Indiana Law Review


Indiana's Neglect of a Dependent Statute:*
Uses and Abuses

Kenneth D. Dwyer**

Introduction

A. State v. George
1

At approximately one o'clock in the afternoon ofMarch 13, 1993, in Boone County,

Indiana, Karen George approached a "T" intersection when another car turned the corner

short, almost colliding with Ms. George. To avoid the collision, Ms. George applied the

brakes and turned toward the ditch, losing control on the icy road. She missed the other

car, but spun around and landed on top of a cement abutment that protected the end of a

drain pipe. Her rear wheels were off the ground, so she could not get out of the ditch.

The other car did not stop to help.

Ms. George and her eleven-year-old daughter, who was with her at the time, walked
to a nearby house to call for help. It was a cold day and the house belonged to friends, so

Ms. George had her daughter stay at the house while she went back to the car to wait for

help to arrive.

During routine questioning, the responding police officer asked if anyone had

witnessed this one-car accident. Ms. George replied that other than the people in the car

she had swerved to miss, only her daughter witnessed the accident. After telling the

officer where her daughter was, she and the officer walked around the car to see if it had

been damaged. Only then did the officer notice that Ms. George stumbled and was

unsteady on her feet. He then noticed the smell ofalcohol on her breath. A blood-alcohol
level test showed she had 0.23 percent by weight of alcohol in her blood. She was

arrested for operating a vehicle while intoxicated.
2

After reading the police report, the

prosecutor decided to charge Ms. George not only with driving while intoxicated, a class

C misdemeanor,3 but also for neglect of a dependent,4 a class D felony.5

* Ind. Code § 35-46-1 -4(a) (1993).
** J.D. Candidate, 1995, Indiana University School of Law—Indianapolis; B.M., 1984, Indiana

University at Fort Wayne; B.M. Ed., 1986, Indiana University at Fort Wayne,

1

.

State v. George, Trial No. 06D02-9303-CF95 (Boone County Superior Court, Criminal Division

2, tried November 21, 1993).

2. Ind. Code § 9-30-5-1 (1993) ("A person who operates a vehicle with at least ten-hundredths

percent (0.10%) by weight of alcohol in the person's blood commits a Class C misdemeanor.").

3. "A person who commits a Class C misdemeanor shall be imprisoned for a fixed term of not more

than sixty (60) days; in addition, he may be fined not more than five hundred dollars ($500)." Ind. Code § 35-

50-3-4(1993).

4. Ind. Code § 35-46-l-4(a) (1993).

5. Ind. Code § 35-50-2-7 (1993) provides:

(a) A person who commits a Class D felony shall be imprisoned for a fixed term of one and one-

half (1 1/2) years, with not more than one and one-half (1 1/2) years added for aggravating

circumstances or not more than one (1) year subtracted for mitigating circumstances. In addition,

he may be fined not more than ten thousand dollars ($10,000).

(b) Notwithstanding subsection (a), if a person has committed a Class D felony, the court may



448 INDIANA LAW REVIEW [Vol. 28:447

George is a recent example of prosecutors' creative use of Indiana's Neglect of a

Dependent Statute
6
to protect dependents. Part I of this Note provides a detailed study of

prior use of this statute. In Part II, which explores abuse of the statute, this Note examines

problems that have been encountered in applying the statute. Part II further provides the

outcome of the George case, and other recent applications of the statute, which

demonstrate the need for revising the statute. Part III concludes this Note with a

recommendation for updating the statute.

B. Current Status ofthe Statute

Indiana's Neglect of a Dependent Statute states that:

(a) A person having the care of a dependent, whether assumed voluntarily or
because of a legal obligation, who knowingly or intentionally:

(1) places the dependent in a situation that may endanger his life or health;

(2) abandons or cruelly confines the dependent;

(3) deprives the dependent of necessary support; or

(4) deprives the dependent of education as required by law;

commits neglect of dependent, a Class D felony. However, except for a
violation of clause (4), the offense is a Class B felony if it results in serious
bodily injury. It is a defense that the accused person, in the legitimate practice

of his religious belief, provided treatment by spiritual means through prayer, in

lieu of medical care, to his dependent.
7

The Indiana Code defines "person,"8 "dependent,"9 "support,"10 "knowingly," 11

"intentionally,"
12
"confine,"

13
and "serious bodily injury,"

14
while the Indiana courts have

defined other terms used in this statute. The word "cruelly," used to describe a

confinement, requires that the confinement "is likely to result in a harm such as

enter judgment of conviction of a Class A misdemeanor and sentence accordingly.

