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Legal Pleadings:

Failure to Seek Medical Care

MOTION TO DISMISS

COMES NOW the Defendant, pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, respectfully moves this Honorable Court to dismiss the charge filed herein, and in support thereof states as follows:

FACTS
1. The Defendant is charged in Count One of the Information filed in the above-styled case with aggravated child neglect for failure to provide C. P. with necessary services, in violation of §§ 827.03(1)(e) and 827.03(2)(b), Fla. Stat., in Duval County, between April 27 and May 15.
2. The Defendant is charged in Count Two of the Information filed in the above-styled case with aggravated child neglect for failure to protect C. P., in violation of §§ 827.03(1)(e) and 827.03(2)(b), Fla. Stat., in Duval County, between April 27 and May 15.
3. C. P. is the minor daughter of the Defendant’s girlfriend, M. P. aka P.
4. The Defendant lived with Ms. P. and C. P. for approximately six years.
5. A receipt from the In-Town Suites in Jacksonville, Florida shows the Defendant checked in on April 27.
6. On May 15, at approximately 2:00 p.m., Ms. P. reported to the Jacksonville Sheriff’s Office (JSO), that her daughter, C. P., age 12, had run away from the Motel 6 where they were staying.
7. JSO officers reported they located C. P. at a Shell gas station across the street from the Motel 6 on May 15.
8. The JSO officers reported noticing several injuries and scars on C. P., including what appeared to be a burn scar, and reported suspected child abuse or neglect to the Department of Children and Families (DCF).
9. C. P. told the officers that her injuries were caused accidentally, and that her burn scar was caused by a sunburn after she fell asleep on the beach in Virginia, approximately one month earlier.
10. C. P. was placed in DCF custody and evaluated at a children’s hospital on May 15.
11. C. P.’s May 15 children’s hospital records state the following regarding her medical condition on that date:
a. General: Alert, no acute distress, well nourished, well hydrated.
b. Skin: Warm, dry, pink, intact, no rash, normal for ethnicity. L shoulder, back upper arm large scar with well demarcated hyperpigmented boundaries. Nontender. L lower lumbar area two additional old scars. Multiple scratches over neck, arms” (emphasis added).
c. Rationale: Large healed scar on L shoulder/back and upper arm, does not seem consistent with sunburn as stated by patient (emphasis added).
d. Condition: Stable.
e. Disposition: Discharged
f. Follow up with: If symptoms worsen, return to ED.
12. The May 15 Emergency Department records do not reflect that C. P. was treated for her injuries or that any medication was prescribed or recommended for C. P.
13. On June 1, C. P. was interviewed by K. S. with the Child Protection Team (CPT). C. P. provided the following statements regarding her burns during this interview:
a. She lived with her family, which consisted of her mother, her step-father and her two younger sisters.

b. Before her family lived in Jacksonville, they lived in Virginia.
c. While they lived in a house in Richmond, Virginia, her mother punished her by pouring boiling water on the side of her neck, shoulder, arm, back, and legs.

d. The burn made her skin bubble.
e. Her mom treated her burns with vaseline, peroxide, and aloe vera, and gave her Advil for pain.

f. When her mom went to work, her dad (Defendant) would pour peroxide and aloe vera on her – “but that was way, way later, when it started healing.”

g. They had gauze, but she mainly went without gauze until the third week, when she just had scabs.

h. She was not able to move for two weeks after she was burned, during which time she mostly slept and played on her tablet.

i. The pain lasted for about a month.
j. A doctor or other medical personnel never looked at her injuries.

MEMORANDUM OF LAW
A. (c)(4) Law – Generally
This Motion is filed pursuant to provisions of Fla. R. Crim. P. 3.190(c)(4), stating that a motion to dismiss may be filed on the grounds that –
there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

The facts, based on the eye witnesses sworn testimony, are undisputed, and application of the law to the undisputed facts shows that the State has not, and cannot, meet its factual burden as to this charge. Accordingly, dismissal of the charges is appropriate.

B. No Facts Establish Causation
The Defendant is charged with two counts of aggravated child neglect, both second degree felonies. Those require the State to establish that his failure to provide services (Count One) or his failure to protect (Count Two) “caused great bodily harm, permanent disability, or permanent disfigurement” to C. P. Fla. Std. Jury Inst. 16.5. The lesser included offense of child neglect, a third degree felony, requires the State to prove that the defendant’s failure to provide services or failure to protect “resulted in, or reasonably could have resulted in, serious physical or mental injury or a substantial risk of death to a child.” Fla. Std. Jury Inst. 16.6. Respectfully, the material undisputed facts do not establish a prima facie case of aggravated child neglect or child neglect.

1. Count One
Count One alleges that the Defendant failed to provide necessary services to C. P. from April 27 to May 15, and in doing so, caused great bodily harm, permanent disability, or permanent disfigurement. The undisputed facts do not establish that the Defendant’s failure to provide services to C. P., during the alleged time period, when the family resided in Jacksonville, Duval County, “caused great bodily harm, permanent disability or permanent disfigurement,” to C. P.

