MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Judiciary B
By: Representative McLean
AN ACT TO AMEND SECTION 97-5-39, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT FELONIOUS CHILD ABUSE IS COMMITTED WHEN A CHILD TESTS POSITIVE AT BIRTH FOR CERTAIN CONTROLLED SUBSTANCES THAT WERE NOT PRESCRIBED BY A PHYSICIAN; TO AMEND SECTIONS 43-21-105 AND 43-21-603, MISSISSIPPI CODE OF 1972, TO REVISE THE REQUIRED EVIDENCE FOR PROOF OF CHILD ABUSE TO CONFORM TO THIS ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 97-5-39, Mississippi Code of 1972, is amended as follows:
97-5-39. (1) (a) Except as otherwise provided in this section, any parent, guardian or other person who intentionally, knowingly or recklessly commits any act or omits the performance of any duty, which act or omission contributes to or tends to contribute to the neglect or delinquency of any child or which act or omission results in the abuse of any child, as defined in Section 43-21-105(m) of the Youth Court Law, or who knowingly aids any child in escaping or absenting himself from the guardianship or custody of any person, agency or institution, or knowingly harbors or conceals, or aids in harboring or concealing, any child who has absented himself without permission from the guardianship or custody of any person, agency or institution to which the child shall have been committed by the youth court shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00), or by imprisonment not to exceed one (1) year in jail, or by both such fine and imprisonment.
(b) For the purpose of this section, a child is a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services, or who is married, is not considered a child for the purposes of this statute.
(c) If a child commits one (1) of the proscribed acts in subsection (2)(a), (b) or (c) of this section upon another child, then original jurisdiction of all such offenses shall be in youth court.
(d) If the child's deprivation of necessary clothing, shelter, health care or supervision appropriate to the child's age results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment in custody of the Department of Corrections for not more than five (5) years or to payment of a fine of not more than Five Thousand Dollars ($5,000.00), or both.
(e) A parent, legal guardian or other person who knowingly permits the continuing physical or sexual abuse of a child is guilty of neglect of a child and may be sentenced to imprisonment in the custody of the Department of Corrections for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(2) Any person shall be guilty of felonious child abuse in the following circumstances:
(a) Whether bodily harm results or not, if the person shall intentionally, knowingly or recklessly:
(i) Burn any child;
(ii) Physically torture any child;
(iii) Strangle, choke, smother or in any way interfere with any child's breathing;
(iv) Poison a child;
(v) Starve a child of nourishments needed to sustain life or growth;
(vi) Use any type of deadly weapon upon any child;
(b) If some bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Throw, kick, bite, or cut any child;
(ii) Strike a child under the age of fourteen (14) about the face or head with a closed fist;
(iii) Strike a child under the age of five (5) in the face or head;
(iv) Kick, bite, cut or strike a child's genitals; circumcision of a male child is not a violation under this subparagraph (iv);
(c) If serious bodily harm to any child actually occurs, and if the person shall intentionally, knowingly or recklessly:
(i) Strike any child on the face or head;
(ii) Disfigure or scar any child;
(iii) Whip, strike or otherwise abuse any child;
(d) Whether bodily harm results or not, if a child tests positive at birth for a controlled substance, as defined in Section 41-29-105, unless the controlled substance was prescribed by a physician;
( * * *e) Any person, upon conviction under paragraph
(a) or (c) of this subsection, shall be sentenced by the court to imprisonment in
the custody of the Department of Corrections for a term of not less than five (5)
years and up to life, as determined by the court. Any person, upon conviction under
paragraph (b) of this subsection shall be sentenced by the court to imprisonment
in the custody of the Department of Corrections for a term of not less than two
(2) years nor more than ten (10) years, as determined by the court. Upon conviction
under paragraph (d) of this subsection, the mother shall be sentenced to imprisonment
in the custody of the Department of Corrections for a term of not more than five
(5) years and sentenced to a fine not to exceed Five Thousand Dollars ($5,000.00).
For any second or subsequent conviction under this subsection (2), the person shall
be sentenced to imprisonment for life.
