Request By:
Honorable R. Hughes Walker
General Counsel
Cabinet for Human Resources
275 East Main street
4-West
Frankfort, Kentucky 4062l
Opinion
Opinion By: David L. Armstrong, Attorney General
As General Counsel for the Cabinet for Human Resources, you have asked the Office of the Attorney General to render an opinion concerning whether the Kentucky statute defining "abused or neglected child" is in compliance with the 1984 amendments to the Federal Child Abuse and Neglect Act and the regulations promulgated under that Act. The regulations, specifically CFR § 1340.2(d), include the failure to provide adequate medical care and sexual exploitation within the definition of child abuse or neglect.
First you ask whether the present statute defining abuse or neglect, KRS 199.011(6), includes a provision for medical neglect. KRS 199.011(6) provides:
(6) "Abused or neglected child" means a child whose health or welfare is harmed or threatened with harm when his parent, guardian or other person who has the permanent or temporary care, custody or responsibility for the supervision of the child: inflicts or allows to be inflicted upon the child, physical or mental injury to the child by other than accidental means, creates or allows to be created a risk of physical or mental injury to the child by other than accidental means; commits or allows to be committed an act of sexual abuse upon the child; willfully abandons or exploits such child; does not provide the child with adequate care and supervision; food, clothing and shelter; education; or medical care necessary for the child's well-being; provided, however, that a parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or gusardian. This exception, however, shall not preclude a court from ordering that medical services be provided to the child, where his health requires it.
As was recently stated in OAG 85-102, KRS 199.011(6) clearly includes, by its precise language, the failure to provide adequate medical care in its definition of child abuse or neglect.
Second, you ask whether a proposed amendment to KRS 199.011(6) would meet the aforementioned requirements of the Child Abuse and Neglect Act (and more particularly 45 CFR § 1340 (2)(d)(2)) to include sexual exploitation in the definition of neglect or abuse. The proposed amendment would be requested of the 1986 Session of the Kentucky Legislature and would amend KRS 199.011(6) by adding the words "including sexual exploitation" after:
. . . commits or allows to be committed an act of sexual abuse upon the child;
From a review of the above referred to provisions, it is our opinion that the amendment to KRS 199.011(6) enables the Kentucky Cabinet for Human Resources to meet the requirements of 45 CFR § 1340.2(d)(2) by including "sexual exploitation" in the definition of neglect and abuse.