Commonwealth v. Santos ( 2018 )

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18-P-100 Appeals Court
COMMONWEALTH vs. ELIUZA A. SANTOS.
No. 18-P-100.
Essex. October 11, 2018. - December 12, 2018.
Present: Henry, Shin, & Singh, JJ.
Reckless Endangerment of a Child. Practice, Criminal,
Dismissal. Probable Cause.
Complaint received and sworn to in the Lynn Division of the
District Court Department on May 25, 2016.
A motion to dismiss was heard by Cathleen E. Campbell, J.
Catherine Patrick Sullivan, Assistant District Attorney,
for the Commonwealth.
Edward Crane for the defendant.
SHIN, J. We decide in this case whether the defendant's
failure to supervise her three year old daughter, both inside
and outside the home, gives rise to probable cause to believe
that she committed the crime of reckless endangerment of a
child. See G. L. c. 265, § 13L. Finding a lack of probable
cause, a District Court judge allowed the defendant's motion to
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dismiss the complaint, and the Commonwealth appeals. We agree
with the judge that the defendant's act of leaving the child
alone in front of the television for ten to fifteen minutes does
not establish probable cause that she acted recklessly. But we
conclude that, once the defendant realized that the child had
wandered from the home, she had a duty to search for her, and
evidence that she stopped searching and failed to enlist others
to search was sufficient to meet the probable cause requirement.
We therefore vacate the order of dismissal.
Background. The application for a complaint alleged as
follows. Around 10:50 A.M. on May 13, 2016, Saugus police
Officer Jeffrey Wood was dispatched to an elementary school
following a report of a female child found wandering alone in
the playground. While Wood was en route, he learned the child's
name and that she was three years old. He then recalled that on
April 25, 2016, school employees had reported finding the same
child alone in the playground. Another officer had responded to
that call, located the child's mother (the defendant), and
reunited her with the child without incident.
Wood arrived at the school around 10:55 A.M. and was
directed to the nurse's office where he saw the child. She was
wearing a T-shirt and diaper and had bare feet, but was in good
health with no cuts or abrasions. A school employee told Wood
that she found the child in the playground around 10:40 A.M.
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Meanwhile, based on information from the April 25, 2016,
incident, Officer Matthew Donahue was dispatched to an apartment
located approximately .2 miles, or 1,056 feet, from the school.
He arrived there around 10:56 A.M. Though he "rang the doorbell
and pounded on the door repeatedly," he received no response.
After dispatch placed a telephone call to the apartment, the
defendant came to the door around 11 A.M. It appeared to
Donahue that the defendant had "just awoken from sleeping" and
she "was not alarmed, panicked, or crying." She also did not
ask Donahue for help finding the child.
Donahue asked the defendant if she knew where her daughter
was, and she replied, "At the playground?" The defendant
explained that she had set the child down in the living room to
watch cartoons while she went to the upstairs bathroom for
approximately ten to fifteen minutes to attend to "women
problems." When she came back down, the child was gone; the
door to the apartment was open; and the key to the deadbolt had
been inserted from the inside. The defendant said that she
looked for the child for approximately ten minutes and then
"just assumed she was playing with a neighbor[']s child." When
Donahue asked why she did not call 911, the defendant replied,
"That was my mistake."
Donahue drove the defendant to the school and reunited her
with the child. The child's father also arrived at the school,
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and social workers from the Department of Children and Families
interviewed both parents. The defendant confirmed the prior
incident on April 25, 2016, and stated that the child likes to
wander. The child's father stated that after that incident he
installed a deadbolt on the apartment door and instructed family
members to hang the key on a high hook in the kitchen. The
defendant believed, however, that her teenage son may have
instead left the key on the counter where the child could reach
it.
Discussion. A motion to dismiss for lack of probable cause
is evaluated from the four corners of the application for a
complaint. See Commonwealth v. Humberto H., 466 Mass. 562, 565
(2013). The application must set forth sufficient facts to
establish probable cause as to each element of the charged
crime. See id. at 565-566. Probable cause exists where there
is "reasonably trustworthy information sufficient to warrant a
reasonable or prudent person in believing that the defendant has
committed the offense." Id. at 565, quoting Commonwealth v.
Roman, 414 Mass. 642, 643 (1993). This requires "more than mere
suspicion," but "considerably less than proof beyond a
reasonable doubt." Humberto H., supra, quoting Roman, supra.Our review of the order of dismissal is de novo, see Humberto
H., supra at 566, and we take the complaint in the light most
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favorable to the Commonwealth. See Commonwealth v. Leonard, 90
Mass. App. Ct. 187, 190 (2016).
