Failure to Provide Care

Five groups of individuals are recognized by California law as those deserving special care and protection. Such people are commonly dubbed “protected persons”. They include the elderly, public officials, intimate partners, peace officers, and children. This article will specifically review the failure to provide care to children which according to California law, is among the severely punished offenses.

Typically, parents are the primary source of protection to their children; but sometimes, they can face criminal charges as well. If you are facing these charges and you are in Los Angeles CA, seeking legal assistance from LA Criminal Defense Attorney will help you explain the reasons behind your alleged negligence and defend you against unfair charges related to child neglect.

How does California Law Define Failure to Protect a Child?

Neglect and abandonment of child protection are outlined by the California law under Penal Code 270. You are viewed as a parent to have violated or breached the law if you willfully omit the provision of the basic necessities to your child or minor, unless if you have a legal excuse. Willful omission implies failing to act or provide to the child the basic requirements deemed necessary for his or her survival. That is, you purposefully fail to provide for the child. This is different from negligence or being reckless. Thus, you are legally excused from child neglect charges if it is ascertained that through no fault of your own, you are unable to earn enough money to provide for your child.

 “No-fault” implies that it was beyond your capacity to provide for the child. You will not be legally excused for a no-fault if you choose to satisfy other things first, leaving your children’s needs behind or if you are reluctant to look for a job. Your children, according to the law, are a number one priority; thus, you are expected to satisfy them first before anything.

Necessities refer to anything that is necessary for the provision of the physical needs that minors require. Some of the necessary things include clothing, food, shelter and housing among others. Remedial and medical care are among other needs that are captured under the same legal section. Remedial care refers to the spiritual treatment that parents give to their children. For instance, some groups of individuals believe in prayers as a source of healing to their children. If that is the case with you, the law could excuse you at certain times from not treating your child. However, for such believes to hold, some facts need to suffice. For instance, the prayers or prayer based treatment must always be provided by a practitioner from a well-known church or a denomination. The law can still prosecute you if the child doesn't get better or if the child’s condition gets worse. For example, under PEN 273a, you can be prosecuted for child endangerment. If the child dies, you can be charged with involuntary manslaughter under PEN code, 192 (b).

What Is the Definition of “A Parent” under the California Law?

There are various perspectives under which you can be viewed as a parent in California to a child. For instance, under Pen 270, you are a parent if:

  1. You are married and living with the mother to the child

You are a father of the child if your wife gives birth. And during that time, you were living with her and it is known that you are not sterile or impotent. You also qualify to be the father of the child if the child was a result of AI which you consented to all its procedures through documents.

Sometimes, you may not be the biological father to the child but the law views you as one. This occurs where the actual father to the child is unclear and the mother claims that you are the father. You only avoid this situation if, within two years of childbirth, you take to the court and dispute paternity. If the court finds out that you are indeed not the father, the title will be waived off you.

  1. You divorced with a person with whom you have a child

You may not have any custody rights but the law still views you as the parent to the child even after divorce. In extreme cases, you are a parent to the child even if you have never met or even seen the child since he or she was born. The law does not recognize you as a parent only if:

Your child has been given out for adoption legally or if the court has declared the baby, neglect or abandoned. And as a result, another person has been given the responsibility to take care of the child.

  1. You never married the child’s mother

The law also recognizes you as a parent to the child even if you are not married or have not been in a serious relationship. For instance, if you ever dated or had sex once with your opposite-sex friend, and in the process, a child resulted, you will be fully responsible for the child. In such a situation, the law will fully charge you with child neglect if you fail to be responsible.

For example, Ian and Shirley had a short-lived date. In the process, Shirley got pregnant. Ian advised her to abort but she strongly declined to accept the advice. The two parted ways and never communicated for years. Later, Shirley had a baby girl but due to illnesses and poverty, she was unable to provide for her. She decided to abandon the child. Ian knew of the child and the situation but never minded to chip in for the child care. As a result, the law would consider Ian’s actions as child neglect although he never married Shirley and was no longer in a relationship with her.

  1. You have legally adopted or assumed the responsibility of taking care of the child

There are various means in California through which you can assume parental responsibilities other than being a biological father. For instance, you can attain the status through the adoption of the child, or through the assumption of parental responsibilities. Through either means, the responsibility is waived by the actual parent legally. The person will never be responsible for child neglect if the minor suffers later. That is, you will be legally obligated to providing for the child.