Id. ("A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one

(1) year; in addition, he may be fined not more than five thousand dollars ($5000)." Ind. Code § 35-50-3-2

(1993).).

6. Ind. Code § 35-46- 1 -4(a) ( 1 993).

7. Id.

8. "'Person' means a human being, corporation, limited liability company, partnership, unincorporated

association, or governmental entity." IND. CODE § 35-41-1-22 (1993).

9. Ind. Code § 35-46-1-1 (1993); see infra text accompanying notes 34-41.

10. "'Support' means food, clothing, shelter, or medical care." IND. CODE § 35-46-1-1 (1993).

11. "A person engages in conduct 'knowingly' if, when he engages in the conduct, he is aware of a high

probability that he is doing so." IND. CODE § 35-41-2-2(b) (1993).

1 2. "A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious

objective to do so." IND. CODE § 35-41-2-2(a) (1993).

13. "As used in [the Kidnapping and Confinement] chapter, 'confine' means to substantially interfere

with the liberty of a person." Ind. CODE § 35-42-3-1 (1993).

14. '"Serious bodily injury' means bodily injury that creates a substantial risk of death or that causes

serious permanent disfigurement, unconsciousness, extreme pain, or permanent or protracted loss or impairment

of the function of a bodily member or organ." Ind. CODE § 35-41-1-25 (1993).



1 995] NEGLECT OF A DEPENDENT 449

disfigurement, mental distress, extreme pain or hurt, or gross degradation, and yet does

not necessarily endanger the dependent's life or health."
15

"Whether the confinement is

'cruel' is to be determined by an objective standard, based upon the nature or extent of

the punishment. Thus, confinement which is unreasonable under the facts and

circumstances may be 'cruel' regardless of the actor's motive."16

The word "necessary," used to modify the support required for a dependent, is a

flexible and relative adjective ranging "from mere convenience to that which is

indispensable."
17

In the neglect of a dependent context, one court, over dissent, applied

the term's plain and ordinary meaning to conclude that "necessary support is essential,

indispensable or absolutely required food, clothing, shelter, and medical care; i.e., food,

clothing, shelter, and medical care without which the dependent's life or health is at risk

or endangered."
18

This definition causes subsection (1) of the Neglect of a Dependent

Statute to overlap subsection (3), but does not render subsection (1) superfluous.
19

Subsection (3) uses the verb "deprives," which "is used to describe the conduct of taking

away, removing, or divesting."
20

Subsection (1) uses the verb "places," which usually

describes "the conduct of putting something in a particular position."
21

This court, over

dissent, applied the subsection (1) standard to subsection (3) and concluded that

malnutrition, by itself, is not enough to support a conviction under the Neglect of a

Dependent Statute.
22

"[TJhere is a critical difference between malnutrition in the sense

ofpoor nutrition and malnutrition which endangers or places at risk a dependent's health

or life."
23

In the 1985 case ofState v. Downey, the Indiana Supreme Court held in a unanimous

decision that, construed literally, the Neglect of a Dependent Statute is unconstitutionally

broad and vague.
24

The "major part" of the vagueness in the statute is caused by the

"double contingency factored into the definition of the crime by the phrase 'may

endanger.'"
25 The court saved the statute from nullification by giving it a narrowing

construction.
26

"[T]he statute is to be regarded as applying to situations that endanger the

life or health ofa dependent. The placement must itself expose the dependent to a danger

which is actual and appreciable."
27

1 5. Hartbarger v. State, 555 N.E.2d 485, 487 (Ind. Ct. App. 1 990).

16. Id.

1 7. Ricketts v. State, 598 N.E.2d 597, 600 (Ind. Ct. App. 1992) (quoting Indiana Broadcasting Corp.

v. Star Station of Ind., 388 N.E.2d 568, 573 (Ind. Ct. App. 1979)).

