W. Va. Code § 149-8-5 - Law Enforcement Responsibilities

5.1. Responding to emergency reports of child abuse and/or neglect or other crimes in which children are present on the scene.

5.1.a. Approaching the scene.

5.1.a.1. Scenes may be classified in one of two manners:

(A) Alleged criminal act involving children is in progress- an emergency situation- or

(B) A complaint of alleged criminal acts involving children that occurred previously and has been reported after the incident has ended- a non-emergency situation.

5.1.a.2. In approaching a reported emergency situation, law enforcement officers should exercise standard precautionary measures, including but not limited to:

5.1.a.2.A. Discontinuing use of lights and sirens before arriving in proximity to the scene.

5.1.a.2.B. Parking at a distance from the scene and making the final approach on foot, in a discreet manner.

5.1.a.2.C. Maintaining awareness of any potential dangers or hazards outside of the immediate scene while approaching- e.g. perpetrator has left the scene but may be in the vicinity.

5.1.a.2.D. Maintaining awareness of potential evidence outside of the immediate scene while approaching- e.g. bloodstains, discarded weapons, shell casings, possible witnesses, vehicles parked near the scene that may have been used by alleged victims or perpetrators to travel to the scene.

5.1.a.3. In approaching a reported non-emergency situation, law enforcement officers should remain aware of potential evidence that may be located outside of the residence - e.g. bloodstains, broken toys, broken windows, accumulated trash around the residence, neglected or maltreated animals, or any indication that the residence would be unsafe or unsanitary for children. If such conditions are observed, the law enforcement officer should document such conditions through the use of photography on a department issued device, if available.

5.1.b. Initial contact.

5.1.b.1. The responding law enforcement officer should identify themselves, explain the law enforcement presence, and request entry into the home or business. The law enforcement officer should ask to see the person who is the subject of the call. The law enforcement officer should not reveal the caller's name.

5.1.b.2. The law enforcement officer may enter and conduct a search of the premises relevant to the incident if written or verbal consent has been given to do so. If a domestic relations protective order is in effect, written consent to enter may have been given by the victim and be on file. The law enforcement officer shall limit the search to a search for other suspects, victims, witnesses, or evidence connected with the alleged domestic incident.

5.1.b.3. If refused entry, the law enforcement officer should be persistent about seeing and speaking alone with the subject of the call. If access to the subject is refused, the law enforcement officer should request the dispatcher/telecommunicator to contact the caller, if the caller is the subject of the call, and communicate between the law enforcement officer and the caller. If sufficient probable cause exists, a law enforcement officer may elect to secure the scene pending the issuance of a search warrant for the premises. If the law enforcement officer leaves the scene, the law enforcement officer should drive by the premises and observe it frequently. If the law enforcement officer remains to observe the premises, the law enforcement officer should move to public property (the street) and observe the premises.

5.1.b.4. In some circumstances, forced entry is necessary and appropriate. Forced entry may be appropriate when the residence area shows signs of a fight or scuffle; or when a person from inside the residence calls for assistance or is yelling; or when a person from inside is visible and the law enforcement officer observes that the person is wounded, injured, or is otherwise in need of assistance.

5.1.c. Establishing control of the scene.

5.1.c.1. If the scene is established as an emergency situation- abuse and/or neglect of children in progress or just occurred- then the law enforcement officer shall undertake immediate action to secure the scene and protect all occupants of the residence.

5.1.c.1.A. Determine if anyone in the residence is armed or is in close proximity to dangerous and deadly weapons. Call for the assistance of other law enforcement officers as necessary to secure the scene.

5.1.c.1.B. Determine if anyone in the residence is in need of immediate medical attention and, if so, render such medical attention as is possible until emergency medical service personnel arrive at the scene.

