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Child Neglect: California Penal Code Section 270

Most crimes take place when a person does some act prohibited by law. Penal Code Section 270, commonly referred to as “child neglect,” is a rare instance in the law where the failure to perform an act can cause someone to be charged with a crime.

Our Criminal Defense Attorneys will Require The District Attorney to Prove Three Elements:

In order to prove that a defendant is guilty of child neglect, a prosecutor must be able to prove ALL of the following elements

  1. The defendant is the parent of a minor (person under age 18).

When the law states “parent of a child,” it means literally the biological or adoptive parent. Even in the case of artificial insemination, a biological parent can be held criminally responsible for neglect for a child they never met or provided care to, so long as written consent was given for the artificial insemination.

Also, an adoptive parent is considered a parent under this statute because the adoptive parent has assumed legal responsibility for the minor's care. As that parent has assumed legal responsibility for the minor’s care.

It is no excuse if the parents are separated, divorced or were never married. As long as the biological or adoptive component is satisfied, the defendant is considered the parent of the minor.

For the purposes of this statute, an unborn child is considered a minor for whom a parent must provide necessities.

  1. The defendant abandoned, deserted OR failed to provide necessities for the minor.

Necessities include food, clothing, shelter, child support, and medical care (or other remedial care, to be discussed below). A cell phone, internet connection, and brand name athletic shoes (as examples) are not, despite your child’s arguments, necessities required to be provided pursuant to Section 270.

Child support is perhaps the most common necessity involved in allegations of child neglect. In looking at the elements of the crime, above, whether the parent has custody is not relevant. A non-custodial parent has an obligation to provide necessities for a minor child absent from some other court order or excuse. In fact, the parent of a child need not even set foot in the state of California to be guilty of this crime. So, not only can a conviction here arise for doing nothing (in fact, doing nothing is the problem), but you can commit a crime in California without even being in California.

The issue of providing the necessity of medical care most often arises where parents decline traditional “western” medical treatment for their child. Most of us have heard examples of parents who refuse to provide vaccines to their children or refuse what may be deemed as necessary traditional medical treatment in favor of non-conventional methods. If a child is harmed or even dies as a result of a willful failure to provide recommended medical treatment for religious reasons, could they be convicted of this crime?

The answer is probably not for this particular crime. PC 270 provides the following exception:

If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination and by a duly accredited practitioner thereof, such treatment shall constitute “other remedial care.”So, for example, if Ms. Walker, a Christian Scientist, opts to subject her sick child to “spiritual treatment” rather than traditional medical care and the child subsequently dies, Mrs. Walker can be charged with child endangerment and manslaughter, but not child neglect.

  1. The defendant's failure to provide necessities was willful and without lawful excuse. (See discussion of “willful,” below.)

Criminal Defense Lawyers' Suggested Defenses:

  1. The defendant is not the biological or adoptive parent of the minor child.
  1. The defendant had a lawful excuse for their alleged neglect, for example, they provided “other remedial care” (discussed above) in response to the child’s medical needs.
  1. The defendant did not act willfully and was unable, for some legitimate reason, to provide for the child.

A parent “who exercises reasonable diligence to procure employment and fails to secure work through no fault of his [or her] own, and who is without property or means with which to support his [or her] children, is not guilty of willfully omitting to supply them with necessary food and clothing.” People v. Caseri (1933) 129 Cal.App. 88, 92. The parent is required to sincerely and diligently endeavor to provide for his or her children. Unemployment through no fault of the parent’s efforts or even a medical inability to work will be considered in determining whether the failure to provide necessities was willful. However, the court will also consider the parent’s spending choices to ensure that the available funds are being directed towards the child’s care.

  1. The defendant was wrongfully accused.

In some cases, the defendant may have been wrongfully accused of child neglect. This often arises where a concerned citizen or a mandated reporter, such as a teacher, doctor, or social worker, suspects the child’s needs are not being met by the parents and reports their suspicions to the authorities. If the defendant can demonstrate that his or her neglect was not willful or that the allegations are incorrect or if there are any legitimate legal excurses for the defendant's behavior, the charges will most likely be dismissed.

Penalties for Violation of Penal Code § 270:

First, this crime is a wobbler. However, a violation of this law may also be charged and punishable as a felony. Typically, a violation of this law is a misdemeanor, punishable by a county jail sentence of up to one year and/or a fine up to $2,000. However, a violation of this law may also be charged and punishable as a felony when a person has been declared the parent of a minor as the result of some prior judicial proceeding (for instance, a child custody hearing) and thereafter commits the crime of child neglect. As a felony, a violation could result in up to one year in a county jail or one year plus one day in state prison and/or a file up to $2,000.

Alternatives to Criminal Prosecution Suggested by Our Criminal Defense Lawyers:

  1. Mental Health Diversion

Some defendants who suffer from PTSD or other qualifying mental conditions may qualify to participate in a Mental Health Diversion program. Participation in a Mental Health Diversion Program is an alternative to criminal prosecution. If a defendant is qualified by the Court and successfully completes the program, they may very well be eligible for a Petition to Seal which, if granted by the court, effectively eliminates any record whatsoever of the criminal charges or arrest in criminal records that are available to the public.

  1. Military Diversion

There are favorable aspects of a felony conviction for veterans pursuant to PC 1170.91. In addition, veterans can take advantage of a military diversion program under Penal code 1001.80. This is s program that benefits veterans who can convert certain mental conditions to military service. Once a veteran is qualified they are taken completely out of the prosecution mode and enter a program. Once that program is complete, not only are the criminal charges dismissed but the veteran is also in a position to seal which will eliminate the arrest record. Further information regarding a military diversion program can be found by clicking military diversion.

Criminal Record Improvement:

Read More:Expungement/Dismissal of Charges

Even if someone is convicted of a Penal Code 270 violation, upon successful completion of probation, a defendant can file a Petition to Expunge their record and dismiss the charges. This adds a very favorable entry to their criminal record and is extremely helpful when applying for employment, housing, etc.

Remember, Ronald Dinan and Associates, is a firm of experienced and aggressive criminal lawyers, who can help in achieving the best outcome in your case. Many times criminal case dispositions will include reduction or outright dismissal of the number and/or severity of criminal charges, diversion programs, probation, reduced fines with installment payments, alternatives to jail, etc.

To get immediate help with your criminal matter, we invite you to call us to discuss your case. We answer all telephone calls in a polite, professional and helpful manner.

  • Santa Rosa - 707-571-5550
  • Napa - 707-252-0102
  • Marin - 415-491-0223
  • Lakeport - 707-262-0503
  • Ukiah - 707-462-5950
  • Eureka - 707-445-1348

The Actual Law: California Penal Code Section 270 - Child Neglect

If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so. Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse.

The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts. The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned. The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination. If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute “other remedial care”, as used in this section.

(Amended by Stats. 1984, Ch. 1432, Sec. 1.)