Commonwealth v. Santos
Commonwealth v. Santos
Opinion
*43 *558 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 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 *559 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.
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 *44 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, and *560 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
.,
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."
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
,
We part ways with the judge, however, when considering the entire course of the defendant's conduct -- in particular,
*46
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 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
,
The defendant, for her part, does not quarrel with the proposition that leaving a young child alone outside could be 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
,
Hannon
v.
Commonwealth
,
For these reasons we conclude that the complaint satisfied the "probable cause requirement, which is not particularly burdensome."
Coggeshall
,
So ordered .
The Commonwealth does not contend that the child was at a substantial risk of sexual abuse.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.