PEN code 270 also applies to the unborn. As a parent, you are responsible for the provision of necessities to the unborn child.

What Are the Penalties for Failure to Provide Care or “Child Neglect?”

Child neglect is a wobbler offense in California. As such, you can be charged with a misdemeanor or a felony. As a misdemeanor, the penalties include:

  • A maximum of one year in jail;
  • Fines not exceeding 2000 dollars;
  • Misdemeanor summary probation.

Failure to provide care can also be viewed as a wobbler, especially where you have a prior conviction. However, it applies if the court of law had earlier established that you are the parent to the child then later you fail to provide for the baby. People who seek paternal rights often face these charges. Felony penalties include:

  • Fines not exceeding 200 dollars;
  • A maximum of one year in prison; and/or
  • A maximum of one year and an additional one day in the state prison.

Constitutionally, the wording presented on PC 270 may be limited to exempt the parents from felony charges. It has been established that felony charges go against the “equal protection clause of the United States” especially if you have never been convicted of child neglect. Harsh penalties would also bar fathers from seeking paternity rights. In addition, other men will be compelled to pay for child support wrongly for fear of being considered the child’s father and later on charged with child neglect. Therefore, you may face a felony charge on Failure to Provide Care if:

  • You have once lost in a paternity case; and,
  • You have had a conviction on the offense at least once.

Legal Defenses for Failure to Provide Care

  1. Mistaken identity/mistake of facts

In some cases, you may be accused of failing to provide care to the minor based on mistaken facts. This mostly occurs when another person purporting to be a reporter gives false information or signs linking you to child neglect. California law under the Child Abuse and Neglect Reporting Act identify some individuals who should be relied on for child neglect reports. They include teachers and school administrators, the clergy, social workers, and the doctors or nurses. Such mandated reporters often face misdemeanor charges if they fail to report any sign of child neglect. To protect themselves, they may end up reporting even the slightest signs which should not have been an issue. You can, therefore, protect yourself from such allegation by providing evidence of your care on the minor. You can also show the court attempts that you have made to provide for the child, especially where there is no custodial parent.

  1. False Allegation

In some cases, your former wife/ husband may sue you for child neglect. This may be motivated by the person’s desire to have more money after you have divorced, or may even be done out of malice and revenge. Your experienced attorney will scrutinize the facts behind the allegation and possibly convince the judge to drop the case.

  1. You are not the child’s parent

If you are not the parent to the child alleged to have been neglected, you should not be convicted of PC 270 offense. The law recognizes you not to be a parent if:

  • The child had been adopted legally by another person;
  • During the child’s birth, the mother was married to another person;
  • You are not the biological father to the child;
  • The child was not conceived through artificial insemination and if that it is the case, you did not consent to the procedures in That is, the AI was administered against your will.
  1. You did not act willfully

You will be convicted of child neglect if only your actions were purposeful or you did them out of your will. That is, you knew that your actions were against the law but went ahead to commit them. That implies the action is your fault. To defend you, your attorney will argue that you did not know that your child required medical protection or you did not have an ability to provide for your child’s necessity.

  1. You were lawfully excused from seeking medical care

Penal code 270 allows any parent to seek alternative medical care for their children. Such alternatives may include prayer healing through faith. If you provided medical care through such means, you should not be viewed to have failed to offer medical attention to your child. However, for this defense to hold:

  • The child should not be seriously sick or dying;
  • The church or the organization you seek healing prayers from should be well recognized;
  • The healing practitioner should be known or recognized by his or her church organization and the members.
  1. You were unable to provide for your child’s necessities

The law excuses you from child neglect charges if you are unable to provide for your child. However, it should be ascertained that your inability to provide is not your fault. Typically, the law requires that you always put first your child’s necessities. If you are in any of the following situations, the law can excuse you from child neglect charges:

  • After working, you got finances just enough to cater to some of the child's necessities only;
  • You were terminally/seriously ill;
  • You were out of work or lost a job and your efforts to look for another job were

Your attorney may not be able to defend you if you spent your money to support the children of your newly found spouse leaving your other children, or you skipped your child’s doctor appointment in order to satisfy your other needs such as buying clothes. Also, you should not view some available jobs as “low level” that renders you jobless and unable to provide for your kids.

