Child endangerment can include acts that are unintentional but harm or leave children exposed to the danger of physical injury. In other words, the conduct may be passive and not have directly caused the injury or suffering but you may still be charged and convicted.
To be charged or convicted of child endangerment, you need not have physically injured the child or caused a sequence of events that led to an injury. You only have had to engage in an act that could have caused serious injury to a child.
Like any other criminal offense, there are certain elements to the crime. If you engaged in any of the following acts, you could be convicted of child endangerment under Penal Code 273a:
- You willfully inflicted unjustifiable physical pain or mental suffering on a child1
- You willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering2
- You caused or permitted a child in your care or custody to be injured
- You caused or permitted a child in your care or custody to be placed in a dangerous situation
- You acted in a way that was likely or reasonably likely to inflict great bodily injury or death upon a child
Child endangerment is a wobbler which means that you may be charged with either a misdemeanor or a felony under California law. If your conduct was such that a child was left in a condition or situation that was likely to cause great bodily harm or death3, then you can be charged with a felony or a misdemeanor in the discretion of the prosecutor. If “great bodily harm or death” in the context of having been inflicted or that the child was exposed to the risk of it is not proven or demonstrated, then the offense is a misdemeanor.
A prosecutor has to prove each element of a criminal offense.
One of the elements of child endangerment is that the defendant willfully engaged in one of the acts cited above.
Willful means intentional or purposeful but does not imply that you specifically intended to harm the child4. A classic case is leaving a child in the care of someone whom you had cause to suspect or believe would harm the child and an injury was inflicted. It is the act of intentionally or willfully allowing the child to be cared for by a violent person who likely injured the child on a prior occasion that is the criminal act.
A prosecutor can prove willfulness in this case by showing from medical records or testimony from physicians or witnesses that the child had suffered bruises and injuries in the past while left with the person who caused the injuries for which the defendant is charged. A defendant may also have made comments to others that she feared leaving the child with this person but did so anyway.
Unjustifiable is unnecessary or excessive pain or suffering. If a child is left in a closet for hours without food or water or tied to a bed for days, this is considered unjustifiable physical pain or mental suffering regardless if the intent was to punish the child.5
Every summer it seems that a parent is charged with having left a child locked in a car seat while the parent gets drunk in a bar or inexplicably forgets the child. The weather outside is 100 degrees but well above that in the vehicle.
While you did not injure the child, you knew the weather was excessively warm and that leaving the child in a locked car would lead to a dangerous condition that could cause great bodily harm or death.
Another example is not obtaining medical care for a child who is obviously very ill or injured.
Negligence means that a individual has a duty to exercise reasonable care toward someone. If you act recklessly or in a manner that is a gross departure from how a reasonable person would act under similar circumstances, then you may have acted with criminal negligence.
Driving while intoxicated with a child who is under the age of 14 as a passenger is reckless conduct and you can be charged with a child endangerment enhancement pursuant to Vehicle Code 23572 VC. You are especially vulnerable if your blood alcohol level is elevated, or over 0.15%, which is more than twice the legal limit. You also face the additional charge of child endangerment under PC 273a.
An elevated BAC along with your driving pattern is strong evidence that you were engaged in conduct reasonably likely to inflict great bodily injury or death upon the child because of the high incidence of serious injury or death by intoxicated drivers.
There is also no religious exemption for criminal negligence. In the past, parents who were Jehovah’s Witnesses and opted to pray for their child who was seriously ill rather than take the child to be treated with standard medical treatment that would have saved the child’s life is not conduct that a reasonable person would have engaged in.
Another example of criminal negligence resulting in child endangerment is dealing or trafficking in controlled substances and having quantities of cocaine, heroin or opioids in the home shared by a child who has easy access to the drugs.
It can sometimes be difficult for prosecutors to prove either that child endangerment occurred or that the defendant committed it. To prove the charge, prosecutors will look to certain evidence.
To prove child endangerment, prosecutors will examine the child’s medical records to see if the child had a medical history of bruises or injuries that appear suspicious or if the child had a preexisting condition. Records can indicate that a parent or caregiver gave unlikely explanations for the injuries or that the adult seemed unconcerned. Welts, burns and bruises especially in intimate areas can be indications of abuse.
Often, the record will show that authorities were summoned but that there was no action taken because of insufficient evidence but that the defendant or someone else was suspected.
Of course, the physical condition of the child is an essential piece of evidence. An expert can testify that certain injuries either could not have been caused in the manner alleged by the defendant or that it was highly unlikely. For example, the expert could explain that internal or other injuries could not have been caused by falling down but by a blunt force instrument or by being thrown about.
Also, a child who is severely malnourished or seriously ill and has not received any medical care is prime evidence of neglect that can constitute child endangerment.
The best evidence is either a confession by the defendant that force was used on the child or that he or she was only disciplining the child that was obviously excessive. Defendants often comment to others that a spouse or partner has been abusing the child but that the child was still allowed to be in that person’s care, which is causing or permitting the child to be placed in a dangerous situation.
Other evidence is the condition of the home. If the residence shows toilets that are not running, there is little or no food in the refrigerator, the child sleeps on a dirty mattress in a non-heated home and lacks clean clothing that is torn, then the defendant parent or caretaker could be charged with criminal negligence. When police of child protective services investigates, there is sometimes evidence of controlled substances in the home that is further evidence of child endangerment.
There are a number of defenses available to a defendant charged with child endangerment.
If you did not intend to harm the child or the child was injured because of an accident, then you may have a defense. If an accident, you must not have caused a chain of events that led to the injury such as leaving a loaded gun in an open and easily accessible location.