( * * *f) (i) For the purposes of this
subsection (2), "bodily harm" means any bodily injury to a child and includes,
but is not limited to, bruising, bleeding, lacerations, soft tissue swelling, and
external or internal swelling of any body organ.
( * * *ii) For the purposes of this subsection
(2), "serious bodily harm" means any serious bodily injury to a child
and includes, but is not limited to, the fracture of a bone, permanent disfigurement,
permanent scarring, or any internal bleeding or internal trauma to any organ, any
brain damage, any injury to the eye or ear of a child or other vital organ, and
impairment of any bodily function.
(g) Nothing contained in paragraph (c) of this subsection shall preclude a parent or guardian from disciplining a child of that parent or guardian, or shall preclude a person in loco parentis to a child from disciplining that child, if done in a reasonable manner, and reasonable corporal punishment or reasonable discipline as to that parent or guardian's child or child to whom a person stands in loco parentis shall be a defense to any violation charged under paragraph (c) of this subsection.
(h) Reasonable discipline and reasonable corporal punishment shall not be a defense to acts described in paragraphs (a) and (b) of this subsection or if a child suffers serious bodily harm as a result of any act prohibited under paragraph (c) of this subsection.
(3) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(4) (a) A parent, legal guardian or caretaker who endangers a child's person or health by knowingly causing or permitting the child to be present where any person is selling, manufacturing or possessing immediate precursors or chemical substances with intent to manufacture, sell or possess a controlled substance as prohibited under Section 41-29-139 or 41-29-313, is guilty of child endangerment and may be sentenced to imprisonment for not more than ten (10) years or to payment of a fine of not more than Ten Thousand Dollars ($10,000.00), or both.
(b) If the endangerment results in substantial harm to the child's physical, mental or emotional health, the person may be sentenced to imprisonment for not more than twenty (20) years or to payment of a fine of not more than Twenty Thousand Dollars ($20,000.00), or both.
(5) Nothing contained in this section shall prevent proceedings against the parent, guardian or other person under any statute of this state or any municipal ordinance defining any act as a crime or misdemeanor. Nothing in the provisions of this section shall preclude any person from having a right to trial by jury when charged with having violated the provisions of this section.
(6) After consultation with the Department of Child Protection Services, a regional mental health center or an appropriate professional person, a judge may suspend imposition or execution of a sentence provided in subsections (1) and (2) of this section and in lieu thereof require treatment over a specified period of time at any approved public or private treatment facility. A person may be eligible for treatment in lieu of criminal penalties no more than one (1) time.
(7) In any proceeding resulting from a report made pursuant to Section 43-21-353 of the Youth Court Law, the testimony of the physician making the report regarding the child's injuries or condition or cause thereof shall not be excluded on the ground that the physician's testimony violates the physician-patient privilege or similar privilege or rule against disclosure. The physician's report shall not be considered as evidence unless introduced as an exhibit to his testimony.
(8) Any criminal prosecution arising from a violation of this section shall be tried in the circuit, county, justice or municipal court having jurisdiction; provided, however, that nothing herein shall abridge or dilute the contempt powers of the youth court.
SECTION 2. Section 43-21-105, Mississippi Code of 1972, is amended as follows:
43-21-105. The following words and phrases, for purposes of this chapter, shall have the meanings ascribed herein unless the context clearly otherwise requires:
(a) "Youth court" means the Youth Court Division.
(b) "Judge" means the judge of the Youth Court Division.
(c) "Designee" means any person that the judge appoints to perform a duty which this chapter requires to be done by the judge or his designee. The judge may not appoint a person who is involved in law enforcement or who is an employee of the Mississippi Department of Human Services or the Mississippi Department of Child Protection Services to be his designee.
(d) "Child" and "youth" are synonymous, and each means a person who has not reached his eighteenth birthday. A child who has not reached his eighteenth birthday and is on active duty for a branch of the armed services or is married is not considered a "child" or "youth" for the purposes of this chapter.
(e) "Parent" means the father or mother to whom the child has been born, or the father or mother by whom the child has been legally adopted.
(f) "Guardian" means a court-appointed guardian of the person of a child.
(g) "Custodian" means any person having the present care or custody of a child whether such person be a parent or otherwise.
(h) "Legal custodian" means a court-appointed custodian of the child.
