Heard: October 11, 2018.
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
Crane for the defendant.
Present: Henry, Shin, & Singh, JJ.
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.
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.
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
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.
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
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.