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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
                                                                     2


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.
                                                                      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 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,
                                                                       4


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
                                                                     5


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.
                                                                     6


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.
                                                                   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 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
                                                                    8


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
                                                                   9


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
                                                                  10


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
                                                                    11


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
                                                                 12


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.