(i) "Delinquent child" means a child who has reached his tenth birthday and who has committed a delinquent act.
(j) "Delinquent act" is any act, which if committed by an adult, is designated as a crime under state or federal law, or municipal or county ordinance other than offenses punishable by life imprisonment or death. A delinquent act includes escape from lawful detention and violations of the Uniform Controlled Substances Law and violent behavior.
(k) "Child in need of supervision" means a child who has reached his seventh birthday and is in need of treatment or rehabilitation because the child:
(i) Is habitually disobedient of reasonable and lawful commands of his parent, guardian or custodian and is ungovernable; or
(ii) While being required to attend school, willfully and habitually violates the rules thereof or willfully and habitually absents himself therefrom; or
(iii) Runs away from home without good cause; or
(iv) Has committed a delinquent act or acts.
(l) "Neglected child" means a child:
(i) Whose parent, guardian or custodian or any person responsible for his care or support, neglects or refuses, when able so to do, to provide for him proper and necessary care or support, or education as required by law, or medical, surgical, or other care necessary for his well-being; however, a parent who withholds medical treatment from any child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall not, for that reason alone, be considered to be neglectful under any provision of this chapter; or
(ii) Who is otherwise without proper care, custody, supervision or support; or
(iii) Who, for any reason, lacks the special care made necessary for him by reason of his mental condition, whether the mental condition is having mental illness or having an intellectual disability; or
(iv) Who, for any reason, lacks the care necessary for his health, morals or well-being.
(m) "Abused child" means a child whose parent, guardian or custodian or any person responsible for his care or support, whether legally obligated to do so or not, has caused or allowed to be caused, upon the child, sexual abuse, sexual exploitation, commercial sexual exploitation, emotional abuse, mental injury, nonaccidental physical injury or other maltreatment, or a child who test positive at birth for a controlled substance as defined by Section 41-29-105, unless the controlled substance was prescribed by a physician. However, physical discipline, including spanking, performed on a child by a parent, guardian or custodian in a reasonable manner shall not be deemed abuse under this section. "Abused child" also means a child who is or has been trafficked within the meaning of the Mississippi Human Trafficking Act by any person, without regard to the relationship of the person to the child.
(n) "Sexual abuse" means obscene or pornographic photographing, filming or depiction of children for commercial purposes, or the rape, molestation, incest, prostitution or other such forms of sexual exploitation of children under circumstances which indicate that the child's health or welfare is harmed or threatened.
(o) "A child in need of special care" means a child with any mental or physical illness that cannot be treated with the dispositional alternatives ordinarily available to the youth court.
(p) A "dependent child" means any child who is not a child in need of supervision, a delinquent child, an abused child or a neglected child, and which child has been voluntarily placed in the custody of the Department of Child Protection Services by his parent, guardian or custodian.
(q) "Custody" means the physical possession of the child by any person.
(r) "Legal custody" means the legal status created by a court order which gives the legal custodian the responsibilities of physical possession of the child and the duty to provide him with food, shelter, education and reasonable medical care, all subject to residual rights and responsibilities of the parent or guardian of the person.
(s) "Detention" means the care of children in physically restrictive facilities.
(t) "Shelter" means care of children in physically nonrestrictive facilities.
(u) "Records involving children" means any of the following from which the child can be identified:
(i) All youth court records as defined in Section 43-21-251;
(ii) All forensic interviews conducted by a child advocacy center in abuse and neglect investigations;
(iii) All law enforcement records as defined in Section 43-21-255;
(iv) All agency records as defined in Section 43-21-257; and
(v) All other documents maintained by any representative of the state, county, municipality or other public agency insofar as they relate to the apprehension, custody, adjudication or disposition of a child who is the subject of a youth court cause.
(v) "Any person responsible for care or support" means the person who is providing for the child at a given time. This term shall include, but is not limited to, stepparents, foster parents, relatives, nonlicensed babysitters or other similar persons responsible for a child and staff of residential care facilities and group homes that are licensed by the Department of Human Services or the Department of Child Protection Services.
(w) The singular includes the plural, the plural the singular and the masculine the feminine when consistent with the intent of this chapter.
