What definitions are important to know?
- “Abuse” includes the following acts or omissions by a person:
- Mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
- Causing or permitting the child to be in a situation in which the child sustains a mental or emotional injury that results in an observable and material impairment in the child’s growth, development, or psychological functioning;
- Physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm;
- Failure to make a reasonable effort to prevent an action by another person that results in physical injury that results in substantial harm to the child;
- Sexual conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that constitutes the offense of continuous sexual abuse of young child or children, indecency with a child, sexual assault, or aggravated sexual assault;
- Failure to make a reasonable effort to prevent sexual conduct harmful to a child;
- Compelling or encouraging the child to engage in sexual conduct, including conduct that constitutes an offense of trafficking of persons, prostitution, or compelling prostitution;
- Causing, permitting, encouraging, engaging in, or allowing the photographing, filming, or depicting of the child if the person knew or should have known that the resulting photograph, film, or depiction of the child is obscene or pornographic;
- The current use by a person of a controlled substance, in a manner or to the extent that the use results in physical, mental, or emotional injury to a child;
- Causing, expressly permitting, or encouraging a child to use a controlled substance;
- Causing, permitting, encouraging, engaging in, or allowing a sexual performance by a child; or
- Knowingly causing, permitting, encouraging, engaging in, or allowing a child to be trafficked, or the failure to make a reasonable effort to prevent a child from being trafficked.
- “Child” or “minor” means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.
- “Neglect” includes:
- The leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by a parent, guardian, or managing or possessory conservator of the child;
- The following acts or omissions by a person:
- Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child’s level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child;
- Failing to seek, obtain, or follow through with medical care for a child, with the failure resulting in or presenting a substantial risk of death, disfigurement, or bodily injury or with the failure resulting in an observable and material impairment to the growth, development, or functioning of the child;
- The failure to provide a child with food, clothing, or shelter necessary to sustain the life or health of the child, excluding failure caused primarily by financial inability unless relief services had been offered and refused;
- Placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child; or
- Placing a child in or failing to remove the child from a situation in which the child would be exposed to acts or omissions that constitute abuse committed against another child; or
- The failure by the person responsible for a child’s care, custody, or welfare to permit the child to return to the child’s home without arranging for the necessary care for the child after the child has been absent from the home for any reason, including having been in residential placement or having run away; or
- A negligent act or omission by an employee, volunteer, or other individual working under the auspices of a facility or program, including failure to comply with an individual treatment plan, plan of care, or individualized service plan, that causes or may cause substantial emotional harm or physical injury to, or the death of, a child served by the facility or program as further described by rule or policy.
“Neglect” does not include the refusal by a person responsible for a child’s care, custody, or welfare to permit the child to remain in or return to the child’s home resulting in the placement of the child in the conservatorship of the department if:
- The child has a severe emotional disturbance;
- The person’s refusal is based solely on the person’s inability to obtain mental health services necessary to protect the safety and well-being of the child; and
- The person has exhausted all reasonable means available to the person to obtain the mental health services necessary to protect the safety and well-being of the child.
- “Person responsible for a child’s care, custody, or welfare” means a person who traditionally is responsible for a child’s care, custody, or welfare, including:
- A parent, guardian, managing or possessory conservator, or foster parent of the child;
- A member of the child’s family or household;
- A person with whom the child’s parent cohabits;
- School personnel or a volunteer at the child’s school;
- Personnel or a volunteer at a public or private child-care facility that provides services for the child or at a public or private residential institution or facility where the child resides; or
- An employee, volunteer, or other person working under the supervision of a licensed or unlicensed child-care facility, including a family home, residential child-care facility, employer-based day-care facility, or shelter day-care facility.
- “Prescribed pediatric extended care center” means a facility operated for profit or on a nonprofit basis that provides non-residential basic services to four or more medically dependent or technologically dependent minors who require the services of the facility, and who are not related by blood, marriage or adoption to the owner or operator of the facility.
- “Professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.
- The term includes teachers, nurses, doctors, day care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers and juvenile detention and correctional officers.
- “Severe emotional disturbance” means a mental, behavioral, or emotional disorder of sufficient duration to result in functional impairment that substantially interferes with or limits a person’s role or ability to function in family, school, or community activities.
Anything else I should know?
- Knowingly failing to report is a Class A misdemeanor if the person is required to make a report and knowingly fails to do so.
- This offense is a Class A misdemeanor, punishable by a fine not to exceed $4,000, confinement in jail for a term not to exceed 1 year, or both.
- The offense becomes a state jail felony if it is shown at trial that the child had an intellectual disability, resided in a state-supported living center, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect. The offense also becomes a state jail felony if the person who was required to report is a professional and it is shown at trial that the actor intended to conceal the abuse or neglect.
- The reporting requirements apply without exception to individuals whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, an employee or member of a board that licenses or certifies a professional, and an employee of a clinic or health care facility that provides reproductive services.
- If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected and such person has cause to believe that the child has been abused, such person shall make a report not later than the 48th hour after the hour such person first suspects that the child has been or may be abused or neglected. The professional may not delegate to or rely on another person to make the report.
- In addition to the aforementioned duty to report (for any person and professionals), a person or professional must make a report if they have cause to believe that an adult was a victim of abuse or neglect as a child and the person or professional determines in good faith that disclosure of the information is necessary to protect the health or safety of another child or an elderly or disabled person (as defined by Section 48.002, Human Resources Code).
- An employer may not suspend or terminate the employment of, or otherwise discriminate against, a person who is a professional and who in good faith:
- Reports child abuse or neglect to:
- The person’s supervisor;
- An administrator of the facility where the person is employed;
- A state regulatory agency; or
- A law enforcement agency; or
- Initiates or cooperates with an investigation or proceeding by a governmental entity relating to an allegation of child abuse or neglect.
- A person whose employment is suspended or terminated or who is otherwise discriminated against in violation of this section may sue for injunctive relief, damages, or both.
- A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.
- A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.
- A person commits an offense if, with the intent to deceive, the person knowingly makes a false report.
- An offense is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted of false reporting, in which case the offense is a felony of the third degree.
- A person convicted of false reporting must pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report and is liable for a $1,000 civil penalty.
- Special rules apply to a prescribed pediatric extended care center. Any person, including an owner or employee of a facility, who has cause to believe that the physical or mental health or welfare of a resident has been or may be adversely affected by abuse, neglect or exploitation caused by another person shall report orally immediately upon learning of the abuse, neglect or exploitation, and shall make a written report no later than the fifth day after the oral report.
- Each facility shall require each employee, as a condition of employment, to sign a statement that the employee realizes that the employee may be criminally liable for failure to report abuse.
- The refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic medication to the child, or to consent to any other psychiatric or psychological treatment of the child, does not by itself constitute neglect of the child unless the refusal to consent:
- Presents a substantial risk of death, disfigurement, or bodily injury to the child; or
- Has resulted in an observable and material impairment to the growth, development, or functioning of the child