| (a) Neglect is defined in Texas Family Code (TFC) §261.001
as an act or failure to act by a person responsible for a child’s
care, custody, or welfare evidencing the person’s blatant disregard
for the consequences of the act or failure to act that results in
harm to the child or that creates an immediate danger to the child’s
physical health or safety. Neglect for purposes of an investigation
in a child care operation is further defined in TFC §261.001(4)(A)(iv)
as a negligent act or omission by an employee, volunteer, or other
individual working under the auspices of a facility or program, including
failure to comply with an individual treatment plan, plan of care,
or individualized services plan that causes or may cause substantial
emotional harm or physical injury to, or the death of, a child served
by the facility or program as further described by rule or policy.
(b) In this section, the following terms have the following
meanings:
(1) "Negligent act or omission" means a breach of duty
by an employee, volunteer, or other individual working under the auspices
of a facility or program that causes or may cause substantial emotional
harm or substantial physical injury to a child and includes the following:
(A) Failure to take an action that a reasonable member
of that profession, reasonable caregiver, or reasonable person should
take in the same situation;
(B) Taking an action that a reasonable member of that
profession, reasonable caregiver, or reasonable person should not
take in the same situation;
(C) Placing a child in or failing to remove him from
a situation that a reasonable member of that profession, reasonable
caregiver, or reasonable person would realize requires judgment or
actions beyond the child's level of maturity, physical condition,
or mental abilities;
(D) Leaving a child in a situation where a reasonable
member of that profession, reasonable caregiver, or reasonable person
would expect the child to be exposed to substantial emotional harm
or substantial physical injury without arranging for necessary care
for the child;
(E) Failure to seek, to obtain, or to follow through
with medical care for a child;
(F) Failure to provide a child with food, clothing,
and shelter necessary to sustain the life or health of the child;
(G) Placing a child in or failing to remove the child
from a situation in which a reasonable member of that profession,
reasonable caregiver, or reasonable person should know exposes the
child to immediate danger of sexual conduct;
(H) Causing, expressly permitting, or encouraging a
child to use alcohol;
(I) Using alcohol in a manner or to the extent that
the use results in substantial emotional harm or physical injury to
a child;
(J) A violation or deficiency of any law, rule, or
minimum standard that causes substantial emotional harm or physical
injury to a child;
(K) Repeated (two or more) violations of any law, rule,
or minimum standard, after notice and an opportunity to correct the
violation, that may cause substantial emotional harm or physical injury
to a child;
(L) Failure to comply with an individual treatment
plan, plan of service, or individualized service plan that causes
or may cause substantial emotional harm or physical injury to a child;
and
(M) Repeated failures (two or more) to comply with
an individual treatment plan, plan of service, or individualized service
plan, after notice and an opportunity to correct the failure, that
may cause substantial emotional harm or physical injury to a child.
(2) Blatant disregard means that the real and significant
harm or threat of harm to the child as a result of act(s) or omission(s)
by the employee, volunteer, or other individual working under the
auspices of a facility or program:
(A) Would have been obvious to a reasonable caregiver
or a reasonable member of the individual’s profession in the
same situation; and
(B) The reasonable caregiver or reasonable member of
the individual’s profession would have known to take precautionary
measures to protect the child from the impending harm.
(3) "Employee, volunteer, or other individual working
under the auspices of a facility or program" has the same definition
as specified in §707.783(b) in this division (relating to Who
is considered a person responsible for a child's care, custody, or
welfare for purposes of a child abuse, neglect, or exploitation investigation
in a child care operation?).
(4) Immediate danger to child’s physical health
or safety means the act(s) or omission(s) by the employee, volunteer,
or other individual working under the auspices of a facility or program
placed the child in a situation that resulted in or would have resulted
in substantial emotional harm or substantial physical injury to the
child.
(5) Substantial emotional harm means an observable
impairment in a child's psychological growth, development, or functioning
that is significant enough to require treatment by a medical or mental
health professional. Evidence that the emotional harm is substantial
includes the nature of the act or omission, the age of the child,
and/or the persistence of the symptoms. Substantial emotional harm
is presumed when the act or omission is of a sexual nature, the child
acts out sexually, or the child attempts suicide. A mental health
professional does not have to determine that there is substantial
emotional harm.
(6) Substantial physical injury means bodily harm that
warrants treatment by a medical professional, including dislocated,
fractured, or broken bones; concussions; lacerations requiring stitches;
second and third degree burns; and damage to internal organs. Evidence
that physical injury is substantial includes the location and/or severity
of the bodily harm and/or the age of the child.
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