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                 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
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        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




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