Parental Substance Use as Child Maltreatment - Virginia

Substance-Exposed Newborns 
Citation: Ann. Code §§ 63.2-1506; 63.2-1509(B); Admin. Code Tit. 22, § 40-705-40(6)

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.

A report is required when, in their 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.

In regulation: Pursuant to § 63.2-1509(B), certain medical 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 and must be reported.

For purposes of this regulation, 'affected by substance abuse' is a determination by a health-care professional and may be determined by clinical indicators that include maternal and infant presentation at birth, substance use and medical histories, and toxicology study results of the infant that are positive for illegal substances or indicate abuse of controlled substances.  

When a valid report alleging abuse or neglect is made, the local department immediately must assess the child's circumstances and any threat to the child's health and safety.  Pursuant to regulation, the local department must conduct an initial safety assessment.  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.

The local department shall determine whether the mother of an infant who was exposed to a controlled substance sought substance abuse counseling or treatment prior to the child's birth. For purposes of this chapter, substance abuse counseling or treatment includes education about the impact of alcohol and drugs, legal or illegal, on the infant and on the maternal-child relationship, and education about relapse prevention.  

The substance use counseling or treatment should attempt to serve the purposes of treating the substance use disorder, strengthening the maternal relationship with the infant and siblings, and achieving and maintaining a sober, drug-free lifestyle.  

Facts solely indicating that the infant may have been exposed to controlled substances prior to birth are not sufficient to render a founded disposition of abuse or neglect in an investigation.  

Children Exposed to Parental Substance Use
Citation: Ann. Code §§ 18.2-248.02; 63.2-100

Any person aged 18 or older who knowingly allows (i) a minor under age 15, (ii) a minor age 15 or older with whom they maintain 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), or any substance containing a detectable amount of fentanyl, including its derivatives, isomers, esters, ethers, salts, and salts of isomers, 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.

The term 'abused or neglected child' includes any child younger than age 18 whose parents or other person responsible for their 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 their parent or other person responsible for their 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 their care, when such manufacture, attempted manufacture, or unlawful sale would constitute a felony violation of § 18.2-248.