(x) "Out-of-home" setting means the temporary supervision or care of children by the staff of licensed day care centers, the staff of public, private and state schools, the staff of juvenile detention facilities, the staff of unlicensed residential care facilities and group homes and the staff of, or individuals representing, churches, civic or social organizations.
(y) "Durable legal custody" means the legal status created by a court order which gives the durable legal custodian the responsibilities of physical possession of the child and the duty to provide him with care, nurture, welfare, food, shelter, education and reasonable medical care. All these duties as enumerated are subject to the residual rights and responsibilities of the natural parent(s) or guardian(s) of the child or children.
(z) "Status offense" means conduct subject to adjudication by the youth court that would not be a crime if committed by an adult.
(aa) "Financially able" means a parent or child who is ineligible for a court-appointed attorney.
(bb) "Assessment" means an individualized examination of a child to determine the child's psychosocial needs and problems, including the type and extent of any mental health, substance abuse or co-occurring mental health and substance abuse disorders and recommendations for treatment. The term includes, but is not limited to, a drug and alcohol, psychological or psychiatric evaluation, records review, clinical interview or the administration of a formal test and instrument.
(cc) "Screening" means a process, with or without the administration of a formal instrument, that is designed to identify a child who is at increased risk of having mental health, substance abuse or co-occurring mental health and substance abuse disorders that warrant immediate attention, intervention or more comprehensive assessment.
(dd) "Durable legal relative guardianship" means the legal status created by a youth court order that conveys the physical and legal custody of a child or children by durable legal guardianship to a relative or fictive kin who is licensed as a foster or resource parent.
(ee) "Relative" means a person related to the child by affinity or consanguinity within the third degree.
(ff) "Fictive kin" means a person not related to the child legally or biologically but who is considered a relative due to a significant, familial-like and ongoing relationship with the child and family.
(gg) "Reasonable efforts" means the exercise of reasonable care and due diligence by the Department of Human Services, the Department of Child Protection Services, or any other appropriate entity or person to use appropriate and available services to prevent the unnecessary removal of the child from the home or provide other services related to meeting the needs of the child and the parents.
(hh) "Commercial sexual exploitation" means any sexual act or crime of a sexual nature, which is committed against a child for financial or economic gain, to obtain a thing of value for quid pro quo exchange of property or for any other purpose.
SECTION 3. Section 43-21-603, Mississippi Code of 1972, is amended as follows:
43-21-603. (1) At the beginning of each disposition hearing, the judge shall inform the parties of the purpose of the hearing.
(2) All testimony shall be under oath unless waived by all parties and may be in narrative form. The court may consider any evidence that is material and relevant to the disposition of the cause, including hearsay and opinion evidence. At the conclusion of the evidence, the youth court shall give the parties an opportunity to present oral argument.
(3) If the child has been adjudicated a delinquent child, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
(a) The nature of the offense;
(b) The manner in which the offense was committed;
(c) The nature and number of a child's prior adjudicated offenses;
(d) The child's need for care and assistance;
(e) The child's current medical history, including medication and diagnosis;
(f) The child's mental health history, which may include, but not be limited to, the Massachusetts Youth Screening Instrument version 2 (MAYSI-2);
(g) Copies of the child's cumulative record from the last school of record, including special education records, if applicable;
(h) Recommendation from the school of record based on areas of remediation needed;
(i) Disciplinary records from the school of record; and
(j) Records of disciplinary actions outside of the school setting.
(4) If the child has been adjudicated a child in need of supervision, before entering a disposition order, the youth court should consider, among others, the following relevant factors:
(a) The nature and history of the child's conduct;
(b) The family and home situation; and
(c) The child's need of care and assistance.
(5) If the child has been adjudicated a neglected child or an abused child, before entering a disposition order, the youth court shall consider, among others, the following relevant factors:
(a) The child's physical and mental conditions;
(b) The child's or family's need of assistance;
(c) The manner in which the parent, guardian or custodian participated in, tolerated or condoned the abuse, neglect or abandonment of the child;
(d) The ability of a child's parent, guardian or custodian to provide proper supervision and care of a child; and
(e) Relevant testimony and recommendations, where available, from the foster parent of the child, the grandparents of the child, the guardian ad litem of the child, representatives of any private care agency that has cared for the child, the family protection worker or family protection specialist assigned to the case, and any other relevant testimony pertaining to the case.