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Charges Related to PC 270

There are a number of offenses in California that are closely related to pc 270. Some of them may be prosecuted alongside the offense while others may be used as substitutes. Compared to pc 270, some of the charges may be harsh while others are lenient. It is worth knowing each of them so that you can know which option favors you, especially where you are given an option for a plea bargain.

PC 273 (d), Child Abuse

This section is one of the main child abuse laws in the state of California. It is sometimes termed as corporal injury to a child/minor. According to this law, it is a crime for you to cause physical injuries or cruel punishment to a child. Examples of activities deemed abusive to the child include slapping, whipping or spanking with your belt mercilessly, making him/her walk on their knees or kneel for a long time to an extent of hurting him or her. It also includes all the injustices directed towards the child.  

The offense is a wobbler and hence, can be charged as a misdemeanor or as a felony. As a misdemeanor, the penalties include fines not exceeding 6000 dollars and/or a maximum of one year in county jail. As a felony, the penalties include a maximum of 6000 dollars as fine, and two, four or six years in county jail. If you have had a prior conviction of the offense within ten years, you will receive an additional four years sentence.

Some defenses for this charge include:

  • The injuries suffered by the child were accidental;
  • You are not the one who abused or injured the child, i.e., false allegations;
  • The injuries suffered by the child resulted from something else other than the alleged abuse;
  • You were disciplining your child, which is one of your legal rights. Thus, you did not intend to abuse the child.

PC 273 (a), Child Endangerment

The section is almost similar to the child abuse law only that it is not a must that the child suffers physical harm or injury for you to face child endangerment charges. Under PC273(a), it is an offense to subject a child to a situation that jeopardizes his or her health. For example;

  • Leaving your child alone in a room with poisonous chemical within his or her reach;
  • Cooking drugs like meth in the presence of your child;
  • Leaving your child with a drug addict, or a person with numerous criminal convictions.

The crime is considered to be lighter than child abuse through the penalties are the same. As a misdemeanor, the penalties include a maximum of one year in county jail and fines not exceeding six thousand dollars. Felony child endangerment subjects you up to 10000 dollars or more in fines and 2, 4 or 6 years in county jail. Also, four years are given as additional sentence if you had a prior conviction.

Getting an experienced attorney can help you avoid the penalties. The attorney can argue that:

  • You did not endanger the child willfully;
  • You were within your legal rights of disciplining the child and that you did not intend to endanger his or her life;
  • You are not the one who endangered the child, which is a case of mistaken identity.

PEN 278; Child Stealing/Abduction 

You are accused of child stealing if you take a child maliciously from his/her guardian. Child abduction and kidnapping charges are closely related. The difference is on the victim of the offense; the victim in kidnapping charges is a child who has been kidnapped but for child abduction, the victim is the parent whose child has been stolen. Thus, you may face both kidnapping and child stealing charges. PEN 278 is a wobbler. Misdemeanor penalties for abduction include a maximum of 1000 dollars as fines and/or a maximum of one year in county jail.

if you are accused of felony child abduction charges, you face fines not exceeding 10000 dollars, and a jail term of 2,3 or 4 years. In some cases, you may be required to restitute the victim or pay the government all the costs suffered or incurred while tracing the abducted child.

Possible defenses include:

  • You were wrongfully accused;
  • You had good intentions or reasons for taking the child, that is, you did not act maliciously;
  • You are the legal custodian of the child, thus, you should not be convicted of the abduction offense.

PC 278.5; Deprivation of Custody

There are two scenarios in which you can be charged under PC 278.5:

  • If you are a non-custodial parent and you attempt to deprive the custodial parent their custody right to the child;
  • If you interfere or prevent the non-custodial parent from exercising or enjoying his/her visitation rights.

PC 278.5 is a wobbler offense whose penalties include fines no exceeding 1000 dollars and a maximum of one year in county jail if it is treated as a misdemeanor. Felony conviction of the offense results to penalties including a maximum of 10000 dollars fines, and eighteen months, two or three years confinement in county jail. Possible defenses include:

  • You were protecting the child;
  • You are falsely accused;
  • The other person (parent) had no right for either child custody or child visitation;
  • Your actions were not malicious.