The crime of reckless endangerment of a child requires
proof that the defendant "wantonly or recklessly engage[d] in
conduct that create[d] a substantial risk of serious bodily
injury or sexual abuse to a child [under the age of eighteen] or
wantonly or recklessly fail[ed] to take reasonable steps to
alleviate such risk where there [was] a duty to act." G. L.
c. 265, § 13L. "[W]anton or reckless behavior occurs," for
purposes of § 13L, "when a person is aware of and consciously
disregards a substantial and unjustifiable risk that his acts,
or omissions where there is a duty to act, would result in
serious bodily injury or sexual abuse to a child." Id. See
Commonwealth v. Coggeshall, 473 Mass. 665, 670 (2016) (section
13L evinces "a clearly expressed legislative intent to depart
from the common-law meaning of the words 'wanton or reckless'").
To be substantial and unjustifiable, "[t]he risk must be of such
nature and degree that disregard of the risk constitutes a gross
deviation from the standard of conduct that a reasonable person
would observe in the situation." G. L. c. 265, § 13L. "In
other words, the risk must be a good deal more than a
possibility, and its disregard substantially more than
negligence." Commonwealth v. Hendricks, 452 Mass. 97, 103
(2008). See Coggeshall, 473 Mass. at 668; Leonard, 90 Mass.
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App. Ct. at 194. "The risk also must be considered in
conjunction with a particular degree of harm, namely 'serious
bodily injury,'" Coggeshall, 473 Mass. at 668, defined as an
injury that "results in a permanent disfigurement, protracted
loss or impairment of a bodily function, limb or organ, or
substantial risk of death." G. L. c. 265, § 13L.1
While no reported Massachusetts decision has addressed
whether, and in what circumstances, a caregiver's inadequate
supervision of a child can support a conviction under § 13L,
courts in other jurisdictions have analyzed similar statutes.
As those cases recognize, the inquiry is necessarily fact-
specific, requiring consideration of the totality of the
circumstances. Relevant circumstances may include "the gravity
and character of the possible risks of harm; the degree of
accessibility of the [defendant]; the length of time of the
abandonment; the age and maturity of the children; the
protective measures, if any, taken by the [defendant]; and any
other circumstance that would inform the factfinder on the
question whether the defendant's conduct was [wanton or
reckless]." Barnes v. Commonwealth, 47 Va. App. 105, 113 (Va.
Ct. App. 2005). Accord In re N.K., 169 N.H. 546, 552 (2016);
State v. Maurice M., 303 Conn. 18, 28-29 (2011).
1 The Commonwealth does not contend that the child was at a
substantial risk of sexual abuse.
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Considering the totality of the circumstances here, we
conclude that the complaint established probable cause to
believe that the defendant violated § 13L. Initially, though,
we agree with the motion judge that the defendant's act of
leaving the child in front of the television while the defendant
used the bathroom does not establish probable cause, even though
the child had previously wandered from the home. Without
evidence of other aggravating circumstances, this behavior did
not rise to the level of wanton or reckless conduct creating a
substantial risk of serious bodily injury to the child. See
State v. Greenlee, 2012-Ohio-1432, at ¶ 14 (Ct. App. 2012) (fact
that four year old child disappeared from home while defendant
was in bathroom "is not necessarily indicative of child
endangerment"); Maurice M., 303 Conn. at 29 ("Evidence of the
defendant's wilful failure to supervise his child inside the
home . . . does not, on its own, establish the defendant's
commission of the crime of risk of injury to a child").
According to the complaint, the defendant was inside the home
and remained accessible to the child; she left to use the
bathroom for only a few minutes; and there was no evidence of
any condition in the home that presented a particular risk of
harm. Moreover, though the Commonwealth argues that the
defendant should have known, based on the prior incident, that
the child might go outside, the parents took protective measures
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after that incident by installing a deadbolt on the door.
Contrary to the Commonwealth's contention, the police report
does not "reflect[] that the defendant knew that more than a
deadbolt was required to keep [the child] safe." There is no
indication that the child had previously unlocked the deadbolt
or that the defendant knew that the key was in a place where the
child could reach it. Thus, were we to consider only these
facts, we would agree with the judge that the complaint failed
to establish probable cause that the defendant acted wantonly or
recklessly. Cf. Maurice M., 303 Conn. at 35-36 (State failed to
prove that parent should have foreseen that two year old child,
who was supervised by eight year old child, would wander
outside, where "the child had never left the house before under
these circumstances" and there was no evidence that he "often
misbehaved, was less prone to follow instructions, or otherwise
would have been more at risk for escaping from the home").
