Neglect of a Dependent

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Indianapolis Criminal Defense Attorney Blog:  A Look at the Law of Neglect of a Dependent
Recently in the news(June 2015) there was a video that went viral involving two “ladies” fighting in the aisle way of a local Wal-Mart.  Disturbingly, one of the ladies had a young son that was present that jumped in and started engaging in the fight.  Shortly after the video went viral, the local prosecutor charged the mom, with the child present, with neglect of a dependent.
Therefore, this week’s blog takes a look at the statute that makes up the basis of the neglect of a dependent charge.  The statue involved reads as follows:
(a) A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally:
(1) places the dependent in a situation that endangers the dependent’s life or health;
(2) abandons or cruelly confines the dependent;
(3) deprives the dependent of necessary support; or
(4) deprives the dependent of education as required by law; commits neglect of a dependent, a Level 6 felony.
(b) However, the offense is:
(1) a Level 5 felony if it is committed under subsection (a)(1), (a)(2), or (a)(3) and:
(A) results in bodily injury; or
(B) is:
(i) committed in a location where a person is violating IC 35-48-4-1 (dealing in cocaine or a narcotic drug) or IC 35-48-4-1.1 (dealing in methamphetamine); or
(ii) the result of a violation of IC 35-48-4-1 (dealing in cocaine or a narcotic drug) or IC 35-48-4-1.1 (dealing in methamphetamine);
(2) a Level 3 felony if it is committed under subsection (a)(1), (a)(2), or (a)(3) and results in serious bodily injury;
(3) a Level 1 felony if it is committed under subsection (a)(1), (a)(2), or (a)(3) by a person at least eighteen (18) years of age and results in the death of a dependent who is less than fourteen (14) years of age; and
(4) a Level 5 felony if it is committed under subsection (a)(2) and consists of cruel confinement or abandonment that:
(A) deprives a dependent of necessary food, water, or sanitary facilities;
(B) consists of confinement in an area not intended for human habitation; or
(C) involves the unlawful use of handcuffs, a rope, a cord, tape, or a similar device to physically restrain a dependent.
(c) It is a defense to a prosecution based on an alleged act under this section that:
(1) the accused person left a dependent child who was, at the time the alleged act occurred, not more than thirty (30) days of age with an emergency medical provider who took custody of the child under IC 31-34-2.5 when:
(A) the prosecution is based solely on the alleged act of leaving the child with the emergency medical services provider; and
(B) the alleged act did not result in bodily injury or serious bodily injury to the child; or
(2) the accused person, in the legitimate practice of the accused person’s religious belief, provided treatment by spiritual means through prayer, in lieu of medical care, to the accused person’s dependent.
(d) Except for property transferred or received:
(1) under a court order made in connection with a proceeding under IC 31-15, IC 31-16, IC 31-17, or IC 31-35 (or IC 31-1-11.5 or IC 31-6-5 before their repeal); or
(2) under section 9(b) IC 35-46-1-9(b) of this chapter;
a person who transfers or receives any property in consideration for the termination of the care, custody, or control of a person’s dependent child commits child selling, a Level 6 felony.
To summarize the law, the first step is to see who a person is that could face such a charge.  Basically, if you willingly accept the responsibility to care for a child or if you are required to care for a child, then you are subject to being charged with neglect if you violate this law.  Parents, babysitters, daycare providers, family members agreeing to watch the children, or any other person that agrees to provide care, are clearly going to be held to the requirements of this law.
However, what constitutes neglect makes it a fairly high bar to reach the level of criminal behavior.  The conduct of the person must place the child’s life or health in danger, or they must abandon or cruelly confine, fail to provide for the basic necessities or fail to provide for the child’s education.
The one thing that is clear from Indiana case law is that fairly bad conduct will not in and of itself always rise to the level of neglect of a dependent.  For example, in one case it was shown that the parent played a hostage game with his kids, including taping their wrists and ankles together, was not neglect.  Additionally, leaving a 7-year-old home alone for over 3 hours was found not to be neglect as the State failed to prove any actual risk of harm to the child.
There have been cases that have established what crosses the threshold of being neglect as well.  In one case a person left their dependent in a vehicle in below freezing temperatures for several hours while sitting in a local tavern drinking beer.  The Court held this conduct did rise to the level of neglect.  In another case, a mother allowed her boyfriend to stay the night despite knowing he had previously raped her 7-year-old.  Again, the Court found this conduct rose to the level of neglect.
Additionally, it has been held neglectful to allow a young child to remain in a tub unsupervised when it was known that the child could turn the faucets himself.  Refusing or delaying necessary medical treatment has also been held to raise to the level of neglect of a dependent.
As can be seen by the situations previously decided by the courts in Indiana, it takes pretty significant conduct to raise to the level of neglect of a dependent.  In Looking at the Wal-mart case, the prosecutor is going to have to show that the mother engaging in a fight in the presence of her child put his health at risk by subjecting him to a possibility of being injured during the fight.  This could be a tough burden for the State if you consider some of the cases discussed that did not raise to the level of neglect.
In order to rise to neglect of a dependent, a court is going to want to see injury or the high probability of injury or a very high degree of neglect such as allowing a child to go without food, failing to provide a clean and safe environment or leaving a child in a dangerous setting.  Obviously, the law does not require ideal parenting.
If you or a loved one are charged with a criminal offense, contact the lawyers at Banks & Brower for a free cases analysis to see how our attorneys can help you.  Simply dial 317-870-0019 or email us at