If your child was injured on a playground because you were talking to another parent, you did not willfully cause or permit your child to suffer unjustifiable harm.
Parents have the right to discipline their children in a reasonable manner7. Using a whip or belt and leaving excessive bruising or bleeding is probably unreasonable. Use of your hand alone is probably not considered excessive, The prosecution will consider the age and size of the child, the injuries that occurred and the amount of the punishment.
In many custody battles or situations where parents intensely dislike one another, there are accusations of abuse or child endangerment. In some cases, a parent may convince a young child to accuse the other parent of abuse.
Caretakers may accuse the parents of abuse in an attempt to cover up their own conduct. Or, a child who is angry at a parent or caretaker may embellish or fabricate allegations without appreciating the seriousness of the accusation.
Compounding the incidence of false accusations is that certain persons are required to report suspected child abuse to authorities. Medical care providers, teachers, administrators, coaches, clergy and social workers face criminal penalties if they fail to report suspected cases. If a child was injured in an accident or there are suspicious bruises in the genital area or other intimate parts that were either self-inflicted or caused by someone else, the parent could still be charged.
Serious bodily harm usually refers to injuries such as broken limbs, internal injuries or other injuries requiring medical attention although there is no requirement that a person received medical care for the injury to be considered serious bodily harm. It also encompasses permanent disfigurement, extreme physical pain and loss of or impairment of a bodily function. Serious cuts, injuries requiring extensive stitches, a concussion, paralysis and spinal injuries are also considered serious bodily injuries.
You do not have to have actually inflicted serious bodily harm so long as you placed the child at risk of that occurring.
However, it is a question of fact for a jury or finder-of-fact to determine if the injury constituted serious bodily harm. An injury that heals quickly without any residuals may be considered as non-serious for purposes of the statute.
Child endangerment can be a felony8 or misdemeanor depending on whether the child suffered or was exposed to a risk of great bodily harm or death. Below are the penalties for both misdemeanor and felony convictions.
|Fine||Up to $1,000||Up to $10,000|
|Probation||Min 4 years summary probation||Min of 4 years formal probation|
|Jail or Prison||Up to 6 months county jail||2, 4, or 6 years state prison|
- A protective order whereby you are prohibited from any contact with the child or to stay away from the child’s residence9
- Attending and completing a child abuser counseling program that is at least one-year in duration
- Refraining from alcohol or drugs if you were using either at the time of the abuse
- Being subject to random drug testing
How old can a child be when left at home?
California law does not specify at what age a child can be left home alone. It will depend on a number of factors that include these as well as others:
- How responsible is the child
- Does the child know to call 911 in an emergency or other adults
- Is the child capable of calling you on a phone
- Does the child know what to do in case of a fire
- Is the child mature enough to be left alone
- Can the child handle simple first aid procedures
- Does the child know not to allow unknown persons into the home
If the child is injured at home and no adults were present for several hours and the child is relatively young, then the maturity of the child will be an issue.
Is child endangerment a strike?
Child endangerment is a strike under California’s three strikes law only if the child actually suffered great bodily injury. If the child was only placed in a situation or condition that exposed him or her to great bodily harm or death, it is not a strike though it is a felony.
If the child’s injury was an accident, will I be charged?
If the child’s injury was accidental, then you will not necessarily be charged but it depends on whether you placed the child in a situation where he or she was reasonably likely to suffer harm. For instance, if you left a 5-year old child alone for 8 hours and the child fell down the stairs and broke a leg during that time, you will likely be charged with child endangerment even if the fall was an accident since the child was too young to be unsupervised for that long.
Is the Department of Child and Family Services contacted?
Anyone who has a reasonable suspicion that a child is in danger is encouraged to call DCFS that provides a hot line, but certain persons such as teachers, social workers, physicians, nurses, coaches and school administrators have a legal obligation to call the DCFS or law enforcement. If law enforcement is called, the DCFS will get involved to ensure the child’s welfare is safeguarded while law enforcement focuses on gathering evidence.
The DCFS will have a social workers assigned to the case who can offer counseling, assistance in obtaining medical care or shelter.
Will the child be taken away by DCFS if I am convicted?
It is likely that if you are convicted of child endangerment then the court may strip you of parental rights or at least prohibit you from contact with the child until you have at least completed probation, which is a minimum of 4 years. The court uses the “best interests of the child” as the standard in whatever actions it takes regarding your parental rights.
If you have been arrested and would like to learn more about what attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you are ready to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
- People v. Smith (1984) 35 Cal. 3d 798,806 [↩]
- People v. Cortes (1999) 71 Cal.App.4th 62,80 [↩]
- People v. Burroughs (1984) 35 Cal.3d 824,831 [↩]
- People v. Lara (1996) 44 Cal.App.4th 102.107 [↩]
- People v. Jaramillo (1979) 98 Cal.App.3d 830 [↩]
- People v. Valdez (2002) 27 Cal.4th 778 [↩]
- People v. Whitehurst (1992) 9 Cal.App.4th 1045 [↩]
- Penal Code 273.5(a) – Any person who willfully inflicts corporal injury resulting in a traumatic condition upon a victim described in subdivision (b) is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000), or by both that fine and imprisonment. [↩]
- Penal Code 273.5(j) – Upon conviction under subdivision (a), the sentencing court shall also consider issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any restraining order be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim and his or her immediate family. This protective order may be issued by the court whether the defendant is sentenced to state prison or county jail, or if imposition of sentence is suspended and the defendant is placed on probation. [↩]