecy or "conspiracy of silence" that so often
characterizes these cases.
Emotional abuse includes acts or omissions by the parents or other caregivers that have
caused, or could cause, serious behavioral, cognitive, emotional, or mental disorders. In some
cases of emotional abuse, the acts of parents or other caregivers alone, without any harm
evident in the child's behavior or condition, are sufficient to warrant child protective services
(CPS) intervention. For example, the parents/caregivers may use extreme or bizarre forms of
punishment, such as confinement of a child in a dark closet. Less severe acts, such as habitual
scapegoating, belittling, or rejecting treatment, are often difficult to prove and, therefore, CPS
may not be able to intervene without evidence of harm to the child.
Although any of the forms of child maltreatment may be found separately, they often occur in
combination. Emotional abuse is almost always present when other forms are identified.
National Clearinghouse on Child Abuse and Neglect Information
Only one third of all reported abuse cases to CPS are ever investigated and those that are done in a shabby sort of way.
That is why the Federal Government has just passed the SAFE CHILDREN AND FAMILY ACT, Nov. 1997 You should also read KINSHIP CARE ACT, Oct. 1997 Syllabus Point 1, In Interest of Tiffany ,arie .., 196 W.Va. 223, 470 S.E.2d 177 (1996)."
Syllabus Point 2, In re Katie S., 198 W.VVa. 9, 479 .222d 889 996)
1. "'Although conclusions of law reached by a circuit court are subject to de novo review, when an
action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall
make a determination based upon the evidence and shall make findings of fact and conclusions of
law as to whether such child is abused or neglected. These findings shall not be set aside by a
reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is
evidence to support the finding, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed. However, a reviewing court may not overturn a
finding simply because it would have decided the case differently, and it must affirm a finding if the
circuit court's account of the evidence is plausible in light of the record viewed in its entirety.'
2. "Although parents have substantial rights that must be protected, the primary goal in cases
involving abuse and neglect, as in all family law matters, must be the health and welfare of the
children." Syllabus Point 3, In re Katie S., 198 W. Va. 79, 479 S.E.2d 589 (1996).
In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syllabus Point 4, In re
Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
3. "Each child in an abuse and neglect case is entitled to effective representation of counsel. To
further that goal, W.Va.Code, 49-6-2(a) [1992] mandates that a child has a right to be represented
by counsel in every stage of abuse and neglect proceedings. Furthermore, Rule XIII of the West
Virginia Rules for Trial Courts of Record provides that a guardian ad litem shall make a full and
independent investigation of the facts involved in the proceeding, and shall make his or her
recommendations known to the court. Rules 1.1 and 1.3 of the West Virginia Rules of
Professional Conduct, respectively, require an attorney to provide competent representation to a
client, and to act with reasonable diligence and promptness in representing a client.'
Syllabus Point 5,
in part, In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993)." Syllabus Point 4, In re
Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
4. "Where there is clear and convincing evidence that a child has suffered physical and/or sexual
abuse while in the custody of his or her parent(s), guardian, or custodian, another child residing in the
home when the abuse took place who is not a direct victim of the physical and/or sexual abuse but is
at risk of being abused is an abused child under W.Va.Code, 49-1-3(a) (1994)."
Syllabus Point 2,
In re Christina L., 194 W.Va. 446, 460 S.E.2d 692 (1995).
5. "'W.Va.Code, 49-6-2(c) [1980], requires the State Department of Welfare [now the Department
of Health and Human Resources], in a child abuse or neglect case, to prove "conditions existing at
the time of the filing of the petition ... by clear and convincing proof." The statute, however, does not
specify any particular manner or mode of testimony or evidence by which the State Department of
Welfare is obligated to meet this burden.'
Syllabus Point 1, In Interest of S.C., 168 W.Va. 366,
284 S.E.2d 867 (1981).
Syllabus Point 1, West Virginia Department of Human Services v.
Peggy F., 184 W.Va. 60, 399 S.E.2d 460 (1990). Syllabus Point 1, In re Beth, 192 W.Va. 656,
453 S.E.2d 639 (1994)." Syllabus Point 3, In re Christina L., 194 W.Va. 446, 460 S.E.2d 692
(1995).
6. "Child abuse and neglect cases must be recognized as being among the highest priority for the
courts' attention. Unjustified procedural delays wreak havoc on a child's development, stability and
security." Syllabus Point 1, in part, In Interest of Carlita B., 185 W.Va. 613, 408 S.E.2d 365
(1991).
_Per Curiam:
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KINSHIP CARE
IN THE TRENCHES
LEGAL TERMS
WV Grandparents
Children's Bill of Right
Domestic Violence
Each State is responsible for providing definitions of child abuse and neglect within the
civil and criminal context. Civil laws, or statutes, describe the circumstances and
conditions that obligate mandated reporters to report known or suspected cases of
abuse, and they provide definitions necessary for juvenile/family courts to take custody
of a child alleged to have been maltreated.
Parents of adult addicts