18. Id.

19. Id. at 600.

20. Id. at 600-01.

21

.

Id. at 600; but see infra text accompanying notes 58-59.

22. Ricketts, 598 N.E.2d at 601

.

23. Id.

24. State v. Downey, 476 N.E.2d 1 2 1 (Ind. 1 985).

25. Id. at 123.

26. Id.

27. Id.



450 INDIANA LAW REVIEW [Vol. 28:447

Failure to instruct the jury that the danger to the dependent must be actual and

appreciable will result in the reversal ofa conviction and a remand for retrial.28 However,

instructions containing the statute's original "may endanger" language do not erroneously
provide a jury with a lower standard ofharm than is required by the Downey decision as
long as other instructions include the Downey mandate that the State must prove that the
defendant placed the dependant in a situation that actually and appreciably endangered

the life of the dependant.
29

"Jury instructions must be construed as a whole, and if when
so considered, they state the law fully and correctly, they are not erroneous."

30
The State

has the burden ofproving that the dependent's life is in actual and appreciable danger.
31

The purpose of the Neglect of a Dependent Statute is to "authorize the intervention

of the police power to prevent harmful consequences and injury to dependents. . . . Law
enforcement officials need not await loss of life, limb or property, but may intervene
where conduct is sufficient to warrant belief that such an ultimate harmful consequence

will ensue."
32 The goal of the statute is the protection of children.33

I. Uses

A. Who Can Be a Dependent?

A significant aspect of Indiana's statute is that it is a neglect of a "dependent" statute,
not a "child" neglect statute.

34
"Dependent" is statutorily defined as: "(1) an

unemancipated person who is under eighteen (18) years of age; or (2) a person ofany age
who is mentally or physically disabled."35 In addition to the majority of cases where the
defendant is responsible for an unemancipated child under the age of eighteen, the statute

has also been used against those who are responsible for the care of the mentally
disabled

36
and the physically disabled.

37 Many dependents are both physically and
mentally disabled.

38 The disability may be a result of old age,39 but not necessarily so.40

28. McCullough v. State, 608 N.E.2d 1 009, 1010 (Ind. App. 1 993).

29. White v. State, 547 N.E.2d 83 1 , 835 (Ind. 1 989); Indiana Judges Ass'n, Indiana Pattern Jury

Instructions: Criminal, Instruction No. 7.09 (2d ed. 1991).

30. White, 547 N.E.2d at 835.

3 1

.

Dayton v. State, 501 N.E.2d 482, 484 (Ind. Ct. App. 1986).

32. Downey, 476 N.E.2d at 123.

33. Ware v. State, 441 N.E.2d 20, 23 (Ind. Ct. App. 1982).

34. But cf. Carolyn M. Trier, Note, Indiana 's Criminal Treatment ofAbusive Parents: Problems in Need

ofSolutions, 24 Val. U. L. Rev. 553, 557-64 (1990) (refers to the statute as "The Child Neglect Statute").

35. Ind. Code § 35-46-1-1 (1993).

36. See, e.g., Lomax v. State, 510 N.E.2d 215 (Ind. Ct. App. 1987) (appellant placed her mentally

disabled, adult son in conditions that constituted a health hazard); Parrish v. State, 459 N.E.2d 391 (Ind. Ct. App.

1 984) (appellants confined 80-year-old man because they believed he was crazy).

37. See, e.g., Bean v. State, 460 N.E.2d 936 (Ind. 1984) (appellants beat adult dependent who was

microcephalic, frail, and mildly retarded); Klagiss v. State, 585 N.E.2d 674 (Ind. Ct. App. 1992) (appellant

convicted after death of his 80-year-old mother).

38. See, e.g., Bean, 460 N.E.2d at 936; Kerlin v. State, 573 N.E.2d 445 (Ind. Ct. App. 1991).

39. See, e.g., Klagiss, 585 N.E.2d at 674; Kerlin, 573 N.E.2d at 445; Parrish, 459 N.E.2d at 391

.