5.1.c.1.C. To the extent possible, the law enforcement officer should separate the involved parties at the emergency scene and attempt to interview all parties separately. The preferred method for documenting at-scene interviews shall be the use of body camera footage, digital audio and/or digital video recording devices. Even if there are no immediate allegations of child abuse, law enforcement officers shall interview any children present to determine what, if anything, the children within the residence may have heard, seen, or otherwise observed.

5.1.c.1.D. Law enforcement officers present at an emergency scene shall make note of factors within the scene consistent with the possible abuse and/or neglect of children, including but not limited to, dangers within the residence such as exposed wiring or open heating sources, chemicals or dangerous substances within reach of small children, rodent infestation, unsanitary living conditions, broken fixtures within the residence or other indications of inter-personal family violence, including but not limited to bloodstains or visible physical injuries to children or adults within the residence such as bruises, cuts, redness, bite marks, or other injuries. As soon as it may be practical, the law enforcement officer should document any such observations through the use of digital photography.

5.1.c.1.E. The law enforcement officer at the scene shall make a report to child protective services (CPS) through the Centralized Intake hotline (1-800-352-6513) when there is reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect. If CPS is responding per W. Va. Code § 49-2-802(c)(5) and there is an emergency situation in which risk of harm may be posed to the CPS worker, or if an emergency removal of a child may be necessary due to imminent danger as defined in W. Va. Code § 49-1-201, the officer shall maintain a presence at the scene, to assist with the investigation and/or removal. When a law enforcement officer is arresting a parent, if there is a protective caregiver identified by the parent, the officer will ensure an NCIC record check is completed, that the Domestic Violence Database is checked to see if there is an active protective order and the Child Abuse and Neglect Registry is checked for the identified protective caregiver to verify there are no child endangerment criminal histories. If no protective caregiver can be identified then the officer will assume protective custody as defined in W. Va. Code § 49-4-301(a), and contact CPS.

5.1.c.2. If the scene is classified as a non-emergency situation - no violence is in progress or has just occurred - then the law enforcement officer shall proceed to conduct the preliminary investigation using normal investigative protocols.

5.1.c.2.A. When possible, the law enforcement officer should attempt to have a CPS worker accompany them to the scene of any reported incident of child abuse and/or neglect.

5.1.c.2.B. Upon arriving at the scene of a reported incident that is no longer in progress, the law enforcement officer shall use routine precautions to ensure that no one in the residence poses an immediate danger to anyone else present, including the law enforcement officer and/or the CPS worker.

5.1.c.2.C. To the extent possible, the law enforcement officer shall separate all involved parties or witnesses and shall conduct interviews with all involved parties or witnesses. The preferred method is to record all such interviews using body camera footage, digital audio and/or audio-video recording systems.

5.1.c.2.D. In any non-emergency situation, the preferred method shall be for the law enforcement officer to interview any adult victims or witnesses first. If anyone present at the scene makes allegations of potential child abuse and/or neglect, including sexual abuse, sexual assault, human trafficking and/or serious physical abuse, the law enforcement officer and/or CPS worker, if involved, shall attempt to schedule an appointment for the child or children to undergo a forensic interview at the nearest CAC or another neutral setting by a trained forensic interviewer.

5.1.c.2.E. If, during a preliminary investigation, a child discloses allegations of sexual abuse, sexual assault, human trafficking and/or serious physical abuse, the law enforcement officer and/or CPS worker shall attempt to schedule a forensic interview with the child at the closest CAC as soon as possible. If no CAC is available, then the next best location shall be a neutral location, preferably in a child-friendly setting. If no such resources are available, then the law enforcement officer and/or CPS worker present shall conduct and record an initial interview with the child or children using appropriate interviewing techniques at a neutral location.

5.1.c.3. The preferred and recommended method of conducting all non-emergency interviews with children who are the alleged victims of child abuse or neglect or child sexual abuse, shall be to schedule an interview with the child or children at the closest CAC by a neutral forensic interviewer at the earliest possible time, as appropriate to the county based protocols. When no CAC is available for use, the law enforcement officer and/or CPS worker shall undertake every effort to interview the child or children in the most effective manner possible consistent with the health, safety and well-being of the child.

