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Commonwealth v. Santos

Appeals Court of Massachusetts, Essex

December 12, 2018

COMMONWEALTH
v.
ELIUZA A. SANTOS.

          Heard: October 11, 2018.

         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.

          Present: Henry, Shin, & Singh, JJ.

          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 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.

         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, 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.

         D ...


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