40. See, e.g., Bean, 460 N.E.2d at 936; Lomax, 510 N.E.2d at 215.



1 995] NEGLECT OF A DEPENDENT 45

1

Additionally, there is no requirement that the person be adjudicated a dependent in order

to apply the statute.
41

B. Who Can Be a Defendant?

While most defendants in a neglect of a dependent case are the parents of the

dependent, the statute clearly states that the person charged does not have to be under any

legal obligation to care for the dependent, but may be one who assumes responsibility
voluntarily.

42 The responsibility does not have to be assumed with the authority or

permission of the one who has the legal obligation.43 Consequently, the statute has been
used against a stepfather,

44
a mother's boyfriend,

45
a father's roommate,

46
and a guardian's

husband.
47 The statute has also been used to bring charges against an intermediate care

facility,
48

the corporation that owns an intermediate care facility,49 the employees of an

immediate care facility,
50

the medical director of a health care facility,
51

and the

administrator of a health care facility.
52

All of these defendants were found to have

assumed responsibility for the care of a dependent and then either inflicted injury on or

failed to provide adequate care for that dependent.

C. Is There an Act Requirement?

While most charges of neglect of a dependent are against a defendant who acts in a
way that injures the dependent, action is not required by the statute. Subsections (3) and

(4) of the statute define violations in terms of "depriving" the dependent of "necessary

support"
53
and of "education as required by law."

54
Failure to provide a dependent with

adequate or prompt medical care has been classified as depriving the dependent of

41

.

State v. Springer, 585 N.E.2d 27, 29-30 (Ind. Ct. App. 1992) (quoting Bean, 460 N.E.2d at 942).

42. Ind. Code § 35-46-1 -4(a) (1993).

43. Dowler v. State, 547 N.E.2d 1 069, 1 072 (Ind. 1 989).

44. Shoup v. State, 570 N.E.2d 1298, 1303-04 (Ind. Ct. App. 1991).

45. Wilson v. State, 525 N.E.2d 619, 625 (Ind. Ct. App. 1988).

46. Dowler, 547 N.E.2d at 1 07 1 -72.

47. Bean v. State, 460 N.E.2d 936, 942 (Ind. 1 984).

48. State v. Monticello Developers, Inc., 502 N.E.2d 927 (Ind. Ct. App. 1987), vacated, 527 N.E.2d

1 1 1 (Ind. 1988) (intermediate care facility for the mentally retarded and the developmentally disabled was

charged with neglect of a dependent when a retarded resident was burned when left unattended in a bathtub

filled with hot water).

49. Id. at 932 (corporation charged using an agency relationship theory when the offense was

committed by the corporation's agent acting within the scope of the agent's authority).

50. Id. at 929.

51. Kerlin v. State, 573 N.E.2d 445, 446-47 (Ind. Ct. App. 1991) (appellant served as a medical

consultant to a nursing home, provided medical care to each of the patients at least once a month, and was

charged when two patients had to be hospitalized when they did not recover from problems for which appellant

had administered treatment); see infra text accompanying notes 66-69.

52. State v. Springer, 585 N.E.2d 29 (Ind. Ct. App. 1992) (this charge is based on the same facts that

lead to the charge in Kerlin, a companion case); see infra text accompanying notes 70-73.

53. Ind. Code § 35-46- l-4-(a)(3) (1993).

54. Ind. Code § 35-46-l-4-(a)(4) (1993).



452 INDIANA LAW REVIEW [Vol. 28:447

necessary support
55

and also as "placing" the dependent in a situation of actual and

appreciable danger under subsection (l).
56

While seemingly requiring an act, subsection

(l)
57
has been interpreted to encompass inactions as well as positive actions. An example

of inaction that a court interpreted as a placement occurred when a parent allowed a child

to remain in a living arrangement knowing that the child was being abused and did

nothing to prevent the abuse.
58

This placement, whether from an act or an inaction, need

not be for any specific length of time.
59

It could be a continuous dangerous condition, a

pattern of abuses over a long period of time, or a one-time situation of very brief

duration.
60

But the situation, at a minimum, must place the dependent's life or health at

risk or in danger.
61

There is a limit, however, as to how far a court will go in finding a voluntary
assumption of the care of a dependent and in allowing a conviction for failing to act. In

