In Tennessee, child neglect is the crime of failing to take proper care of a child for whom the accused had a duty to provide care, when the neglect results in harm to the child. It is distinguished from child abuse in that for the crime of neglect, the accused does not have to have actually inflicted the harm to the child, but does have to have failed to act to prevent the harm when the accused had a legal duty of care. In the recent case of State v. Higgins, M2014-01171-CCA-R3-CD (Tenn.Crim.App. 7-27-2015), the Court of Criminal Appeals reversed a conviction for aggravated child neglect because the State had not proven that the defendant in that case had a legal duty of care to the injured child.
In the Higgins case, the defendant was the brother of the child’s mother’s boyfriend. The child had been severely burned by scalding hot bath water, while in the care of the defendant’s brother. The defendant was not present when this occurred. Rather than seek immediate medical assistance, the child’s mother brought the child to the residence of the defendant’s grandmother. The defendant was present and observed the burns. The defendant obtained over-the-counter ointment and gauze from a local drug store to attempt to treat the injuries. Within a few days, the child was eventually taken to the hospital, after the maternal grandparents learned of the burns. The delay in professional medical and burn treatment resulted in the injuries becoming significantly worse than they would have been otherwise, and in scarring which may have been prevented if the child had received proper medical treatment in time.
Either the child’s mother or the mother’s boyfriend may be guilty of child neglect in failing to obtain the necessary medical care for the burns when they should have sought it. However, the defendant was neither related to the child nor entrusted with responsibility for her. He was merely present at a residence where the mother brought the child. His act of obtaining ointment and gauze did not make him responsible. He was under no legal duty to report the injuries or seek professional medical attention. So, though the jury found him guilty of neglect for not reporting the injuries, the Court of Criminal Appeals reversed and dismissed the conviction for lack of evidence that he had a legal duty of care.
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