Untitled Texas Attorney General Opinion ( 1977 )

. .
THEAITORNEYGENERAL
OF TEXAS
AUSTIN. TEXAS 78711
Honorable Raymond W. Vowel1 Opinion No. H-986
Commissioner
Department of Public Welfare Re: Extent of child abuse
Austin, Texas 78701 reporting statute.
Dear Mr. Vowell:
You have requested our opinion concerning the scope of
Texas law regarding the reporting of child abuse.
Section 34.01 of the Family Code provides:
Any person having cause to believe that a
child's physical or mental health or wel-
fare has been or may be adversely affected
by abuse or neglect shall report in accor-
dance with Section 34.02 of this code.
Section 34.02 provides for reporting of abuse or neglect, the
violation of compulsory school attendance laws, or absence
from home.
Your first group of questions are whether section 34.01
requires the reporting of sexual abuse and of conduct suffi-
cient for termination of parental rights under subsections
15.02(1)(D) and (E). In this connection you ask whether the
mandate of 34.01 is limited to serious injury or whether it
includes emotional injury and failure to provide adequate
food, clothing, and shelter.
Section 34.01 provides for reporting when "a child's
physical or mental health or welfare has been or may be ad-
versely affected by abuse or neglect. . . ." This standard
is not limited by any language requiring serious physical
injury; rather, section 34.01 is broadly written to encompass
any injuries which result from abuse or neglect. "Abuse"
is generally defined as "improper use" or "maltreatment."
Webster's Third New International Dictionary; 'City of
Cincinnati v~. McIntosh, 251 N.E.2d 624 (Ct. App. Ohio 1969).
p. 4100
Honorable Raymond W. Vowel1 - page 2 (H-986)
See Gulf, C. & S.F. Ry. v. Bates, 95 S.W. 738 (Tex. Civ. App.
33-76, no writ]. Although the term "neglect" has no fixed
meaning in this context, Pima %ounty Juvenile Action No. J-31853,
501 P.2d 395 (Ariz. Ct. App. 1972); People v. Labrenz, 104
N.E.2d 769 (Ill. 1952); State v. Munchmeyer, 197 S.E.2d 648
(W. Va. 1973). it has been generally defined as the failure
to perform the duty with which a parent is charged by law and
by conscience. Eaglen v. State, 231 N.E.2d 147 (Ind. 1967);
In re Vilas, 475 P.2d 615 (Okla. 1970): S.'K.'L.v. Smith, 480
S.W.2d 119 (MO. Ct. App. 1972). SeemMitc'hell v. Davis,
205 S.W.2d 812 (Tex. Civ. App. --Dallas 1947, writ ref'd).
It is clear that section 34.01 is not limited to serious
physical injury; it requires the reporting of circumstances
caused by abuse or neglect which may adversely affect the
physical or mental health or welfare of a child. It is like-
wise clear that sexual abuse would adversely affect the phys-
ical or mental health or welfare of a child and is required
to be reported.
Section 15.02 provides for the termination of the parent-
child relationship if it is in the best interest of the child
and
(1) the parent has:
. . . .
(D) knowingly placed or knowingly allowed
the child to remain in conditions or
surroundings which endanger the physi-
cal or emotional well-being of the
child; or
(E) engaged in conduct or knowingly placed
the child with persons who engaged in
conduct which endangers the physical
or emotional well-being of the child:
or
(F) failed to support the child in accor-
dance with his ability during a period
of one year ending within six months
of the date of the filing of the peti-
tion. . . .
p. 4101
. .
Honorable Raymond W. Vowel1 - page 3 (H-986)
Section 34.05(f) provides that upon receipt of the report
and recommendation "the court may direct the investigator to
file a petition seeking appropriate relief under Subtitle A
. . . .II In our view this reference to Subtitle A, of which
section 15.02 is a part, in conjunction ~with the similarity
of the standards provided in section 15.02(1)(D) and (E) with
those of section 34.01, indicates that conduct sufficient to
terminate the parent-child relationship under sections 15.02(l)
(D) and (E) is required to be reported under section 34.01.
With regard to the failure to provide adequate food,
clothing, and shelter for a child, section 15.02(F) is limited
to failure to support "in accordance with [the parents'] abil-
ity during a period of one year. . . ." However, we do not be-
lieve the reporting requirement of section 34.01 is so limited.
Subtitle A also provides for suits affecting the parent-
child relationship "in which the appointment of a managing
conservator or possessory conservator, access to or support
of a child . . . is sought." Sec. 11.01(5). Section 11.11(a)
authorizes the court to make "any temporary order for the
safety and welfare of the child. . . ." Thus actions other
than termination of the parent-child relationship may result
from a report filed under section 34.01. Under section 12.04(3)
a parent has the "duty to support the child, including pro-
viding the child with clothing, food, shelter, medical care,
and education. . . ." A breach of this duty would constitute
neglect which is required to be reported if the "child's phys-
ical or mental health or welfare has been or may be adversely
affected" thereby. Sec. 34.01.
You have also asked whether a regulation would be valid
which provides that a parent or guardian legitimately prac-
ticing his religious beliefs who thereby does not provide
specified medical treatment for a child would not for that
reason alone be considered a negligent parent. You have ex-
plained that under this regulation your office would not seek
a termination of the parent-child relationship on this basis
but would be able to petition for orders providing for neces-
sary medical treatment. We believe that such a regulation ac-
curately reflects the provisions of the Family Code. Section
15.02 does provide for the termination of the parent-child
relationship upon this basis. However, the best interests
of the child are protected by the power of the court to
issue temporary orders and to provide for the proper care
of the child in a suit affecting the parent-child relation-
ship. Accordingly, in our opinion such a regulation would
be valid.
p. 4102
Honorable Raymond-W. Vowel1 - page 4 (H-986)
Your final question is whether only a parent or guardian
is required to report under section 34.01. That section re-
quires "any person" to make such 'reports and it is clear that
its provisions are not limited to reports by parents and quar-
dians; "[a]ny person having cause to believe that a child's
physical or mental health or welfare has been or may be ad-
versely affected by abuse or neglect shall report. . . .',
(Emphasis added]. -See Attorney General Opinion H-494 (1975).
'S U M M A ,R Y
Section 34.01 of the Family Code requires
the reporting of sexual abuse, the failure
to provide adequate food, clothing, and
shelter, and any conduct sufficient for
termination of the parent-child relation-
ship under section 15.02(1](D) and (E). A
regulation which would provide that termi-
nations not be sought solely upon the basis
of failure to provide medical care due to
religious beliefs but that other orders for
the welfare of the child may be sought upon
this basis would be valid. Section 34.01
requires any person having the information
described therein to report.
ttorney General of Texas
APPROVED:
Opinion Committee
km1
P. 4103