Fisher v. State,
62

a defendant allowed a custodial parent and that custodial parent's

dependent to move into the defendant's home, knowing that the custodial parent was
physically abusing the dependent. The court found the defendant not guilty of neglect of

a dependent even though the defendant did not report the abuse. While such a defendant

could be found to have voluntarily assumed the care of the dependent by providing a

home, food, and services, and the child could also be found to have been in a dangerous

situation by living with an abusive parent, the Fisher court concluded that the defendant

had not "placed" the dependent in that dangerous situation.
63 The defendant did not have

the authority to separate the parent from the dependent, so the only alternative was to

report the abuse. The court held that failure to report the abuse in this case was not

enough to establish that the defendant knowingly or intentionally "placed" the defendant

in a dangerous situation as required by the Neglect of a Dependent Statute.
64

The Fisher circumstances are very different from the situation where the parent

moves into the home of a person who then abuses the child and the parent does nothing.
Since the parent has the legal care of the dependent, failure to act constitutes neglect.

65

In a contrasting case, however, the court in Kerlin v. State went quite far in applying

the Neglect of a Dependent Statute to a physician who allegedly was negligent in
providing care for elderly patients who lived in a health care facility.66 The physician was

55. See, e.g., Hall v. State, 493 N.E.2d 433, 436 (Ind. 1986); Ricketts v. State, 598 N.E.2d 597, 601

(Ind. Ct. App. 1992).

56. See, e.g., Hall, 493 N.E.2d at 436; Kerlin v. State, 573 N.E.2d 445, 448 (Ind. Ct. App. 1991);

Johnson v. State, 555 N.E.2d 1362, 1366 (Ind. Ct. App. 1990); Lomax v. State, 510 N.E.2d 215, 219-20 (Ind.

Ct. App. 1987); Dayton v. State, 501 N.E.2d 482, 483-84 (Ind. Ct. App. 1986).

57. Ind. Code § 35-46-l-4-(a)(l) (1993).

58. Wilson v. State, 525 N.E.2d 619, 623 (Ind. Ct. App. 1988).

59. Lomax, 510N.E.2d at 220.

60. Wilson, 525 N.E.2d at 624.

61. Mat 625.
62. 548 N.E.2d 1 177 (Ind. Ct. App. 1990).

63. Id. at 1179.

64. Mat 1179-80.
65. Wilson, 525 N.E.2d at 623.

66. Kerlin v. State, 573 N.E.2d at 445 (Ind. Ct. App. 1991). Charges of neglect of a dependent were



1 995] NEGLECT OF A DEPENDENT 453

the medical director at a nursing home and provided medical care to each of the patients
at least once a month. The two indictments alleged that the physician was negligent when
one patient died from gangrene after the physician had been consulted and another was
hospitalized for treatment ofa chronic eye infection and toe infection two weeks after the

physician had treated the patient. There is no question that these elderly patients were

physically disabled and thus dependents, but the court took a large step in saying that they

were the medical director's dependents.
67

In contrast to cases where a defendant was charged with neglect for failing to seek

medical treatment for dependents who were in need,68 the physician in Kerlin did provide
medical care for the patients. He correctly diagnosed their conditions and ordered
appropriate treatment for them, relying on the nursing home staff to carry out the
treatment and monitor the situations. In regard to the patient suffering from gangrene, the

physician saw the patient on several occasions and transferred her to the more intensive

care ofa hospital and other physicians when he thought it was necessary. The patient then

died after the family chose not to amputate the gangrenous limb. As for the other patient,

the treatment did not cure the problem, but the chronic eye infection required further

attention, and the toe infection was at least partially a result of the patient's own
behavior.

69 The physician was not responsible for the conditions suffered by either of

these patients. The nursing home staff and the families had more contact with these
patients than the physician. Although, the physician treated the patients appropriately and

then transferred them to the hospital for more help when they did not respond to the

treatment, he was still charged with neglect of a dependent.

