Child Neglect

Convictions for Child Neglect or Failure to Provide Care Explained

It is a generally understood maxim that people can raise their children in the way they choose. For example, parents can choose to raise their children devoutly Catholic, secular, Buddhist, Hindi, atheist or some combination of all. However, there are limits on what you can and can’t do to or with your children. One that is commonly overlooked by many parents (and is frequently employed against parents with limited economic means) is Penal Code § 270 or “Child Neglect.”

Child neglect conjures up images of absent parents, children thrown out onto the street, children left in cars, or denied food. However, the definition of child neglect is far more nuanced and relies heavily on the discretion of the police and prosecutor.

Who Is A Parent?

Penal Code § 270 adopts an expansive definition of “parent.” It includes biological parents who have parental rights; adoptive parents; and others who hold themselves out as parents (so stepparents, foster parents, etc.).

Moreover, it expressly includes husbands who wives’ give birth to any child while the husband is living with her (meaning, “parent” is assumed for any husband regardless if there was a DNA test). However, it excludes husbands who are medically sterile and did not live with their wife. The law expressly includes fathers of children who are born as a result of artificial insemination and consented to the procedure in writing.

Comparison with Child Abuse and Endangerment

You may notice that these elements are strikingly similar to Child Abuse and Child Endangerment and you would be right. However, the primary difference between these two charges and Child Neglect is that the parent does not have to reside with or have regular contact with the child. Under Section 270, a parent can be charged without ever having known they had a child or who were actively prevented from participating in the child’s life.

For example, a mother gives birth to a child and the father pays child support but is not active in the child’s life. The father never misses a child support payment. A subsequent investigation finds the mother has been neglecting the child, failing to provide shelter, food, and medical supplies – a classic violation of Section 270. Mother faces a possible conviction but so does Father, even though he consistently paid child support. Father’s parental rights were never terminated, and he is not lawfully excused by paying child support, he still has legal obligations to ensure the child is receiving adequate care.

What Are The Penalties For Child Neglect?

Violating Section 270 is a misdemeanor offense which can be punished by:

• A fine not to exceed $2,000; and/or
• Incarceration in county jail not to exceed one year.

Section 270 is a “wobbler.” A “wobbler” is a crime that can be charged as a felony or misdemeanor, depending on the circumstances of the case. In some cases, Section 270 can be charged as a felony if the parent is found to have neglected the child after receiving a court determination that they are the parent. For example, a father is found to be the father of a child after a paternity suit but continues to refuse to provide care and support for the child could be convicted under Section 270 as a felony.

If the parent is charged as a felony, they face:

• A fine not to exceed $2,000; and either
• Incarceration in county jail not to exceed one year; or
• Incarceration in state prison not to exceed two years.

In certain situations, the court will grant the defendant probation rather than incarceration. If you are granted probation, you usually avoid most (if not all) jail or prison time but you are required to comply with the terms of probation. For child neglect that could include counseling, parenting classes, and checking in with the court to update them on progress.

If the parent violates the terms of probation, the court can schedule a probation violation hearing and revoke probation – sending the parent to jail.

What Are the Defenses to Child Neglect?

There are several defenses you can raise to a charge of violating Penal Code § 270. For example: you could argue that you were falsely accused and in fact have been providing the child with necessities. You could buttress your defense by including proof of said support, such as receipts for purchases of necessities, pictures, and testimony.

You could also argue that you are not the child’s legal parent. For example, if your rights were terminated pursuant to a court determination or if you are contesting paternity of the child.

Another typical example is whether you “willfully” failed to provide physical necessities. The law isn’t supposed to punish individuals who do not know they are parents or who believed they were providing necessities.

A lawful excuse to child neglect is that the parent, through no fault of their own, is unable to provide the child with all physical necessities. For example, if a parent lost their job and has been looking but is unable to find replacement employment that pays sufficiently to provide the child with all necessities. The law isn’t supposed to punish parents for struggling financially.

Child neglect also comes up frequently when it comes to medical assistance. Parents are required to provide their child with all medical care they require (i.e. medication, doctor visits, etc.). However, if the parent was unaware that their child needed specific medical care, for example, believing a child has the common cold; rather than a severe strain of the flu. Another defense is if the parent provides the child with a lawful alternative to medical care, such as prayer or some other religious alternative method of healing. However, if the child dies or is seriously ill, the parent might still face a conviction for child neglect.

How Does the Prosecutor Prove Willful Conduct?

It is best to illustrate through examples.

