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# THEAITORNEYGENERAL OF TEXAS
AUSTIN. TEXAS 78711

Honorable Raymond W.Vowel1 Commissioner Department of Public Welfare Austin, Texas 78701
Dear Mr. Vowell: Opinion No. H-986
Re: Extent of child abuse reporting statute.

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 tobelieve that a child's physical ormental health or welfare has been ormay be adversely affected by abuse or neglect shall report in accordance with Section 34.02 of this code. Section 34.02provides for reporting of abuse or neglect, the violation of compulsory school attendance laws, or absence from home.
Your first group of questions arewhether section 34.01 requires the reporting of sexual abuse and of conduct sufficient 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 orwhether it includes emotional injury and failure toprovide adequate food, clothing, and shelter. Section 34.01 provides for reporting when "achild's physical ormental health orwelfare has been ormay be adversely affected by abuse or neglect.
. . ." This standard isnot limited by any language requiring serious physical injury; rather, section 34.01 isbroadly 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; 'Cityof Cincinnati v~.McIntosh, 251N.E.2d 624 (Ct.App. Ohio 1969).

p. 4100Honorable Raymond W. Vowel1 -page 2 (H-986)

S.W. 738 (Tex.Civ.App. See Gulf, C. & S.F. Ry.v. Bates, 95 33-76, nowrit]. 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). ithas been generally defined as the failure toperform theduty with which aparent is charged by law and by conscience. Eaglen v. State, 231N.E.2d 147 (Ind. 1967); In reVilas, 475P.2d 615 (Okla. 1970): S.'K.'L. v. Smith, 480 S.W.2d 119 (MO.Ct.App. 1972). SeemMitc'hellv. Davis, 205 S.W.2d 812 (Tex.Civ.App. --Dallas 1947, writ ref'd).
It is clear that section 34.01 isnot limited to serious physical injury; it requires the reporting of circumstances caused by abuse or neglect which may adversely affect the physical ormental health or welfare of a child. It is likewise clear that sexual abuse would adversely affect thephysical ormental health orwelfare of a child and isrequired to be reported. Section 15.02 provides for the termination of the parentchild 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 thephysical 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 thephysical or emotional well-being of the child: or (F) failed to support the child inaccordance with his ability during aperiod of one year ending within sixmonths of the date of the filing of thepetition.
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p. 4101. .

Honorable Raymond W. Vowel1 -page 3 (H-986)

Section 34.05(f) provides that upon receipt of the report and recommendation "the courtmay direct the investigator to file apetition seeking appropriate relief under Subtitle A

II

. . . . Inour view this reference to Subtitle A, of which section 15.02 isapart, in conjunction ~withthe 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 theparent-child relationship under sections 15.02(l) (D)and (E)is required tobe reported under section 34.01. With regard to the failure toprovide adequate food, clothing, and shelter for a child, section 15.02(F) is limited to failure to support "inaccordance with [theparents'] abilityduring aperiod of one year. . . ." However, we do not believe the reporting requirement of section 34.01 is so limited. Subtitle A also provides for suits affecting theparentchild relationship "inwhich the appointment of amanaging conservator or possessory conservator, access toor support of a child
. . .is sought." Sec. 11.01(5). Section 11.11(a) authorizes the court tomake "any temporary order for the safety andwelfare 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) aparent has the "duty to support the child, including providing the child with clothing, food, shelter, medical care, and education.
. . ." A breach of this duty would constitute neglect which is required tobe reported if the "child's physical or mental health orwelfare has been or may be adversely affected" thereby. Sec. 34.01.
You have also asked whether a regulation would be valid which provides that aparent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child would not for that reason alone be considered anegligent parent. You have explained that under this regulation your office would not seek a termination of theparent-child relationship on this basis but would be able topetition for orders providing fornecessarymedical treatment. We believe that such a regulation accurately reflects theprovisions 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 thepower of the court to issue temporary orders and toprovide for the proper care of the child ina suit affecting theparent-child relationship. Accordingly, inour opinion such a regulation would be valid.

p. 4102Honorable Raymond-W. Vowel1 -page 4 (H-986)

Your final question iswhether only aparent or guardian is required to report under section 34.01. That section requires "anyperson" tomake such 'reportsand it is clear that its provisions are not limited to reports by parents and quardians; "[a]ny person having cause tobelieve that a child's physical ormental health orwelfare has been ormay be adversely affected by abuse or neglect shall report.
. . .', (Emphasis added]. - SeeAttorney General Opinion H-494 (1975). 'SU M M A ,RY 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 relationship under section 15.02(1](D) and (E). A regulation which would provide that terminations not be sought solely upon thebasis of failure toprovide medical care due to religious beliefs but that other orders for thewelfare 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.

APPROVED: ttorney General of Texas

Opinion Committee km1

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