We part ways with the judge, however, when considering the
entire course of the defendant's conduct -- in particular, her
conduct once she discovered that the child was missing. After
searching for only ten minutes, the defendant "just assumed"
that the child was playing with a neighbor's child and returned
home. She did not call the police and, it can be inferred from
the police report, had no immediate plans to continue searching
for the child herself. These facts are sufficient to establish
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probable cause that the defendant "wantonly or recklessly
fail[ed] to take reasonable steps to alleviate" a substantial
risk of serious bodily injury to the child. G. L. c. 265,
§ 13L. A reasonable factfinder could rely on common sense to
conclude that a three year old child left unattended outdoors
faces serious risks of harm -- she could have "wandered out
. . . into vehicular traffic, or gotten lost outside, or injured
[herself] in any number of ways that children of such a young
age can." Barnes, 47 Va. App. at 112. Given these dangers
"[i]t cannot seriously be disputed that . . . a parent's duty to
protect [her] young child requires keeping the child from
wandering around outside unsupervised." Greenlee, 2012-Ohio-
1432, ¶ 14. Cf. Barnes, 47 Va. App. at 111-112 (evidence
sufficient to prove that defendant acted recklessly by "leaving
her [two] and [four] year old children alone in an unlocked
apartment while making herself inaccessible for a period of time
long enough to travel to a grocery store, collect and check out
[ten] bags of groceries, and then drive back"); State v. Riggs,
2 S.W.3d 867, 873 (Mo. Ct. App. 1999) (evidence sufficient to
support conviction of child endangerment where defendant left
two year old child outdoors for forty-five minutes, without
proper supervision, and with unfenced pond nearby).
The defendant, for her part, does not quarrel with the
proposition that leaving a young child alone outside could be
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deemed wanton or reckless. Instead, she argues that it is
"impossible to form a reasonable belief that [the child] was at
substantial risk of serious bodily injury" because the complaint
failed to establish precisely how long she was outside before
the school employee found her. The defendant posits that, based
on the average time it would take a kindergartner to walk the
1,056 feet to the playground, the child could have been alone
outside for as little as five minutes -- an insufficient amount
of time, the defendant says, to give rise to a substantial risk
that the child would suffer a serious injury.
The relevant issue, however, is not how much time passed
before the child was found; it is whether there is a substantial
risk that the defendant's "acts, or omissions where there is a
duty to act, would result in serious bodily injury . . . to
[the] child." G. L. c. 265, § 13L. The act or omission here is
not leaving the child unsupervised outside for five minutes.
Rather, the act or omission that gives rise to probable cause is
the defendant's decision to leave a three year old child
unsupervised outside for an indeterminate amount of time,
without calling the police and with no apparent plan to continue
searching on her own any time soon. See Greenlee, 2012-Ohio-
1432, ¶ 14 ("if the child manages to escape the parent's
supervision, whether or not this is the parent's fault, the duty
of protection demands that the parent make an effort to find the
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child as quickly as possible"). That the child was timely and
fortuitously found by a responsible adult does not bear on the
defendant's culpability, at least not without evidence that the
defendant knew that the child had been found and was in a safe
place. See Barnes, 47 Va. App. at 111-112 (evidence sufficient
to prove that defendant acted with "gross indifference to her
children's safety," even though "children exercised the good
sense to walk to a neighbor's apartment"); Riggs, 2 S.W.3d at
873 ("Whether the outcome of [the] incident had been [the
child's] death, [his] rescue . . . or his return home . . . , a
charge of child endangerment could have been filed and the
question would remain the same").
Hannon v. Commonwealth, 68 Va. App. 87 (Va. Ct. App. 2017),
on which the defendant relies, is distinguishable. The court
there held that the Commonwealth failed to prove a substantial
risk of harm where the defendant left her two children in an
unlocked vehicle while she shopped, but intended to return, and
did in fact return, in less than fifteen minutes. Id. at 95.
Assuming, without deciding, that we would reach the same result
on those facts, this case is different because the complaint,
viewed in the light most favorable to the Commonwealth,
establishes that the defendant had no imminent plans to continue
looking for the child. And contrary to the defendant's claim
raised at oral argument, the harm to the child need not have
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actually materialized. "[T]he crime of reckless endangerment
does not require proof of injury, only proof of a substantial
risk of injury." Commonwealth v. Figueroa, 83 Mass. App. Ct.
251, 261 (2013). See Leonard, 90 Mass. App. Ct. at 194.
For these reasons we conclude that the complaint satisfied
the "probable cause requirement, which is not particularly
burdensome." Coggeshall, 473 Mass. at 671. The order
dismissing the complaint is therefore vacated, and the case is
remanded for further proceedings consistent with this opinion.
So ordered.