12-18-103. Definitions.

12-18-103. Definitions. As used in this chapter: (1)(A) “Abandonment” means: (i) The failure of a parent to provide reasonable support and to maintain regular contact with a child through statement or contact when the failure is accompanied by an intention on the part of the parent to permit the condition to continue for an indefinite period in the future or the failure of a parent to support or maintain regular contact with a child without just cause; or (ii) An articulated intent to forego parental responsibility. (B) “Abandonment” does not include: (i) Acts or omissions of a parent toward a married minor; or (ii) A situation in which a child has disrupted his or her adoption and the adoptive parent has exhausted the available resources; (2)(A) “Abortion” means the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will with reasonable likelihood cause the death of the unborn child. (B) “Abortion” does not mean the act of using or prescribing any instrument, medicine, drug, or any other substance, device, or means with the intent to terminate the clinically diagnosable pregnancy if done with the intent to: (i) Save the life or preserve the health of the unborn child; (ii) Remove a dead unborn child caused by spontaneous abortion; or (iii) Remove an ectopic pregnancy; (3)(A) “Abuse” means any of the following acts or omissions by a parent, guardian, custodian, foster parent, person eighteen (18) years of age or older living in the home with a child whether related or unrelated to the child, or any person who is entrusted with the child's care by a parent, guardian, custodian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, a significant other of the child's parent, or any person legally responsible for the child's welfare, but excluding the spouse of a minor: (i) Extreme or repeated cruelty to a child; (ii) Engaging in conduct creating a realistic and serious threat of death, permanent or temporary disfigurement, or impairment of any bodily organ; (iii) Injury to a child's intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the child's ability to function within the child's normal range of performance and behavior; (iv) Any injury that is at variance with the history given; (v) Any nonaccidental physical injury; (vi) Any of the following intentional or knowing acts, with physical injury and without justifiable cause: (a) Throwing, kicking, burning, biting, or cutting a child; (b) Striking a child with a closed fist; (c) Shaking a child; or (d) Striking a child on the face or head; (vii) Any of the following intentional or knowing acts, with or without physical injury: (a) Striking a child six (6) years of age or younger on the face or head; (b) Shaking a child three (3) years of age or younger; (c) Interfering with a child's breathing; (d) Pinching, biting, or striking a child in the genital area; (e) Tying a child to a fixed or heavy object or binding or tying a child's limbs together; (f) Giving a child or permitting a child to consume or inhale a poisonous or noxious substance not prescribed by a physician that has the capacity to interfere with normal physiological functions; (g) Giving a child or permitting a child to consume or inhale a substance not prescribed by a physician that has the capacity to alter the mood of the child, including, but not limited to, the following: (1) Marijuana; (2) Alcohol, excluding alcohol given to a child during a recognized and established religious ceremony or service; (3) A narcotic; or (4) An over-the-counter drug if a person purposely administers an overdose to a child or purposely gives an inappropriate over-the-counter drug to a child and the child is detrimentally impacted by the overdose or the over-the-counter drug; (h) Exposing a child to a chemical that has the capacity to interfere with normal physiological functions, including, but not limited to, a chemical used or generated during the manufacture of methamphetamine; or (i) Subjecting a child to Munchausen syndrome by proxy or a factitious illness by proxy if the incident is confirmed by medical personnel; (viii) Recruiting, harboring, transporting, or obtaining a child for labor or services, through force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery; or (ix) Female genital mutilation. (B)(i) The list in subdivision (3)(A) of this section is illustrative of unreasonable action and is not intended to be exclusive. (ii) No unreasonable action shall be construed to permit a finding of abuse without having established the elements of abuse. (C)(i) “Abuse” does not include physical discipline of a child when it is reasonable and moderate and is inflicted by a parent or guardian for purposes of restraining or correcting the child. (ii) “Abuse” does not include when a child suffers transient pain or minor temporary marks as the result of an appropriate restraint if: (a) The person exercising the restraint is: (1) An employee of a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act, § 9-28-401 et seq.; and (2) Acting in his or her