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AWARD WINNING CRIMINAL DEFENSE LAWYERS

Failure to Provide Care

California law has identified a number of classes of individuals they deem deserving of special protections, “protected persons.” Specific examples of these classes of individuals include: (1) public officialsi, (2) peace officersii, (3) the elderlyiii, (4) intimate partnersiv; and (5) childrenv. Continuing the statutory scheme of protecting children from harm as the result of actions or inactions on the part of their legal guardian, Failure to Provide Care creates a crime that is similar to negligence as it relates to the failure of a legal guardian to satisfy their duty of care to their child.

As mentioned below, California makes it a punishable offense for the legal guardian of a child to expose the child to endangerment, neglect, or abuse. As it relates to Failure to Provide Care, California Penal Code §270 makes it a punishable offense to harm a child, or place a child in a dangerous situation. A key component of Failure to Provide Care charge is that the Defendant is the parent of the Victim, or owes some parent-like duty to the child. There are many scenarios where an individual may face criminal charges for failure to provide care. The list below is a non-exhaustive list of actions that may result in a conviction for failure to provide care:

  • Dan and his son are living in Los Angeles during an extremely rainy winter. Dan let his son play in the rain for several hours without a rain coat, extra layers, or rain boots. Ultimately, Dan’s son gets pneumonia. Dan could be charged with failure to provide care.
  • Dan frequently forgets to feed his child breakfast and dinner, and when he does it is typically snack food with absolutely no nutritional value. Dan’s son ultimately becomes anemic. Dan may be convicted of failure to provide care.
  • After Dan’s son has gotten pneumonia, Dan does not take his son to the doctor, and the child becomes even sicker. Dan may be convicted of Failure to Provide Care.

In order to obtain a conviction for failure to provide care, the Prosecution must prove the following elements to a jury beyond a reasonable doubt:

  1. The Defendant was the parent of the Victim;
  2. The Victim was a child at the time the crime was committed;
  3. The Defendant neglected the Victim by failing to take necessary actions or provide necessary items; AND
  4. The Defendant acted willfully without a legal justification

Who is the “Parent” of a Child?

To be found guilty of Failure to Provide care, the District Attorney must prove that the Defendant was the “parent” of the Victim beyond a reasonable doubt. Since the definition of a “parent” is a technical definition, the District Attorney generally does not have a difficult time proving that the Defendant was the parent of the Victim. Further, a parent’s duty to their child begins before the child is actually born. Extrapolating on that point, a parent can face criminal charges for failure to provide care simply because they did not satisfy their duty to their unborn child by failing to obtain proper prenatal care.

Additionally, the label of “parent” attaches to the Defendant regardless of whether or not they have custody of the Victim. You are considered to be the parent of a child even if you never married the mother and spend no time with the child, or if you are divorced but weren’t granted custody. If you fail to care for your child, when you had a duty to do so, you will face charges of failure to provide care.

In an era where assisted reproduction is a reality, the law has evolved to include that method of reproduction. If a woman becomes pregnant through sperm, which was donated by another person, with the permission of the other person, the unborn child is deemed to be a child of both the female, and the non-donating male for purposes of a failure to provide care charge. This is true notwithstanding the fact that the male and the child share no common DNA.

Minor Child

The next element the District Attorney must prove in addition to the fact that the Victim was the Defendant’s child, is that at the time of the crime, the Victim was a minor. In California, the age of majority is eighteen (18) years old, anyone younger than 18 is considered a minor. The law makes it clear that a person is deemed to be 18 at 12:00AM on the day of their 18th birthday. Thus, in theory, a person could be convicted of failure to provide care if the act occurred at 11:59PM the day before the child’s 18th birthday.

Failed to provide necessities

The next element that the District Attorney must prove is that the Defendant failed to take proper actions to keep their child safe, or that the parent failed to provide their child with necessities. Necessities include all things required for a child to survive. The Courts have specifically identified medical/remedial care, clothing, food, and shelter as necessities for children.

The parent owes a duty to their child to provide assistance to their child, provided the assistance is objectively reasonable. A parent is excused from this duty in certain situations such as the fact that the parent does earn enough income to provide all the necessities to their child. However, this is not the case if the reason the parent does not have enough money is through their own conduct.

