West Virginia Code of State Rules
Agency 149 - Crime, Delinquency And Correction
Title 149 - LEGISLATIVE RULE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION
Series 149-08 - Protocol for Law Enforcement Response to Child Abuse and Neglect
Section 149-8-5 - Law Enforcement Responsibilities

(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.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.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 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 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 determine if CPS shall be notified of the potential child abuse and/or neglect situation and shall maintain a presence at the scene until a CPS worker can arrive at the scene to assist with the investigation.

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 insure 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 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 and/or CPS worker to interview any adult victims or witnesses first. If any adult present at the scene alleges the potential of child abuse and/or neglect the law enforcement officer and/or CPS worker 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 physical abuse and/or sexual 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 at the scene shall conduct and record an interview with the child or children using appropriate forensic interviewing techniques.

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

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

5.2.a.1.C. Check the well-being of all children who reside in the home.

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

5.2.a.1.G. 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. 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.a.1.H. All cases involving child death, unattended by a medical provider, must be reported to the appropriate medical examiner or coroner.

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

5.2.b.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.b.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.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 the state department having responsibility for the child.

5.2.d.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.

5.3.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 law enforcement officer must collaborate with members of the MDIT.

5.3.b.2.C. The law enforcement officer must be personally present or provide updates through a formal mechanism to the MDIT case reviews or monthly meetings.

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. 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.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 shall be conducted by a trained forensic interviewer in a neutral location, preferably in a child-friendly setting. 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 DHHR. It is advisable for law enforcement to ensure that an additional digital recording device is used for back-up during any forensic 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.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 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.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.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.