Parental Substance Use as Child Abuse - Virginia

Date:

Citation: Ann. Code § 18.2-248.02 

Any person age 18 or older who knowingly allows (i) a minor under age 15, (ii) a minor age 15 or older with whom he or she maintains a custodial relationship, including, but not limited to, as a parent, stepparent, grandparent, step-grandparent, or who stands in loco parentis with respect to the minor, or (iii) a mentally incapacitated or physically helpless person of any age, to be present in the same dwelling, apartment, unit of a hotel, garage, shed, or vehicle during the manufacture or attempted manufacture of methamphetamine, as prohibited by § 18.2-248(C1), is guilty of a felony punishable by imprisonment for no less than 10 nor more than 40 years. This penalty shall be in addition to and served consecutively with any other sentence.

Citation: Ann. Code § 63.2-100

The term 'abused or neglected child' includes any child younger than age 18 whose parents or other person responsible for his or her care creates or inflicts, threatens to create or inflict, or allows to be created or inflicted upon the child a physical or mental injury by other than accidental means; or creates a substantial risk of death, disfigurement, or impairment of bodily or mental functions, including, but not limited to, a child who is with his or her parent or other person responsible for his or her care either (i) during the manufacture or attempted manufacture of a Schedule I or II controlled substance, or (ii) during the unlawful sale of such substance by that child's parents or other person responsible for his or her care, when such manufacture, attempted manufacture, or unlawful sale would constitute a felony violation of § 18.2-248.

Citation: Ann. Code § 63.2-1506

A family assessment requires the collection of information necessary to determine the following:

  • The immediate safety needs of the child
  • The protective and rehabilitative services needs of the child and family that will deter abuse or neglect
  • Risk of future harm to the child
  • Whether the mother of a child who was exposed in utero to a controlled substance sought substance abuse counseling or treatment prior to the child's birth
  • Alternative plans for the child's safety if protective and rehabilitative services are indicated, and the family is unable or unwilling to participate in services

If a report or complaint is based upon one of the factors specified in § 63.2-1509(B), the local department shall (a) conduct a family assessment, unless an investigation is required pursuant to this subsection or other provision of law or is necessary to protect the safety of the child, and (b) develop a plan of safe care in accordance with federal law, regardless of whether the local department makes a finding of abuse or neglect.

Citation: Ann. Code § 63.2-1509(B) 

A report is required when, in his or her professional or official capacity, a reporter has reason to suspect that a child is abused or neglected. For purposes of this section, 'reason to suspect that a child is abused or neglected' shall, due to the special medical needs of infants affected by substance exposure, include the following:

  • A finding made by a health-care provider within 6 weeks of the birth of a child that the child was born affected by substance abuse or experiencing withdrawal symptoms resulting from in utero drug exposure
  • A diagnosis made by a health-care provider within 4 years following a child's birth that the child has an illness, disease, or condition that, to a reasonable degree of medical certainty, is attributable to maternal abuse of a controlled substance during pregnancy
  • A diagnosis made by a health-care provider within 4 years following a child's birth that the child has a fetal alcohol spectrum disorder attributable to in utero exposure to alcohol 

When 'reason to suspect' is based upon this subsection, that fact shall be included in the report along with the facts relied upon by the person making the report. Such reports shall not constitute a per se finding of child abuse or neglect. If a health-care provider in a licensed hospital makes any finding or diagnosis as described above, the hospital shall require the development of a written discharge plan under protocols established by the hospital.

Citation: Admin. Code Tit. 22, § 40-705-40

Pursuant to § 63.2-1509(B), certain facts indicating that a newborn may have been exposed to a controlled substance prior to birth constitute a reason to suspect that a child is abused or neglected. Whenever a health-care provider makes a finding or diagnosis, then the providermust make a report to child protective services immediately.

When a valid report alleging abuse or neglect is made pursuant to § 63.2-1509(B), then the local department immediately must assess the child's circumstances and any threat to the child's health and safety. In addition, the local department must determine whether to petition the court for any necessary services or court orders needed to ensure the safety and health of the child.

Following the receipt of a report, the department may determine that no further action is required if the mother of the infant sought or received substance abuse counseling or treatment.

The local department must notify the mother immediately upon receipt of a report. This notification must include a statement informing the mother that, if she fails to present evidence that she sought or received substance abuse counseling or treatment during the pregnancy, then the department shall conduct an investigation or family assessment.

If the mother sought counseling or treatment but did not receive such services, then the department must determine whether she made a good faith effort to receive treatment before the child's birth. If the mother made a good faith effort to receive treatment or counseling prior to the child's birth but did not receive the services due to no fault of her own, then the department may determine no further action is required.

If the mother sought or received substance abuse counseling or treatment, but there is evidence, other than exposure to a controlled substance, that the child may be abused or neglected, then the local department shall conduct an investigation or family assessment.