5.2. Initial investigation.

5.2.a. If the law enforcement officer suspects the child is subject to conditions where child abuse and/or neglect has or is likely to occur, make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to of occurred, to mandate a report to CPS.

5.2.b. All cases involving child death, unattended by a medical provider, must be reported to the appropriate medical examiner or coroner.

5.2.c. Child abuse and/or neglect is alleged in the complaint (call).

5.2.c.1. Identify the alleged perpetrator and determine if the perpetrator is a family member or custodian. Also, identify everyone in the residence at the time of the incident for the safety of the children.

5.2.c.1.A. If CPS is on scene or arrives during the on scene investigation:

5.2.c.1.A.1. The law enforcement officer and CPS worker should work together in a manner to protect the alleged victim, other children, and adults in the residence.

5.2.c.1.A.2. Law enforcement may be contacted when CPS is already on scene, after they have been on the scene, or when they are in route to the scene.

5.2.c.1.A.3. Consult with the CPS worker so the law enforcement officer can determine how to intervene.

5.2.c.1.B. Keep children with known adults; whenever possible - identify someone at the scene who can take care of them.

5.2.c.1.C. Check the well-being of all children who are present at the scene or who reside in the home that may have left the scene.

5.2.c.1.D. When applicable, take color photos of the crime scene including any evidence of children's abuse and/or neglect, e.g. interior/exterior condition of the entire residence or facility where abuse occurred, child injuries, parents (if involved).

5.2.c.1.E. List all children who reside in the home and/or all children the alleged perpetrator may have had access to, in the body of the report.

5.2.c.1.F. Avoid making an arrest in the children's presence whenever possible.

5.2.c.2. Interviewing alleged perpetrator.

5.2.c.2.A. Try not to interview the perpetrator in the children's presence. To the extent possible, the law enforcement officer should separate the involved parties at the emergency scene and attempt to interview all parties separately.

5.2.c.2.B. Apply Miranda warning as appropriate to the situation.

5.2.d. Observation/response to child abuse and/or neglect when responding to other alleged crimes.

5.2.d.1. Check for signs of children's presence when observing scenes of all crimes.

5.2.d.2. If children were on the scene at the time of the alleged crime, or personally witnessed the crime, make sure to list them on the incident report as witnesses or in the body of the report. If a child is a victim of any crime, including such crimes as child abuse and/or neglect, list the child as a victim in the report or write a separate report.

5.2.d.3. When taking color photos of the crime scene include any evidence of children's exposure to violence or evidence of child abuse and/or neglect, e.g. crib/child's bed in room where victim was injured, toys broken and thrown around room, interior/exterior condition of the entire residence or facility where abuse occurred, child injuries, parents (if involved).

5.2.d.4. Avoid making an arrest in the children's presence whenever possible.

5.2.d.5. If the officer(s) has reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect, the officer must make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to have occurred, to mandate a report to CPS.

5.2.d.5.A. Child abuse and/or neglect when domestic violence is present. In addition to procedures outlined in the Protocol for Law Enforcement Response to Domestic Violence (149CSR3), the following describes some of the responsibilities of the responding law enforcement officer when children are exposed to a domestic violence incident, or reside in the home.

5.2.d.5.A.1. List all children who reside in the home who were not present during the domestic violence incident in the body of the report.

5.2.d.5.A.2. When taking color photos of the crime scene include any evidence of children's exposure to violence, e.g. crib/child's bed in room where victim was injured, toys broken and thrown around room.

5.2.d.5.A.3. When interviewing parents/custodians, keep in mind that child abuse can be perpetrated by either the suspect or victim of domestic violence or both parties. However, a victim of domestic violence should not be treated as a suspect of child abuse unless there is reasonable cause to believe that the victim has perpetrated some type of abuse upon a child. Treating the victim as a suspect will place the victim in a guarded and defensive state which may impede an investigation and cause further trauma to the victim and child.