Both the Constitution of California and the United States provide every person the right to practice their own religion. As a result, an individual will not be convicted of failure to provide care if they utilize “treatment through prayer”, as long as that is what their religion actually requires; further the religion must be a recognized religion. If the parent seeks treatment through a religious mechanism, the individual performing the treatment must be properly licensed. Thus, a person who opts to forego traditional medicine and instead chooses religious treatment, they cannot be found guilty of Failure to Provide Care. It should be noted that if the child dies as a result of the parent’s failure to seek medical treatment, they may face charges of manslaughter or child endangerment.

willful and without excuse

There are two types of criminal intent required for nearly every criminal act; general or specific. General intent means that the Defendant intended to do the act that gave rise to the crime. Specific intent means the Defendant intended the outcome of their act, or acted for a specific reason. Almost all forms of battery are general intent crimes, which means that to satisfy the intent element of the crime, the Defendant only had to intend to do the action that resulted in the touching. It does not matter if the Defendant had no ill-will, or only meant to frighten the Victim The legal community has been engaged in a discussion as to whether this definition is sufficient, it has been suggested that the correct definition of willfully is a person acts “willfully” when they engage in conduct on purpose, they are aware of what they are doing, and they intend to engage in that actvi. For practical purposes, absent extenuating circumstances, this element is fairly easy for the Prosecution to prove; many of the defenses your LACL attorney can raise will be aimed at negating the possibility that the Defendant was acting willfully.

As noted in the preceding section, it is a valid defense to a Failure to Provide Care charge to note that the Defendant simply does not have enough income to provide necessities to their child. This excuse will be sufficient provided the Defendant isn’t the cause of their lack of finances.

Example:

Dan is a lifelong alcoholic with a son who is two years old. Dan feeds his child once a day, and the child becomes anemic. At trial, Dan raises the defense that his failure to provide necessities is a result of the fact that he has no money. The Prosecution introduces Dan’s debit card statement, which shows that Dan spends $30 a day at the local liquor store. Dan will be found guilty of child endangerment.

I Have Been Convicted of Failure to Provide Care, What Penalties May I face?

The crime of Failure to Provide Care, as long as it is a first offense, is always charged as a misdemeanor in California.

If you are convicted of misdemeanor failure to provide care, you will face incarceration in county jail for up to one (1) year and/or a fine of up to two-thousand ($2,000) dollars.

If you are charged a second time, the District Attorney can choose to bring the charge as a felony or a misdemeanor.

I Have Been Accused of Failure to Provide Care, How Can Los Angeles Criminal Lawyer Assist Me?

As mentioned in the preceding section, a first offense failure to provide care charge is always brought as a misdemeanor. If you are subsequently charged with a §270 violation, the charge can be brought as a misdemeanor or a felony. This determination is made by the District Attorney, and is based on the facts surrounding your case.

Ultimately a conviction will appear on your criminal record for a long time and may serve as the basis for enhanced penalties if you are subsequently convicted of another crime. This may affect your future job prospects. Employers frequently conduct background searches to weed out candidates for positions with their company. Employers are hesitant to hire individuals with a felony or a misdemeanor on the criminal record. Further, the crime of child endangerment carries a social stigma with it that may further convince the employer to abstain from hiring you.

Having competent counsel representing you will provide you the best opportunity to obtain a favorable outcome to your case. At your trial, your LACL attorney will raise the following defenses:

  • The Defendant did not act willfully
  • The reason the Defendant was unable to provide necessities was a lack of funds
  • The Defendant was falsely accused
  • The Defendant did provide necessities for their child
  • The Defendant is not the “parent” of the child
  • The Victim was over 18 at the time of the alleged crime

If you or a loved one has been accused of failure to provide care, contact Los Angeles Criminal Lawyer at 310-502-1314 for FREE consultation.


i See Assault on a Public Official

ii See Battery on a Peace officer

iii See Elder Abuse

iv See Domestic Battery and Corporal Injury

v See Child Abuse and Child Endangerment

vi California Crim. Jury Instr. Companion Handbook § 5:1, California Crim. Jury Instr. Companion Handbook § 5:1

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