official capacity while on duty at a child welfare agency licensed or exempted from licensure under the Child Welfare Agency Licensing Act, § 9-28-401 et seq.; (b) The child welfare agency has policy and procedures regarding restraints; (c) No other alternative exists to control the child except for a restraint; (d) The child is in danger or hurting himself or herself or others; (e) The person exercising the restraint has been trained in properly restraining children, de-escalation, and conflict resolution techniques; (f) The restraint is for a reasonable period of time; and (g) The restraint is in conformity with training and child welfare agency policy and procedures. (iii) Reasonable and moderate physical discipline inflicted by a parent or guardian does not include any act that is likely to cause and which does cause injury more serious than transient pain or minor temporary marks. (iv) The age, size, and condition of the child and the location of the injury and the frequency or recurrence of injuries shall be considered when determining whether the physical discipline is reasonable or moderate; (4) “Caretaker” means a parent, guardian, custodian, foster parent, or any person fourteen (14) years of age or older who is entrusted with a child's care by a parent, guardian, custodian, or foster parent, including without limitation, an agent or employee of a public or private residential home, child care facility, public or private school, or any person responsible for a child's welfare, but excluding the spouse of a minor; (5)(A) “Central intake”, otherwise referred to as the “Child Abuse Hotline”, means a unit that shall be established by the Department of Human Services for the purpose of receiving and recording notification made pursuant to this chapter. (B) The Child Abuse Hotline shall be staffed twenty-four (24) hours per day and shall have statewide accessibility through a toll-free telephone number; (6) “Child” or “juvenile” means an individual who is from birth to eighteen (18) years of age; (7) “Child maltreatment” means abuse, sexual abuse, neglect, sexual exploitation, or abandonment; (8) “Department” means the Department of Human Services and the Division of Arkansas State Police; (9) “Deviate sexual activity” means any act of sexual gratification involving: (A) Penetration, however slight, of the anus or mouth of one person by the penis of another person; or (B) Penetration, however slight, of the labia majora or anus of one person by any body member or foreign instrument manipulated by another person; (10)(A)(i) “Forcible compulsion” means physical force, intimidation, or a threat, express or implied, of physical injury to or death, rape, sexual abuse, or kidnapping of any person. (ii) If the act was committed against the will of the child, then forcible compulsion has been used. (B) The age, developmental stage, and stature of the victim and the relationship of the victim to the assailant, as well as the threat of deprivation of affection, rights, and privileges from the victim by the assailant, shall be considered in weighing the sufficiency of the evidence to prove forcible compulsion; (11) “Guardian” means any person, agency, or institution, as defined by § 28-65-101 et seq., whom a court of competent jurisdiction has so appointed; (12) “Indecent exposure” means the exposure by a person of the person's sexual organs for the purpose of arousing or gratifying the sexual desire of the person or of any other person under circumstances in which the person knows the conduct is likely to cause affront or alarm; (13) “Near fatality” means an act that, as certified by a physician, places the child in serious or critical condition; (14)(A) “Neglect” means those acts or omissions of a parent, guardian, custodian, foster parent, or any person who is entrusted with the child's care by a parent, custodian, guardian, or foster parent, including, but not limited to, an agent or employee of a public or private residential home, child care facility, public or private school, or any person legally responsible under state law for the child's welfare, but excluding the spouse of a minor and the parents of the married minor, which constitute: (i) Failure or refusal to prevent the abuse of the child when the person knows or has reasonable cause to know the child is or has been abused; (ii) Failure or refusal to provide necessary food, clothing, shelter, or medical treatment necessary for the child's well-being, except when the failure or refusal is caused primarily by the financial inability of the person legally responsible and no services for relief have been offered; (iii) Failure to take reasonable action to protect the child from abandonment, abuse, sexual abuse, sexual exploitation, neglect, or parental unfitness when the existence of the condition was known or should have been known; (iv) Failure or irremediable inability to provide for the essential and necessary physical, mental, or emotional needs of the child, including the failure to provide a shelter that does not pose