5.2.d.5.A.4. When interviewing parents/custodians, ask about the children and their location during the incident.

5.2.d.5.B. Child abuse and/or neglect with drug endangerment by parent/custodian. In addition to procedures outlined in these rules and existing or established department procedures for responding to calls when substance abuse/illegal use of substances is present, the following describes some of the responsibilities of the responding law enforcement officer when children are exposed to substance abuse/illegal use, or reside in the home.

5.2.d.5.B.1. Observe for access to controlled substances by children and/or manufacture of controlled substances with children present.

5.2.d.5.B.2. When taking color photos of the crime scene include any evidence of children's access to or ingestion of controlled substances, e.g. crib/child's bed in room where controlled substances are found or manufactured, or drug paraphernalia within reach of children.

5.2.d.5.B.3. If the law enforcement officer has reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect, the law enforcement officer must make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to have occurred, to mandate a report to CPS per W.Va. Code § 49-2-803.

5.2.e. Do not use children present on scene as non-English speaking or sign language interpreters. To do so will increase their trauma. It puts them in a situation of divided loyalty, and they may fear repercussions from the aggressor in the incident. Their translation may also be unreliable, because it is affected by their own emotional state. Some jurisdictions require that no family members be used to translate interviews. In cases where the accused or victim does not speak English, law enforcement officer should use a neutral interpreter. Officers shall not use family, friends, and especially children, to provide interpreter services.

5.2.f. Taking emergency custody without a court order.

5.2.f.1. A law enforcement officer may take emergency custody of a child believed to be abused and/or neglected without a court order if (1) the child is without supervision or shelter for an unreasonable period of time in light of the child's age and the ability to care for himself or herself in circumstances presenting an immediate threat of serious harm to that child; or (2) the law enforcement officer determines that a child is in a condition requiring emergency medical treatment by a physician and the child's parents, parent, guardian or custodian refuses to permit such treatment, or is unavailable for consent (W.Va. Code § 49-4-301).

5.2.f.1.A. If the law enforcement officer discovers an abandoned child, the law enforcement officer cannot remove the child as abandoned from a place until all reasonable efforts to make inquiries and arrangements with neighbors, relatives and friends have been exhausted. No child may be considered abandoned, and custody withheld from the child's parent(s), guardian or custodian if they present themselves in a fit and proper condition and request physical custody of such child. Prior to taking a child into protective custody as abandoned, the law enforcement officer shall post a typed or legibly handwritten notice at the place the child is found, informing the parent(s), guardian or custodian that the child was taken by a law-enforcement officer, the name, address and office telephone number of the law enforcement officer, the place and telephone number where information can continuously be obtained as to the child or children's whereabouts, and if known, the CPS worker for DoHS having responsibility for the child.

5.2.f.1.B. A law enforcement officer may take emergency custody of a child without a court order for conditions requiring emergency medical treatment. A condition requiring emergency medical treatment means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage. Such conditions include, but are not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness and/or evidence of ingestion of significant amounts of a dangerous substance. When a law enforcement officer takes custody of a child due to the child requiring emergency medical treatment, the law enforcement officer must assure that the child is taken directly to an appropriate medical facility. The law enforcement officer must provide the child's parent(s), guardian or custodian the name and location of the medical facility to which the child is being taken.

5.2.f.2. When transferring emergency custody to a physician or worker from the West Virginia DoHS, the law enforcement officer must provide a typed or legibly handwritten statement identifying the law enforcement officer's name, address and office telephone number and specifying all the facts upon which the decision to take the child into protective custody was based, the date, time and place of the taking. If custody is being transferred to CPS, the CPS worker may provide the law enforcement officer an emergency placement contract that would meet these requirements.

5.3. Responding to non-emergency reports of crimes against children or conducting an on-going investigation after establishing control of an emergency situation.

5.3.a. Reports may be received from any person by any means, either verbal, electronic or hand-written.

