(Effective 04/15/19)
Table of Contents
5.1.1 Care, Custody, and Control
5.1.2.1.1 Reasonable Discipline
5.1.2.2.1 Child Sex Trafficking
5.1.3.1 Proper or Necessary Support
5.1 Legal Definitions of Abuse and Neglect
5.1.1 Care, Custody, and Control
Pursuant to Section 210.110, RSMo., “those responsible for the care, custody, and control of a child includes, but is not limited to:
- The parents or legal guardians of a child;
- Other members of the child’s household;
- Those exercising supervision over a child for any part of a twenty-four-hour day;
- Any adult person who has access to the child based on relationship to the parents of the child or members of the child’s household or the family;
- Any person who takes control of the child by deception, force, or coercion; or
- School personnel, contractors, and volunteers, if the relationship with the child was established through the school or through school-related activities, even if the alleged abuse or neglect occurred outside of school hours or off school grounds.
Persons considered to have care, custody, and control are those who have parental authority and/or supervision responsibility or those to whom parental authority and/or supervision responsibility has been granted by the child’s parent, legal custodian, or guardian in an agreed upon arrangement. Persons considered to have care, custody, and control also include those who take or assume control over a child by using deception, force, or coercion, even if there is no prior relationship to the child or the child’s family. Persons considered to have care, custody, and control also include those who have a relationship with the child through their duties as school personnel, contractors, and volunteers.
Deception, force, and coercion can generally be thought of as a power differential, threat to harm, restraint, or trickery used to induce a child to be subjected to an act of abuse and neglect. The determination of whether deception, force, or coercion exists is a case-by-case decision, dependent on the individual circumstances.
To assist in the decision making process of determining whether deception, force, or coercion exists, examples include, but are not limited to the following:
- Physically restraining or threatening to physically restrain the child;
- Abduction or threatened abduction of a child;
- The use of a plan, pattern, or statement with intent to cause the child to believe that failure to perform an act will result in the use of force against, abduction of, serious harm to, or physical restraint of the child;
- The abuse or threatened abuse of law or legal process;
- The actual or threatened destruction, concealment, removal, confiscation, or possession of any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person;
- Giving the child a substance without the child’s knowledge or consent and then committing an act of abuse;
- Controlling or threatening to control the child’s access to a controlled dangerous substance;
- The use of debt bondage or civil or criminal fraud; or
- Extortion.
If serious harm occurred to a child, just because the alleged perpetrator did not have care, custody, and control does not mean that the incident was not a criminal act. An example of the difference between a CA/N report and a Non-Caretaker referral when considering force:
- A stranger to the child walks by the child in a store and assaults the child. The perpetrator did not assume control over the child and this is a non-caretaker report.
- A stranger to the child grabbed the child and took the child into the store’s bathroom and assaulted the child. The perpetrator assumed care, custody, and control by physically restraining them and this is a Child Abuse/Neglect Report.
Access through relationship to the parents of the child or members of the child’s household or the family shall exclude the following:
- Interactions between children, unless the juvenile perpetrator has been given supervision or parental authority over the child.
- Interactions that are based solely on professional relationships, such as that with physicians, therapists, dentists, merchants, employers, and clergy, do not meet the definition, unless:
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- It can be shown that a personal relationship exists in which the alleged perpetrator and the child or child’s family interacts outside the professional/client relationship or the alleged perpetrator has responsibility in an agreed upon arrangement for the child’s supervision or the alleged perpetrator used deception, force, or coercion.
- A physician has taken protective custody of a child and then committed an act of abuse or neglect against the child.
Examples of situations that meet the criteria for care, custody, and control based on taking control over a child using deception, force, or coercion:
- A school-aged child is abducted and sexually molested by a man who lives in the child’s neighborhood.
- A five year old child is photographed in the nude by an adult male while visiting the children who live across the street. The alleged perpetrator lured the child into his home with promises of some kind of reward.
- A man owns and operates a neighborhood grocery store that is frequented by children. He knows many of the children by name, but has no relationship with the children other than that of storeowner and customer. Over time the storeowner establishes a rapport with a six-year-old female child. He eventually coaxes the child into the back of his store where he shows her pornographic films. Over the next few weeks a routine emerges in which the child comes into the store and the man sexually abuses the child. Although the storeowner has a relationship with this child that was only established through his profession as the storeowner, he is considered to have care, custody, and control of her due his coaxing behavior.
- A sixteen year old becomes romantically involved with an adult male whom she met on the internet and who has no prior relationship with the child or the child’s family. The child eventually runs away from home to be with her “boyfriend”. After a few weeks, the adult male begins to make the child engage in prostitution.
Other examples of situations that do meet the criteria for care, custody, and control:
- A child has an adult sibling living in his household. The adult sibling has an adult friend who is frequently present in the home and often spends the night. The friend is reported to have molested the child. He had access to the child based on his personal relationship with the child’s sibling.
- A man reportedly exposes his genitals to a child in his home. The adult was, at one time, the child’s biology teacher, but was not at the time of the incident. The teacher raises fish in aquariums at school and the child developed a relationship with the teacher due to his own interest in aquarium fish. The child would sometimes stay after school and help the teacher with the fish. One day the teacher invited the child to his home to see the aquarium there. The teacher is thought of as having care, custody, and control of the child based on their personal relationship as well as the individual being a teacher at the school where the child attends.
- A party is held at a residence in which several children live. An adult guest at the party, a friend of the parent who is hosting the party, is intoxicated and becomes belligerent toward a teenage child who refused to get a beer for the guest. The adult strikes the child in the face, leaving an injury on the child’s face. The adult is considered to have care, custody, and control, based on his personal relationship to the child’s parents.