The facts of the Kerlin case even resulted in charges being brought against the

administrator of the health care facility in State v. Springer™ The Springer court

concluded that determining whether the patients at the facility were the administrator's

"dependents" is a fact question for the jury.
71 Even though the administrator employed

a medical director who was responsible for providing medical care to each of the patients

at the facility, the possibility still existed that the administrator might be found guilty of

neglect of a dependent if the medical director did not provide adequate care.
72

Additionally, although other statutes are specifically directed to the protection of adults

in residential health care facilities, the Neglect of a Dependent Statute can nonetheless be

applied.
73

The Kerlin and Springer courts conflict with the Fisher court in their application of

the neglect statute. While the Kerlin and Springer courts were liberal in applying the

also found applicable to the administrator of this health care facility in the case of the dependent who had a

chronic eye infection and infected toes. State v. Springer, 585 N.E.2d 27 (Ind. Ct. App. 1992); see infra text

accompanying notes 70-73.

67. Kerlin, 573 N.E.2d at 450-5 1 (Baker, J., dissenting).

68. See, e.g., Davis v. State, 476 N.E.2d 127 (Ind. Ct. App. 1985); see supra notes 55-56 and

accompanying text.

69. Kerlin, 573 N.E.2d at 45 1-52.

70. Springer, 585 N.E.2d at 27.

71. Mat 30.
72. Mat 31.
73. Id. at 30.



454 INDIANA LAW REVIEW [Vol. 28:447

statute to someone who had little contact with the victim and was acting to help the
victim, the Fisher court refused to apply the statute to someone who knew of abuse and
voluntarily provided care for the dependent, but did nothing to help. While the question

of whether a victim is the defendant's "dependent" is a fact question for the jury,
74

this

divergent application of the Neglect of a Dependent Statute demonstrates a lack of clarity

in how the statute is to be applied.

D. Is There an Injury Requirement or Limitation?

According to the statute, the defendant does not have to actually injure the dependent

to be convicted, just "place[] the dependent in a situation that may endanger his life or
health."

75
This has been interpreted to mean "expose the dependent to a danger which is

actual and appreciable."
76

While most cases do involve injuries to the dependent,

defendants have been convicted when no actual injuries to the dependent occurred.77

Bruises on a dependent's body, alone, do not constitute sufficient evidence to allow a trier

of fact to infer a situation of actual and appreciable danger.
78

If the defendant's behavior

results in a serious bodily injury
79

the offense is raised
80
from a Class D felony81 to a Class

B felony.82 The statute has been invoked not only to protect against physical injuries, but
also mental injuries.

83 The statute has also been used in situations that resulted in the

dependent's death,
84

but some opposition to this use has been expressed.85

74. Kerlin, 573 N.E.2d at 448.

75. Ind. Code § 35-46-l-4-(a)(l) (1993).

76. State v. Downey, 476 N.E.2d 121, 123 (Ind. 1985); see supra notes 24-31 and accompanying text.

77. See, e.g., Sample v. State, 601 N.E.2d 457 (Ind. Ct. App. 1992) (mother convicted for failure to

obtain prompt medical care for her four-month-old infant after the child fell and fractured her skull even though

the child's physician testified that the delay itselfdid not constitute an actual and appreciable threat to the child's

life or health); Johnson v. State, 555 N.E.2d 1362 (Ind. Ct. App. 1990) (mother convicted when she delayed

obtaining medical care for her burned seventeen-month-old infant because there was a risk of severe infection

even though the delay did not actually cause any harm).

78. Dayton v. State, 501 N.E.2d 482, 484 (Ind. Ct. App. 1986).

79. "Serious bodily injury" is defined by Ind. CODE § 35-41-1-25 (1993); see supra note 14.

80. Ind. Code § 35-46-1 -4(a) (1993).

8 1

.

Ind. Code 35-50-2-7 ( 1 993); see supra note 5.

82. Ind. Code § 35-50-2-5 (1993) provides:

A person who commits a Class B felony shall be imprisoned for a fixed term often (10) years, with

not more than ten (10) years added for aggravating circumstances or not more than four (4) years

subtracted for mitigating circumstances; in addition, he may be fined not more than ten thousand

dollars ($10,000).

Id.