5.3.b. Case assignment.

5.3.b.1. Upon receipt of a report, case assignment for investigation should be made immediately, not exceeding 24 hours. Cases should be assigned by the law enforcement official of the agency or by the prosecuting attorney.

5.3.b.2. The following criteria are considered best practice when determining case assignment:

5.3.b.2.A. The law enforcement officer should have training specific to child abuse and/or neglect and experience in child abuse and/or neglect investigations.

5.3.b.2.B. The investigative law enforcement officer shall provide updates through a formal mechanism to the MDIT case reviews or monthly meetings and meet with members of the MDIT, upon request.

5.3.c. Victim Interview.

5.3.c.1. Pre-interview.

5.3.c.1.A. The law enforcement officer should observe, inquire, and report the evidence of any special needs of the allegedly abused child. This may include, but is not limited to: physical and/or developmental disability and communication issues such as language, speech, or deafness, if the child is noncommunicative or has autism. Information related to special needs of the child should be provided to the CAC or forensic interviewer.

5.3.c.1.B. The law enforcement officer should make the necessary referral for the forensic interview as soon as possible, not exceeding 72 hours, as appropriate to the needs of the case.

5.3.c.1.C. The law enforcement officer should review information concerning this allegation and the background of the alleged victim or perpetrator, as reasonably available.

5.3.c.2. During the interview.

5.3.c.2.A. The investigating law enforcement officer should be present at the time of the interview, although not present in the interview room unless the law enforcement officer is conducting the forensic interview.

5.3.c.2.B. The best practice model for a forensic interview shall be for the investigating law enforcement officer or interviewer to address the recording prior to the initiation of the actual forensic interview, for the purpose of recording the date, time, and location of the forensic interview, the name and contact information of the child being interviewed, the person conducting the forensic interview, and all persons present and observing the forensic interview.

5.3.c.2.C. All interviews should be conducted by a trained forensic interviewer in a neutral location, preferably in a child-friendly setting that provides a comfortable, private setting that is both physically and psychologically safe for clients per W.Va. Code § 49-3-101. Interviews must be conducted at a CAC, if available, and appropriate to county-based protocols.

5.3.c.2.D. Interviews are recorded pursuant to the protocol of the local CAC and DoHS. It is advisable for law enforcement to ensure that an additional digital recording device is used for back-up during any forensic interview consistent with W.Va. Code § 62-6B-6.

5.3.c.3. Post-interview.

5.3.c.3.A. The law enforcement officer should collaborate with appropriate MDIT members for investigative coordination.

5.3.c.3.B. The law enforcement officer should make a referral to an appropriate member of the MDIT to ensure the alleged victim is connected to appropriate services.

5.3.c.3.C. The law enforcement officer should advise parties of the availability of domestic violence protective order or personal safety orders through magistrate court as appropriate to the needs of the case.

5.3.d. Alleged perpetrator interview.

5.3.d.1. The law enforcement officer should conduct the interview of the alleged perpetrator as soon as possible when there is sufficient evidence to warrant the interview or, in no case to exceed 72 hours following child interview without documented reasonable cause. If the interview will not occur within the 72 hour window, the law enforcement officer must report to the prosecuting attorney's office and seek consultation.

5.3.d.2. The interview of the alleged perpetrator should be video recorded, if available; if video recording is not available, the interview must be audio recorded at a minimum.

5.3.d.3. The law enforcement officer shall apply Miranda warnings as necessary and appropriate.

5.3.e. Evidence Collection.

5.3.e.1. The law enforcement officer should regularly consult with the prosecuting attorney, as warranted by circumstances of the case.

5.3.e.2. The law enforcement officer should check with MDIT members for evidence. This may include, but is not limited to: CAC records, CPS records, medical records, and mental health records.

5.3.e.3. The law enforcement officer should look for credible evidence, which means evidence of the victim's condition which may include, but is not limited to, physical injury, evidence of malnutrition, untreated injury or disease, lack of proper hygiene, bite marks, or evidence of sexual abuse.

