Texas Administrative Code
Title 40 - SOCIAL SERVICES AND ASSISTANCE
Part 19 - DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 707 - CHILD PROTECTIVE INVESTIGATIONS
Subchapter C - CHILD CARE INVESTIGATIONS
Division 5 - ABUSE, NEGLECT, AND EXPLOITATION
Section 707.801 - What is neglect?

Universal Citation: 40 TX Admin Code ยง 707.801

Current through Reg. 49, No. 38; September 20, 2024

(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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