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- 1030; SJCReporter @ sjc.state.ma.us 18

- P

- 100 Appeals Court

COMMON WEALTH 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
.

C omplaint received and sworn to in the Lynn Division of the District Court Department on May 25, 2016. A motion to dismiss was heard by Cath leen E. Campbell , J.

Catherine P atrick 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 bel ieve that she committed the crime of reck less end angerment of a child . See G. L. c. 265, § 13L . Finding a lack of probable
cause, a District Court judge allowed the defendant's motion to2

dismiss the complaint, and the Commonwealth appeal s. W e agree with the judge that the defendant's act of leaving the child alone in front of the television for ten to fifteen minutes d oes not establish probable cause that she acted recklessly
. But we conclude t hat , once the defendant realized that the child had wandered from the home, she had a duty to search for her , and evidence that she stopp ed 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 e lementary s chool 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, s chool 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 incid ent . 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 .3

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 place d a telephone call to the apartment, t he defendant came to the door around 11 A . M . I t appeared to Donahue t hat 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?" T he defendant explained that she had set the child down in the living room to watch cartoons while she went to the upstairs bat hroom 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 s ai d 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,4

and social worker s from the Department of Children and Families interviewed both parents . Th e defendant confirmed the prior incident on April 25, 2016, and s tate d 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 h er teenage son may have instead left the key on the counter where the child could r each it
. Discussion . A motion to dismiss for lack of probable cause is evaluate d 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 commit ted 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 tak e the complaint in the light most5

favorable to the Commonwealth. See Commonwealth v. Leonard , 90
Mas s. 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 omissi ons 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 fro m 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. Hendri cks , 452 Mass. 97, 103 (2008)
. See Coggeshall , 473 Mass. at 668; Leonard , 90 Mass.6

App. Ct. at 194. "T he risk also must be considered in conjunction with a particular degree of harm, namely 'serious bo dily 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 n o 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 considera tion 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 chil dren; the protective measures, if any, taken by the [defendant] ; and any other circumstance that would inform the factfinder on the question wheth er the defendant's conduct was [wanton or reckless]
. " Barnes v. Commonwealth , 47 Va. App. 105, 11 3 (Va.
Ct. A pp. 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.7

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 t he 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 ris e to the level of wanton or reckless conduct creating a substantial r isk of serious bodily injury to the child
. See
State v. Greenlee , 20 12

- 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, t he defendant was inside the home and remained accessible t o 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, t h ough the Commonwealth argues that the defendant should have known, based on the prior incident , that the child might go outside , the parents took protective measures8

after that incident by installing a deadbolt on the door. Contrary to the Commonwealth's contention, t he police report does not "refl ect [] 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 unlock ed the deadbolt or that the defend ant knew that the key was in a place where the child cou ld reach it
. Thus, were we to consider only t hese 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 ( S tate failed to
prove that p arent should have foreseen th at 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 particu lar, 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. T h ese facts are sufficient to establish9

probable cause that the defendant " wantonly or recklessly fail[ e d] 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 co mmon sense to conclude that a three year old child left unattended outdoors faces serious risks of harm

-- she could have "wandered out

. . . i nto ve hicular 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
p rotect [her] young child requires keeping the child from wandering around outside unsupervised. " Greenlee , 2 012

- 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 ol d 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 out doors for forty

- five minutes , without proper supervision, and with unfenced pond nearby)
. Th e defendant , for her part , does not quarrel with the proposition that leaving a young child alone out side could be10

deemed wanto n or reckless . Instead, she argues that it is "impossible to form a reasonable belief that [ the child ] was at substantia l risk of serious bodily injury " because the complaint failed to establish precisely how long she was out side 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 omissio ns 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 am ount of time, without calling the police and with no apparent plan to continu e search ing 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 the11

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 co uld 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 shopp ed , 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 imm inent plans to continue looking f or the child
. And c ontrary to the defendant's claim raised at oral argument, the harm to the child need not have12

actually materia lized
. "[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 Mas s. at 671. The order dismissing the complaint is therefore vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered
.