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What Is Injury To A Child By Omission?

An injured child can bring serious consequences to the minor’s parents or legal guardians. There are different reasons why a child could get injured, in some cases, it might be caused by someone else on purpose. On the other hand, the child could also be injured by omission.

An injury to a child by omission happens when the person who has the custody or the legal duty to take care of the child, fails to take action to prevent an injury. Neglect child cases constitute more than 75% of all child maltreatment cases in the United States. This number might be surprising because when we think of domestic violence we normally think about abusive parents, rather than a custodian who failed to take action. Neglect child cases are difficult to identify and therefore they are more complicated to prevent. 

Understanding Child Neglect: What Constitutes Injury by Omission?
What Is Injury To A Child By Omission? Contact Us to Get Help.

What is an omission?

When we talk about child injury by omission, the term “omission” refers to the lack of action that leads to a kid being injured. The omission is made by the minor’s parents, legal guardians, or custodians. A person who takes care of a child has the legal duty to provide care, food, shelter, and medical attention to the minor. When a child is at risk of harm, the minor’s care has the obligation to make whatever is needed to prevent the child from being harmed. 

What is criminal negligence?

Normally crimes are understood as criminal actions done on purpose, but that is not always the case. Criminal negligence means that a person committed a crime due to acting negligently in a situation where they should have been aware of the risk of their actions. 

Let’s think about the following situation:

Katy has a 9-month-old daughter named Lucy. Katy has a boyfriend named Brandon, who recently moved in with Katy and Lucy.  Katy works from 9-5 during weekdays but Brandon is unemployed. Due to the financial hardships they are going through, Katy cannot pay for a daycare or a babysitter so Brandon takes care of Lucy. After a couple of weeks, Katy notices bruises in different parts of Lucy’s body. When she confronts Brandon, he says that he does not know anything about that and that Lucy probably did that to herself playing. One day after Lucy comes back from work she finds Lucy crying. Quickly, Katy tries to see what is happening to Lucy. Katy realizes that Lucy had not eaten all day and she is hungry. Brandon justifies himself by saying that he forgot because he was busy applying for jobs online. Katy’s parents and friends warn her about Brandon. All of them think he does not take proper care of Lucy and suspect he abuses the baby. After a couple of weeks, Lucy is found dead due to a serious brain injury. Autopsy reveals that Lucy suffered a violent blow to the head causing her instant death. Brandon confesses that he hit Lucy in the head after she was crying unceasingly and he was trying to make her stop. Doctors who performed the autopsy also found evidence of previous physical abuse, meaning that Brandon used to hit Lucy constantly. Brandon is found guilty of Lucy’s death. Katy is also found guilty of child endangerment. Why did this happen even if Katy did not cause Lucy’s death? Katy should have been aware of the substantial risk of leaving her baby with someone who is clearly not qualified to take care of a baby. She also ignored clear signs of child abuse even though people surrounding her warned her. These reasons are enough to lead the court to believe that Katy is guilty of criminal negligence. 

What is the punishment for injury to a child?

The punishment for causing injuries to a child varies depending on the severity of the injuries sustained by the minor. Injury to a child can be considered a first degree, second degree, third degree, or state jail felony. Injuries can be split into bodily injury and serious bodily injury. Bodily injury refers to all injuries that cause physical pain but do not put in danger the minor’s life. Serious bodily injury means that the injuries were so serious that put the minor’s life in danger, caused the death of the minor, or left the child with serious permanent disfigurement or loss of a bodily member or organ. 

  • Causing serious bodily injuries on purpose to a minor is considered a first-degree felony. If found guilty the defendant can face 5-99 years in prison or a life sentence. 
  • Causing bodily injuries to a child on purpose is a third-degree felony. Punishment can be up to 10 years in prison.
  • Causing serious bodily injury to a minor due to reckless conduct is considered a second-degree felony. People found guilty of this crime can face up to 20 years in prison. 
  • Causing bodily injury to a minor due to reckless conduct is considered a state jail felony. Punishment can be up to 2 years of prison and a fine of up to $10,000.
  • Causing serious bodily injuries due to criminal negligence can be punished with up to 2 years of prison and a fine. 
Understanding Child Neglect: What Constitutes Injury by Omission?
Greenberg & Stein | Child Injury Lawyer | Contact Us to Get Help

Are there affirmative defenses to injury to a child?

Yes, there are. Affirmative defenses allow the defendant to have a valid excuse to avoid legal responsibility in case a child is injured. 

  • If the defendant notified in writing to the Department of Protective and Regulatory Services that they would not provide care to the child prior to the offense. 
  • If the defendant provided or omitted medical care as indicated by a licensed physician, or emergency medical assistance was provided by an unlicensed person with good intentions. 
  • If the defendant claims that the act or omission was done following the instructions of a “recognized religious method of healing”.
  • If the defendant is being accused of an act of omission but there is no evidence that the person was aware of the injuries sustained by the child and failed to report the incident. 

Is injury to a child an aggravated offense?

Depending on the severity of the injuries sustained by the child, the offense can be considered aggravated. If there is evidence that the offender acted on purpose and caused serious bodily injuries or serious mental deficiency, they can be charged with an aggravated offense. Aggravated offenses carry harsher punishments. 

What is not child abuse?

Thousands of kids suffer domestic violence, however, not all reports of child abuse submitted to Child Protective Services are valid. Some allegations of child abuse cannot be considered abuse and therefore the guardians cannot be punished. 

  • If a child does not attend school voluntarily without a good reason. Parents cannot be accused of child abuse when this happens. 
  • Guardians cannot be accused of abuse if a child runs away from home without their permission.
  • If a kid is left unattended but if the parents made the necessary arrangements to ensure the child is not in danger. 
  • When a child is abused by another child that does not live in the same house.

Can daycare owners and operators be charged with injury to a child?

Owners, staff, and operators of daycare facilities may be charged with child abuse. They take on the responsibility of caring for a child when their words or actions lead a reasonable person to believe that they will ensure the child’s safety. If they intentionally or with criminal negligence cause a child to get harmed, they can be charged with injury to a child.

At Greenberg & Stein P.C. We know how important the safety of children is. If your child has been a victim of abuse or has suffered injuries due to the negligence of the person who was in charge, do not hesitate in taking legal action. Our attorneys have vast experience handling cases related to domestic abuse and child injuries. Call us at 888-716-4508 to schedule a free consultation with one of our attorneys to review your case.

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