83. See, e.g., DeMontigney v. State, 593 N.E.2d 1270, 1272 (Ind. Ct. App. 1992); Riffel v. State, 549

N.E.2d 1084, 1088 (Ind. Ct. App. 1990).

84. See, e.g., Lamphier v. State, 534 N.E.2d 699 (Ind. 1989); McClaskey v. State, 540 N.E.2d 41 (Ind.

1989); Strong v. State, 538 N.E.2d 924 (Ind. 1989); Hall v. State, 493 N.E.2d 433 (Ind. 1986); Bean v. State,

460 N.E.2d 936, 942-43 (Ind. 1984); Shipley v. State, 620 N.E.2d 710 (Ind. Ct. App. 1993); Mallory v. State,

563 N.E.2d 640, 643-44 (Ind. Ct. App. 1990); Gasaway v. State, 547 N.E.2d 898 (Ind. Ct. App. 1989); Hill v.

State, 535 N.E.2d 153, 155-56 (Ind. Ct. App. 1989).



1 995] NEGLECT OF A DEPENDENT 455

II. Abuses

A. The Double Jeopardy Problem

When a dependent dies as a result of neglect, the defendant is often charged with a
voluntary or involuntary manslaughter, reckless homicide, or murder offense along with

a charge ofneglect ofa dependent resulting in serious bodily injury.
86 A double jeopardy

issue arises when the defendant is convicted of both charges. The issue also arises in
cases where the defendant is charged with both battery and neglect of a dependent

87
and,

in cases like State v. George™ where the defendant is charged with both operating a
motor vehicle while intoxicated and with neglect of a dependent because the dependent

was in the car at the time.89 Different tests are used to determine if the two offenses in

these situations are separate, punishable offenses, or if the neglect charge is a lesser

included offense so that punishment for both would be double jeopardy.

Double jeopardy is barred by both the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution90 and by Article 1, Section 14 ofthe Indiana
Constitution.

91 The Double Jeopardy Clause ofthe Fifth Amendment to the United States
Constitution applies to the states through the Fourteenth Amendment.92 "[T]he Fifth

Amendment guarantee against doublejeopardy . . . protects against multiple punishments

for the same offense."
93

"[WJhere the same act or transaction constitutes a violation of

two distinct statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof ofan additional fact which

the other does not."
94

This is known as the Blockburger test.

"While the Indiana decisions appear to generally follow Blockburger it is clear that

through its own constitutional provision against double jeopardy Indiana may provide its
citizens more rights than those guaranteed federally."95 When applying the test in Indiana,

85. See, e.g., Lamphier, 534 N.E.2d at 701 (Shepard, C.J., concurring and dissenting) (Legislative

revision of the statute defining "serious bodily injury" to omit actions that resulted in death shows legislative

intent to exclude such situations from the statute. The neglect statute is not intended to cover situations in which

the victim dies.); McClaskey, 540 N.E.2d at 45 (Shepard, C.J., concurring) (Situations in which the dependent

dies should be treated as homicides and not as matters of neglect.).

86. See, e.g., Lamphier, 534 N.E.2d 699 (Ind. 1989); McClaskey, 540 N.E.2d 41 (Ind. 1989); Strong,

538 N.E.2d 924 (Ind. 1989); Hall, 493 N.E.2d 433 (Ind. 1986); Bean, 460 N.E.2d 936 (Ind. 1984); Shipley, 620

N.E.2d 710 (Ind. Ct. App. 1993); Gasaway, 547 N.E.2d 898 (Ind. Ct. App. 1989).

87. Christie v. State, 536 N.E.2d 53 1 (Ind. Ct. App. 1 989).

88. See supra notes 1 -5 and accompanying text.

89. See, e.g., State v. Kellogg, Trial No. 30D02-9207-CF0003 1 (Hancock County, Superior Court,

Criminal Division 2, tried June 17-18, 1993); State v. Kincaid, Trial No. 06D02-9303-CF124 (Boone County,

Superior Court, Criminal Division 2, tried Jan. 4, 1994).

90. Smith v. State, 408 N.E.2d 6 1 4, 622 (Ind. Ct. App. 1 980).

9 1

.

Christie, 536 N.E.2d at 532.