a risk to the health or safety of the child; (v) Failure to provide for the child's care and maintenance, proper or necessary support, or medical, surgical, or other necessary care; (vi) Failure, although able, to assume responsibility for the care and custody of the child or to participate in a plan to assume such responsibility; (vii) Failure to appropriately supervise the child that results in the child's being left alone: (a) At an inappropriate age creating a dangerous situation or a situation that puts the child at risk of harm; or (b) In inappropriate circumstances creating a dangerous situation or a situation that puts the child at risk of harm; (viii) Failure to appropriately supervise the child that results in the child's being placed in: (a) Inappropriate circumstances creating a dangerous situation; or (b) A situation that puts the child at risk of harm; (ix) Failure to ensure a child between six (6) years of age and seventeen (17) years of age is enrolled in school or is being legally home-schooled; or (x) An act or omission by the parent, custodian, or guardian of the child that results in the child's being habitually and without justification absent from school. (B)(i) “Neglect” shall also include: (a) Causing a child to be born with an illegal substance present in the child's bodily fluids or bodily substances as a result of the pregnant mother's knowingly using an illegal substance before the birth of the child; or (b) At the time of the birth of a child, the presence of an illegal substance in the mother's bodily fluids or bodily substances as a result of the pregnant mother's knowingly using an illegal substance before the birth of the child. (ii) As used in this subdivision (14)(B), “illegal substance” means a drug that is prohibited to be used or possessed without a prescription under the Arkansas Criminal Code, § 5-1-101 et seq. (iii) A test of the child's bodily fluids or bodily substances may be used as evidence to establish neglect under subdivision (14)(B)(i)(a) of this section. (iv) A test of the mother's bodily fluids or bodily substances may be used as evidence to establish neglect under subdivision (14)(B)(i)(b) of this section; (15) “Parent” means a biological mother, an adoptive parent, or a man to whom the biological mother was married at the time of conception or birth or who has been found by a court of competent jurisdiction to be the biological father of the child; (16) “Pornography” means: (A) Pictures, movies, or videos that lack serious literary, artistic, political, or scientific value and that, when taken as a whole and applying contemporary community standards, would appear to the average person to appeal to the prurient interest; (B) Material that depicts sexual conduct in a patently offensive manner lacking serious literary, artistic, political, or scientific value; or (C) Obscene or licentious material; (17) “Reproductive healthcare facility” means any office, clinic, or any other physical location that provides abortions, abortion counseling, abortion referrals, contraceptives, contraceptive counseling, sex education, or gynecological care and services; (18) “Serious bodily injury” means bodily injury that involves substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty; (19) “Severe maltreatment” means sexual abuse, sexual exploitation, acts or omissions that may or do result in death, abuse involving the use of a deadly weapon as defined by § 5-1-102, bone fracture, internal injuries, burns, immersions, suffocation, abandonment, medical diagnosis of failure to thrive, or causing a substantial and observable change in the behavior or demeanor of the child; (20) “Sexual abuse” means: (A) By a person fourteen (14) years of age or older to a person younger than eighteen (18) years of age: (i) Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; (ii) Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; (iii) Indecent exposure; or (iv) Forcing the watching of pornography or live sexual activity; (B) By a person eighteen (18) years of age or older to a person not his or her spouse who is younger than fifteen (15) years of age: (i) Sexual intercourse, deviate sexual activity, or sexual contact; (ii) Attempted sexual intercourse, deviate sexual activity, or sexual contact; or (iii) Solicitation of sexual intercourse, deviate sexual activity, or sexual contact; (C) By a person twenty (20) years of age or older to a person not his or her spouse who is younger than sixteen (16) years of age: (i) Sexual intercourse, deviate sexual activity, or sexual contact; (ii) Attempted sexual intercourse, deviate sexual activity, or sexual contact; or (iii) Solicitation of sexual intercourse, deviate sexual activity, or sexual contact; (D) By a caretaker to a person younger than eighteen (18) years of age: (i) Sexual intercourse, deviate sexual activity, or sexual contact; (ii) Attempted sexual intercourse, deviate sexual activity, or sexual contact; (iii) Forcing or encouraging the watching of pornography; (iv) Forcing, permitting, or encouraging