(6) After consideration of all the evidence and the relevant factors, the youth court shall enter a disposition order that shall not recite any of the facts or circumstances upon which the disposition is based, nor shall it recite that a child has been found guilty; but it shall recite that a child is found to be a delinquent child, a child in need of supervision, a neglected child or an abused child.
(7) If the youth court orders that the custody or supervision of a child who has been adjudicated abused or neglected be placed with the Department of Child Protection Services or any other person or public or private agency, other than the child's parent, guardian or custodian, the youth court shall find and the disposition order shall recite that:
(a) (i) Reasonable efforts have been made to maintain the child within his own home, but that the circumstances warrant his removal and there is no reasonable alternative to custody; or
(ii) The circumstances are of such an emergency nature that no reasonable efforts have been made to maintain the child within his own home, and that there is no reasonable alternative to custody; and
(b) That the effect of the continuation of the child's residence within his own home would be contrary to the welfare of the child and that the placement of the child in foster care is in the best interests of the child; or
(c) Reasonable efforts to maintain the child within his home shall not be required if the court determines that:
(i) The parent has
subjected the child to aggravated circumstances, including, but not limited to,
abandonment, torture, chronic abuse and sexual abuse; * * *
(ii) A child has tested positive at birth for a controlled substance, as defined in Section 41-29-105, unless the controlled substance was prescribed by a physician; or
( * * *iii) The parent has been convicted of
murder of another child of that parent, voluntary manslaughter of another child
of that parent, aided or abetted, attempted, conspired or solicited to commit that
murder or voluntary manslaughter, or a felony assault that results in the serious
bodily injury to the surviving child or another child of that parent; or
( * * *iv) The parental rights of the parent
to a sibling have been terminated involuntarily; and
( * * *v) That the effect of the continuation
of the child's residence within his own home would be contrary to the welfare of
the child and that placement of the child in foster care is in the best interests
of the child.
Once the reasonable efforts requirement is bypassed, the court shall have a permanency hearing under Section 43-21-613 within thirty (30) days of the finding.
(8) Upon a written motion by a party, the youth court shall make written findings of fact and conclusions of law upon which it relies for the disposition order. If the disposition ordered by the youth court includes placing the child in the custody of a training school, an admission packet shall be prepared for the child that contains the following information:
(a) The child's current medical history, including medications and diagnosis;
(b) The child's mental health history;
(c) Copies of the child's cumulative record from the last school of record, including special education records, if reasonably available;
(d) Recommendation from the school of record based on areas of remediation needed;
(e) Disciplinary records from the school of record; and
(f) Records of disciplinary actions outside of the school setting, if reasonably available.
Only individuals who are permitted under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) shall have access to a child's medical records which are contained in an admission packet. The youth court shall provide the admission packet to the training school at or before the child's arrival at the training school. The admittance of any child to a training school shall take place between the hours of 8:00 a.m. and 3:00 p.m. on designated admission days.
(9) When a child in the jurisdiction of the Youth Court is committed to the custody of the Mississippi Department of Human Services or the Department of Child Protection Services and is believed to be in need of treatment for a mental or emotional disability or infirmity, the Department of Human Services or the Department of Child Protection Services shall file an affidavit alleging that the child is in need of mental health services with the Youth Court. The Youth Court shall refer the child to the appropriate community mental health center for evaluation pursuant to Section 41-21-67. If the prescreening evaluation recommends residential care, the Youth Court shall proceed with civil commitment pursuant to Sections 41-21-61 et seq., 43-21-315 and 43-21-611, and the Department of Mental Health, once commitment is ordered, shall provide appropriate care, treatment and services for at least as many adolescents as were provided services in fiscal year 2004 in its facilities.
(10) Any screening and assessment examinations ordered by the court may aid in dispositions related to delinquency, but no statements or admissions made during the course thereof may be admitted into evidence against the child on the issue of whether the child committed a delinquent act.
SECTION 4. This act shall take effect and be in force from and after July 1, 2024.