IC § 35-46-1-4 Neglect of a dependent; child selling

(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), IC 35-48-4-1.1 (dealing in methamphetamine), or IC 35-48-4-1.2 (manufacturing methamphetamine); or

(ii) the result of a violation of IC 35-48-4-1 (dealing in cocaine or a narcotic drug), IC 35-48-4-1.1 (dealing in methamphetamine), or IC 35-48-4-1.2(manufacturing 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 or in the death of a dependent of any age who has a mental or physical disability; 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.

(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:

(A) in a newborn safety device described in IC 31-34-2.5-1(a)(1)(B), IC 31-34-2.5-1(a)(1)(C), or IC 31-34-2.5-1(a)(1)(D); or

(B) with a person who is an emergency medical services provider (as defined in IC 16-41-10-1) who took custody of the child under IC 31-34-2.5;

when the prosecution is based solely on the alleged act of leaving the child in the newborn safety device or with the emergency medical services provider and 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(d) 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.

Case Law

– Δ left her 7 year old child at home alone. She arrived home 3 hours later and the child was gone. She called the police. The child was later found with an uncle. At trial, Δ testified that the child knew not to mess with the stove or open the door or anything. The State charged Δ with Neglect of a Dependent. After being convicted at trial, Δ appealed. The Court of Appeals reversed, finding that the evidence was insufficient to sustain the conviction. “I.C 35-46-1-4 must be read as applying only to situations that expose a dependent to an ‘actual and appreciable’ danger to life or health.” Scruggs at 191. “It seems clear that to be an ‘actual and appreciable’ danger for purposes of the neglect statute when children are concerned, the child must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child. This is consistent with a ‘knowing’ mens rea, which requires subjective awareness of a ‘high probability’ that a dependent has been placed in a dangerous situation, not just any probability.” Scruggs at 191. “[The defendant] may have demonstrated bad judgment, but, again, the State has not proved beyond a reasonable doubt that [the defendant] had a subjective awareness of a high probability that she placed [the child] in a dangerous situation.” Scruggs at 191. “Negligence in the State of Indiana is not a criminal act.” Scruggs at 191. The State “has failed to prove the mens rea element of the crime.” Scruggs at 192. Scruggs v. State, 883 N.E.2d 189 (Ind. App. 2008).

– Two co-Δs were taking care of several children. The co-Δ’s played a game with the children called hostage, in which the children’s wrists and ankles were taped together. One Δ taped a child into her stroller by wrapping tape around the child’s shoulders and waist. The other Δ later removed the tape with a pocket knife and accidentally cut the child. The child’s father later saw the scratch, and expressed his disapproval of the hostage game. On a different occasion, the children again played the game and hopped around the house. One child was not able to free herself and had to be cut loose with scissors. When the father of the child noticed tyape residue on the child’s hands, he took the child to a doctor, which resulted in a child abuse investigation. Both Δs were arrested and charged with Neglect of a Dependent. The Court of Appeals reversed, finding that the evidence was insufficient. “[T]he accused must have been subjectively aware of a high probability that he placed the dependent in a dangerous situation.” Gross at 308. “[T]he statute must be read as applying only to situations that expose a dependent to an actual and appreciable danger to life or health.” Gross at 309. “It seems clear that to be an ‘actual and appreciable’ danger for purposes of the neglect statute when children are concerned, the child must be exposed to some risk of physical or mental harm that goes substantially beyond the normal risk of bumps, bruises, or even worse that accompany the activities of the average child. This is consistent with a knowing mens rea, which requires subjective awareness of a high probability that a dependent has been placed in a dangerous situation, not just any probability.” Gross at 309. “Although the so-called hostage game strikes us as somewhat bizarre and not something many child development experts would condone, we conclude there is insufficient evidence that playing the game exposed [the children] to a substantial, actual, and appreciable risk of mental or physical harm. Furthermore . . . there is insufficient evidence that Gross and Hartman were subjectively aware of a high probability that [the children] were endangered.” Gross at 310. Gross v. State, 817 N.E.2d 306 (Ind. App. 2004)

– Δ whipped a child as punishment for urinating on a couch. Bruised were found on the child’s forehead, buttocks, and abdomen. The child’s mother took the child to the hospital. A doctor notified police. Δ was charged with, among other things, Neglect of a Dependent. After being convicted at trial, Δ appealed. The Court of Appeals reversed, finding that the evidence was insufficient. “[T]he State had the burden of proving [the child’s] health was placed in actual, appreciable danger by [the defendant’s] failure to obtain medical treatment for her. Considering the evidence previously recited, it is startlingly apparent the evidence fails to reasonably support the inference Dayton’s omission endangered S.W.’s health. There is no evidence the bruises placed S.W. in a condition which required medical attention without which her health was endangered. Therefore, Dayton’s conviction for neglect of a dependent must be reversed. That leaves his conviction for battery for our consideration.” Dayton at 484. Dayton v. State, 501 N.E.2d 482 (Ind. App. 1986).

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