the watching of live sexual activity; (v) Forcing the listening to a phone sex line; (vi) An act of voyeurism; or (vii) Solicitation of sexual intercourse, deviate sexual activity, or sexual contact; (E) By a person younger than fourteen (14) years of age to a person younger than eighteen (18) years of age: (i) Sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; or (ii) Attempted sexual intercourse, deviate sexual activity, or sexual contact by forcible compulsion; or (F) By a person eighteen (18) years of age or older to a person who is younger than eighteen (18) years of age, the recruiting, harboring, transporting, obtaining, patronizing, or soliciting of a child for the purpose of a commercial sex act; (21)(A)(i) “Sexual contact” means any act of sexual gratification involving: (a) The touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female; (b) The encouraging of a child to touch the offender in a sexual manner; or (c) The offender requesting to touch a child in a sexual manner. (ii) Evidence of sexual gratification may be inferred from the attendant circumstances surrounding the specific complaint of child maltreatment. (B) “Sexual contact” does not include normal affectionate hugging; (22) “Sexual exploitation” means: (A) The following by a person eighteen (18) years of age or older to a child who is not his or her spouse: (i) Allowing, permitting, or encouraging participation or depiction of the child in: (a) Prostitution; (b) Obscene photography; or (c) Obscene filming; or (ii) Obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose; (B) The following by a caretaker to a child: (i) Allowing, permitting, or encouraging participation or depiction of the child in: (a) Prostitution; (b) Obscene photography; or (c) Obscene filming; or (ii) Obscenely depicting, obscenely posing, or obscenely posturing the child for any use or purpose; (23) “Significant other” means a person: (A) With whom the parent shares a household; or (B) Who has a relationship with the parent that results in the person's acting in loco parentis with respect to the parent's child or children, regardless of living arrangements; (24) “Subject of the report” means: (A) The offender; (B) The custodial and noncustodial parents, guardians, and legal custodians of the child who is subject to suspected maltreatment; and (C) The child who is the subject of suspected maltreatment; (25) “Underaged juvenile offender” means any child younger than fourteen (14) years of age for whom a report of sexual abuse has been determined to be true for sexual abuse to another child; (26) “Voyeurism” means looking, for the purpose of sexual arousal or gratification, into a private location or place in which a child may reasonably be expected to be nude or partially nude; (27) “Died suddenly and unexpectedly” means a child death that was not caused by a known disease or illness for which the child was under a physician's care at the time of death, including without limitation a child death as a result of the following: (A) Sudden infant death syndrome; (B) Sudden unexplained infant death; (C) An accident; (D) A suicide; (E) A homicide; or (F) Other undetermined circumstance; (28)(A) “Female genital mutilation” means a procedure that involves the partial or total removal of the external female genitalia or any procedure harmful to the female genitalia, including without limitation: (i) A clitoridectomy; (ii) The partial or total removal of the clitoris or the prepuce; (iii) The excision or the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora; (iv) The infibulation or the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning the labia minora or the labia majora, with or without excision of the clitoris; (v) Pricking, piercing, incising, scraping, or cauterizing the genital area; or (vi) Any other action to purposely alter the structure or function of the female genitalia for a nonmedical reason. (B) “Female genital mutilation” does not include acts or conduct that otherwise would be considered female genital mutilation if the acts or conduct occur in the furtherance of a surgical or other lawful medical procedure, performed by a licensed medical professional, and: (i) Is necessary to preserve or protect the physical health of the child upon whom the surgical or other lawful medical procedure was performed; or (ii) Is part of a sex reassignment procedure as requested by the child who was the patient in the sex reassignment procedure; (29) “Family member” means a person within the fifth degree of consanguinity by virtue of blood or adoption; (30) “Fictive kin” means a person who: (A) Is not related to a child by blood or marriage; and (B) Has a strong, positive, and emotional tie or role in the: (i) Life of the child; or (ii) Life of the parent of the child if the child is an infant; and (31) “Imminent harm” means an act of harm that is a danger: (A) To the physical, mental, or emotional health of a child; (B) That is constrained by time; and (C) That may only be prevented by immediate intervention by a court.