C. P. did suffer serious injuries which caused her great bodily harm, permanent disability, or permanent disfigurement. However, this was not caused by the Defendant’s failure to provide services during the alleged time period. It was caused by (1) her mother pouring boiling water on her, in Virginia, and (2) her mother failing to immediately provide proper medicine or medical services for her.

In Poczatek v. State, 213 So. 3d 1065 (Fla. 3d DCA 2017), the defendant was charged with aggravated child neglect when he failed to obtain medical treatment for a child who was injured while in his care. The court held that the evidence was insufficient to show that the defendant’s failure to obtain medical services or treatment for a child, after he initially suffered injuries, caused great bodily harm, permanent disability, or permanent disfigurement to support the defendant’s conviction for aggravated child neglect. Id. at 1071. The court held that there was no evidence from which the jury could have found that the defendant’s actions, after the incident which caused the injuries, exacerbated the child’s injuries in any way. Id.

As in Poczatek, the Defendant’s failure to seek medicine or medical services after C. P.’s injuries occurred, while they lived in Jacksonville during the alleged timeframe, did not cause C. P. great bodily harm, permanent disability, or permanent disfigurement, and his actions did not exacerbate her injuries.

The court in Poczatek also concluded that the State failed to present evidence that the defendant willfully or by culpable negligence committed the lesser included offense of child neglect because the evidence did not show that Poczatek voluntarily and consciously, or grossly and fragrantly, failed to seek necessary medical services for the child when such failure could have reasonably been expected to result in serious physical injury or a substantial risk of death. Id. at 1072. Similarly, there is no evidence that the Defendant’s failure to provide medical services, during the dates alleged when the family resided in Jacksonville, “resulted in, or reasonably could have resulted in, serious physical or mental injury or a substantial risk of death” to C. P., as required to prove the lesser included offense of child neglect.

C. P.’s medical records from the Children’s Hospital, dated May 15, clearly establish that on that date, only two weeks and four days after the family arrived in Jacksonville on April 27, C. P.’s burns were “healed” and “nontender.” When C. P. was seen at the Children’s Hospital, she was not given medical treatment for her burns, was not prescribed any medicine, and was discharged, with the only follow up instructions being that she should return, if her condition worsened.

2. Count Two
In Count Two, it is alleged that between April 27 and May 15, the Defendant failed to protect C. P. From abuse, neglect, or exploitation by another person, and in doing so caused great bodily harm, permanent disability or permanent disfigurement to C. P. As in Count One, no facts exist which establish the Defendant’s failure to protect C. P. from abuse by her mother, during the dates alleged, when the family resided in Jacksonville, caused C. P. great bodily harm, permanent disability, or permanent disfigurement or “resulted in, or reasonably could have resulted in, serious physical or mental injury or a substantial risk of death.” C. P. did not sustain any serious injuries while the family resided in Jacksonville, during the alleged timeframe.
Because the State cannot establish that the Defendant’s failure to seek medical services or failure to protect C. P. during the dates alleged caused or resulted in her injuries or a substantial risk of death, the State cannot establish a prima facie case of child neglect in the second or third degree, and both counts should be dismissed.

C. No Authority to Obtain Medical Services
Count one alleges the Defendant violated § 827.03(1)(e)1, Fla. Stat., which states as follows:
A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including but not limited to food, nutrition, clothing, shelter, supervision, medicine and medical services that a prudent person would consider essential for the well-being of the child.
(emphasis added).

The Defendant lived in the household with C. P., and thus, meets the statutory definition of “caregiver” pursuant to Section 827.01(1), Fla. Stat. However, the undisputed facts do not establish that the Defendant failed to provide any necessary services for C. P. Although he was an “adult household member,” the Defendant was not C. P.’s father or legal guardian, and was prohibited by Florida law from obtaining medical services for C. P., without the consent of her parent or guardian.

Section 743.065, Fla. Stats., states that a “person who has the power to consent [to medical treatment] as otherwise provided by law” includes “a natural or adoptive parent, legal custodian, or legal guardian.” Here, the Defendant was none of those things, and did not meet the definition of a person who had the power to consent to medical services for C. P.

Section 743.065(2), Fla. Stat., states that if “a person who has the power to consent as otherwise provided by law” cannot be contacted after a reasonable attempt, the others who can consent to medical services for a minor include: a health care surrogate, the stepparent, the grandparent, an adult brother or sister, or an adult aunt or uncle. As the boyfriend of C. P.’s mother, the Defendant does not meet this criteria. Furthermore, according to this statute, other family members are only permitted to provide consent for medical treatment, if the parent cannot be reached. Here, C. P.’s mother was continuously available, and was the only person who could legally provide consent for medical treatment for C. P.

Accordingly, based on the undisputed facts, the State has failed to state a prima facie case as to the elements of child neglect or aggravated child neglect, and thus the undisputed facts do not establish a prima facie case of guilt against the defendant, making dismissal of the charges appropriate.

WHEREFORE, the Defendant moves the Court to enter an order dismissing both counts of the aggravated child neglect filed herein.