5.3.e.3.A. Credible evidence of the condition of the accused may include, but is not limited to, physical injury, sexually transmitted diseases, or behaviors inconsistent with providing a minimal degree of care and supervision for a minor child.

5.3.e.3.B. Credible evidence of the condition of the scene may include, but is not limited to, lack of adequate food, clothing, or shelter, lack of heating, cooling, or ventilation, conditions which could reasonably pose a hazard to children such as uncontrolled access to hot surfaces or open flames, exposed wiring, insect or rodent infestation, manufacture or distribution of controlled substances, or a general deficiency of commonly accepted sanitary standards.

5.3.e.3.C. Other credible evidence may include, but is not limited to, medical records of the child, school attendance records, statements of uninvolved witnesses including but not limited to teachers or other mandated reporters, statements by the accused admitting one or more elements of the offense, or threats made by the accused in the presence of a law enforcement officer, audible evidence of a disturbance heard by the dispatcher/telecommunicator or other agent receiving the request for law enforcement assistance; or written statements by witnesses.

5.3.e.3.D. The recorded and documented statement of a child victim alone may serve as credible evidence for the basis of investigation and prosecution.

5.3.e.4 The law enforcement officer should look for credible corroborative evidence, which means evidence that is worthy of belief and corresponds with the allegations of one or more elements of the offense and may include, but is not limited to, the condition of the victim, the accused, and the scene.

5.3.e.5. Other evidence may include, but is not limited to:

5.3.e.5.A. Medical or mental health records of the alleged perpetrator or alleged victim, to be secured by appropriate subpoena and/or release, as may be necessary;

5.3.e.5.B. Criminal background check of the alleged perpetrator;

5.3.e.5.C. School records;

5.3.e.5.D. Information technology records, including but not limited to: phone records, computer hard drives, internet communications, and text messages;

5.3.e.5.E. 911 recordings;

5.3.e.5.F. Witness interviews;

5.3.e.5.G. Jail telephone recordings and communication logs;

5.3.e.5.H. Surveillance video; and

5.3.e.5.I. Threatening communications with the alleged victim and/or family members.

5.3.e.6. The law enforcement officer should obtain a search warrant or signed voluntary consent to search for the premises where the alleged incident is reported to have occurred and for other premises or vehicles, as deemed relevant to the investigation.

5.3.f. Arrest/Prosecution.

5.3.f.1. The arrest decision should be made on a case by case basis in consultation with the prosecuting attorney, considering the child's safety and facts of the case.

5.3.f.2. The investigating law enforcement officer shall consult with the prosecuting attorney to deem the appropriate time for presentation to a grand jury and, in anticipation of the grand jury presentation, the law enforcement officer shall prepare an investigation report that may include but not be limited to:

5.3.f.2.A. Completion of the report format utilized by his or her agency;

5.3.f.2.B. Narrative of the circumstances of the crime alleged;

5.3.f.2.C. List of witnesses, including full names, addresses, and telephone numbers;

5.3.f.2.D. Recorded statements of the alleged perpetrator and other witnesses;

5.3.f.2.E. Recorded forensic interview of the alleged victim;

5.3.f.2.F. All medical and mental health records secured as a part of the investigation;

5.3.f.2.G. Any forensic or medical tests for which results remain pending;

5.3.f.2.H. Any documentary evidence secured by subpoenas or search warrants;

5.3.f.2.I. Inventory of physical evidence and its location.

5.3.f.3. The investigation report shall be delivered to the prosecuting attorney in accordance with the instructions provided by the prosecuting attorney.

5.3.f.4. Separate and apart from the investigation report, all other notes or documents prepared by the law enforcement officer as a part of the law enforcement officer's work product in conducting the investigation shall be delivered to the prosecuting attorney apart from, but simultaneously with the investigation report.

Notes

W. Va. Code § 149-8-5