Pursuant to Section 210.110, RSMo., abuse is defined as:
“Any physical injury, sexual abuse, or emotional abuse inflicted on a child other than by accidental means by those responsible for the child’s care, custody, and control, except that discipline including spanking, administered in a reasonable manner, shall not be construed to be abuse. Victims of abuse shall also include any victims of sex trafficking or severe forms of trafficking as those terms are defined in 22 U.S.C. 78 Section 7102(9)-(10).”
Pursuant to 13 CSR 35-31.010, physical injury is defined as:
“Any bruising, lacerations, hematomas, welts, permanent or temporary disfigurement; loss, or impairment of any bodily function or organ, which may be accompanied by physical pain, illness, or impairment of the child’s physical condition.”
5.1.2.1.1 Reasonable Discipline
What is considered to be reasonable discipline is driven by the specific facts of your case, and varies from individual to individual. While there is no statutory definition, case law provides some guidance on this issue. In Cima vs. Fansler, the Western District Court of Appeals found that pain and obvious signs of bruising lasting more than twenty-four (24) hours support a finding that discipline was not administered in a reasonable manner. Additional factors could also support finding discipline was not administered in a reasonable manner, even if twenty-four (24) hours have not lapsed. Factors include, but are not limited to: discipline which is not commensurate with the child’s perceived wrong, the age of the child, the cognitive ability of the child, emotional functioning, objects used for discipline (and likelihood for injury from that type of object), and duration of discipline. These and other factors should be considered when determining whether an injury that resulted from an act of discipline is abuse, although this is not to be used as the sole basis of such a determination.
Pursuant to 13 CSR 35-31.010, sexual abuse is defined as:
“Any sexual or sexualized interaction with a child, except as otherwise provided in paragraph 2 below.
1. Sexual abuse shall include, but is not limited to:
A. Any touching of the genitals, anus or buttocks of a child, or the breast of a female child, or any such touching through the clothing; any act involving the genitals of a child and the hand, mouth, tongue, or anus of another person; or any sexual act involving the penetration, however slight, of a child’s mouth, penis, female genitalia, or anus by any body part of another person, or by any instrument or object;
B. Any conduct that would constitute a violation, regardless of arrest or conviction, of Chapter 566, RSMo., if the victim is less than eighteen (18) years of age, section 567.050, RSMo if the victim is less than eighteen (18) years of age, sections 568.020, 568.060, 568.080, or 568.090, RSMo, sections 573.025, 573.035, 573.037, or 573.040, RSMo, or an attempt to commit any of the preceding crimes;
C. Sexual exploitation of the child, which shall include:
(I) Allowing, permitting, or encouraging a child to engage in prostitution, as defined by state law; or
(II) Allowing, permitting, encouraging, or engaging in the obscene or pornographic photographing, filming, or depicting of a child as those acts are defined by state law. This includes the storage or transmission of any data depicting said obscene or pornographic acts, images, or recordings.
2. Any reasonable interaction with a child, including touching a child’s body for the purpose of providing the proper or necessary care or support of the child, shall not be considered sexual abuse. The touching of a child’s body, including a child’s genitals, buttocks, anus, or breasts for reasonable, medical, child rearing, or child care purposes shall not be considered sexual abuse.
3. The division shall not be required to prove that the alleged perpetrator received sexual gratification or that there was an exchange or promise of anything of value as a result of the act of sexual abuse to establish sexual abuse under Chapter 210 or 211, RSMo.
4. The use of force or coercion is not a necessary element for a finding of sexual abuse.
5. Sexual abuse may occur over or under the child’s clothes.
6. The division shall not be required to prove that the child suffered trauma or harm as a result of the act of sexual abuse.
7. A child cannot consent to a sexual or sexualized act or interaction with a person responsible for that child’s care, custody, and control.”
5.1.2.2.1 Child Sex Trafficking
A victim of child sex trafficking is a victim of both abuse and neglect. Refer to Section 2, Chapter 5.1.3 Neglect
Sex trafficking is defined as:
“The recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purpose of a commercial sex act.”
Severe forms of trafficking in persons is defined as:
“(A) Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age; or
(B) The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.”
Commercial sex act is defined as:
“Any sex act on account of which anything of value is given to, promised, or received by any person.”
Pursuant to 13 CSR 35-31.010, emotional abuse is defined as:
“Any injury to a child’s psychological capacity or emotional stability demonstrated by an observable or substantial change or impairment in the child’s behavior, emotional response, or cognition, which may include but is not limited to: anxiety, depression, withdrawal, or aggressive behavior; and which may be established by either lay or expert witnesses.”
Staff may use witnesses outside of the mental health profession to present evidence that the child’s injury resulted in an observable or substantial change in his behavior, emotional response, or cognition. However, it would be best practice to use a qualified mental health professional if possible.
Pursuant to Section 210.110, RSMo., neglect is defined as:
“A failure to provide, by those responsible for the care, custody, and control of the child, the proper or necessary support, education as required by law, nutrition, or medical, surgical, or any other care necessary for the child’s well-being. Victims of neglect shall also include any victims of sex trafficking or severe forms of trafficking as those terms are defined in 22 U.S.C. 78 Section 7102(9)-(10).”
5.1.3.1 Proper or Necessary Support
Pursuant to 13 CSR 35-31.010, proper or necessary support is defined as:
“Adequate food, clothing, shelter, medical care, or other care and control necessary to provide for the child’s physical, mental, or emotional health or development.”