1. For example: Dan and Patricia have a child out of wedlock. Dan contests that the child Patricia gives birth to is not his. Patricia initiates a paternity action to confirm if Dan is the father. Dan submits to court examination and a DNA test reveals he is the biological parent. The court orders Dan to begin sending child support payments and determines that he has parental duties and rights to the child. Dan, despite the court order, refuses to provide child support or any necessities for the child. Patricia earns a low-income and is unable to give the child all physical necessities without Dan’s support; which he refuses to provide.

   Dan is guilty of violating Section 270 because he knows that he is the parent of the child through both the court determination and the DNA test results. Moreover, Patricia is likely not guilty because, through no fault of her own, she is unable to provide the child with all physical necessities. Finally, Dan could be charged with a felony because he failed to provide for the child after a court order instructed him to do so.

2. For example: Ben and Phyllis are married and have a child. Ben and Phyllis’ relationship is complicated, and he leaves Phyllis and the child without warning. Ben does not provide support and ignores Phyllis’ requests for assistance. Phyllis never explicitly tells Ben that she is unable to care for the child.

   Ben is guilty of violating Section 270. While Ben was not aware Phyllis could not provide for the child he nevertheless abandoned the child and ceased support. Therefore, Ben was unknowing of the exact nature of the child’s necessities but he was aware that he wasn’t paying anything towards the child’s care.

What Are Physical Necessities?

The law defines physical necessities to include:

• Food;
• Clothing;
• Shelter; and
• Medical or other “remedial” care.

Essentially, the law requires parents to provide essential services and support to ensure the child is healthy, fed, and safe.

Food, clothing, shelter, and medical are self-explanatory. The law does not require that parents provide certain types of food, clothing, shelter, and medical care – only that which is appropriate for the given situation.

For example, if the child lives in a cold climate; the parent should strive to provide the child with coat and warm clothes. If the child has diabetes, the parent should strive to ensure the child has access to insulin and other medical care to manage the condition.

What Is “Remedial” Care?

What isn’t clear is what is “remedial” care. As briefly touched on above, remedial care refers to alternative methods of healing. For example, spiritual healing or alternative medicine therefore, parents who do not believe in modern medicine can use faith-based healers.

However, the healer must be from a recognized church or denomination, i.e. it can’t be from a small religious group or cult – the healer needs to be from a large, organized, and recognized denomination or church. However, if the child is seriously ill or dies – you could face charges for endangerment, neglect, abuse, or even manslaughter.

How Does the Prosecutor Prove You Had No “Lawful Excuse?”

Lawful excuse refers to the child not receiving care through no fault of the parent.

For example, John and Mary have a child. Mary is unable to work due to a medical condition. Tom looks for a second job but is unable to earn enough to support the family and they are evicted from their apartment. John, Mary, and child live in a tent. John continues to work; the family receives food stamps but there is often insufficient food and child goes hungry some nights. A teacher at child’s school notifies the police. John and Mary are arrested and charged with violating Section 270.

However, once Mary proves that she is unable to work due to her medical condition and that John is working, he just isn’t earning enough despite his efforts; the prosecutor will drop the charges because Mary and John have a lawful excuse.

Conversely, if the prosecutor proves that either parent:

1. Spent money willfully on unnecessary expenses, like tickets to see a Def Leppard cover band; or
2. The parent did not diligently look for work,

Then the prosecutor may argue that the parent had no lawful excuse. Section 270 requires parents to make their children their priority, therefore, the parent must sacrifice their own comforts and physical necessities in order to provide for their children.

Moreover, the parent is still guilty even if the child is cared for by (1) an organization (2) another person or (3) the other parent.

For example, Molly is a single parent. She works but often does not earn enough to buy food. Moreover, Molly is unable to purchase her child warm clothes in the winter or to provide her with lunches at school. Molly spends her money on jewelry and concert tickets, rather than on her child’s physical needs.

Irene, one of child’s teachers, feels terrible for child and purchases her lunch now and then. Moreover, Molly and child often receive food assistance from a local food bank. Child does not go hungry because she is supported by Irene and the local food bank, however, Molly is still guilty of child neglect because she chose to spend her money on other expenses – rather than on the physical necessities of her child.

Constitutional Limitations

The Constitution provides minimum rights to parents which grants them the duty and right to raise their child as they want. Moreover, a California court has ruled that a Section 270 felony conviction for a first-time offender violate the Equal Protection Clause. The court reasoned that too harsh sentences would deter fathers from trying to establish paternity.

Related Offenses

Often prosecutors will charge multiple crimes for substantially similar conduct. Constitutionally, the prosecutor is required to identify different factual “elements” for each crime (so the prosecutor can’t double or triple-up charges on a single event). However, the nature of these elements and the nature of child neglect often means that multiple instances of neglect occur which empowers the prosecutor to charge multiple crimes for a series of similar events.