92. Benton v. Maryland, 395 U.S. 784, 794 (U.S. 1 969).

93. North Carolina v. Pearce, 395 U.S. 711, 717 (U.S. 1969).

94. Blockburger v. United States, 284 U.S. 299, 304 (U.S. 1932) (citations omitted).

95. Hall v. State, 487 N.E.2d 181, 182 (Ind. Ct. App. 1986) (Garrard, J., dissenting from denial of

petition for rehearing [citations omitted]).



456 INDIANA LAW REVIEW [Vol. 28:447

the "double jeopardy analysis does not end with an evaluation and comparison of the

statutory provisions. The factual bases alleged by the State in the information or

indictment and upon which the charges are predicated must also be examined."96 If the

State alleges the same facts for two separate charges, then punishment for both crimes is

barred, but if the charges are not facially duplicative, then the defendant can be punished

for the "two separate, independent and distinct criminal offenses."
97

While Indiana courts are bound by the Indiana Supreme Court's interpretation of the

Double Jeopardy Clause under the Indiana Constitution,
98

the Indiana Supreme Court has

not had the opportunity for such an interpretation since the latest developments from the

United States Supreme Court. In addition to the Blockburger "same facts" test, a "same

conduct" test
99
has been used, but is now disfavored. 100

In George and other recent cases with similar charges, Indiana case law indicates that

convictions for operating a motor vehicle while intoxicated and for neglect of a dependent

could not both stand. Since "both charges are based on the same acts occurring over the

same time period[,] . . . convictions for both offenses cannot stand because one offense

was the instrument by which the other was committed."
101 "When the same act constitutes

two separate crimes, the very essence ofdouble jeopardy principles prevents two separate

convictions."
102

This argument is being made in a case similar to George which is

currently before the Indiana Court of Appeals.
103

While this is a "same conduct" argument, the factual charges in the information or

indictment would be different in a "same facts" argument. The charge of operating a

vehicle while intoxicated would only have to allege that the defendant operated a vehicle

with at least 0.10 percent by weight of alcohol in that defendant's blood.
104 A neglect of

a dependent charge would also have to allege the additional facts that the defendant had

the legal care of a dependent and knowingly or intentionally placed that dependent in a

dangerous situation.
105

This is a good argument that the neglect charge "requires proof

of additional fact[s] which the other [charge] does not."
106

However, when interpreting

the double jeopardy issue in a case with similar charges, the Indiana Supreme Court

concluded that the same act had to be proven for both charges, so "no additional facts

were necessary to prove the perpetration of either of these two offenses."
107

96. Hall, 493 N.E.2d at 435.

97. Christie v. State, 536 N.E.2d 531,533 (Ind. Ct. App. 1 99 1 ).

98. Shipley v. State, 620 N.E.2d 710, 717 (Ind. Ct. App. 1993).

99. Grady v. Corbin, 495 U.S. 508 (U.S. 1 990); see supra text accompanying note 94.

100. United States v. Dixon, 1 13 S.Ct. 2849 (U.S. 1993).

101. Shipley, 620 N.E.2d at 7 1 7.

102. Id.

103. Appellant's Brief at 8-9, Kellogg v. State, No. 30A01-9310-CR-337 (Ind. Ct. App. filed Dec. 15,

1993).

1 04. Ind. Code § 9-30-5- 1 ( 1 993).

105. Ind. Code § 35-46-l-4(a) (1993); see supra text accompanying notes 42-43, and 55-61 ; see infra

text accompanying notes 114-119.

1 06. See supra text accompanying notes 94-97.

107. Hall v. State, 493 N.E.2d 433, 436 (Ind. 1986) (quoting Howard v. State, 481 N.E.2d 1315, 1318

(Ind. 1985)) (neglect of a dependent charge and reckless homicide charge were both based on the parents' same



1 995] NEGLECT OF A DEPENDENT 457

To remain consistent, the Indiana Supreme Court would also have to say that
convictions of operating a vehicle while intoxicated and neglect of a dependent who was
in the car at the time both "could not stand, for one is the instrumentality by which the

other was committed."
108 Under these circumstances, "the former would be a lesser

included offense which would merge with the greater offense."
109

In fact, the Indiana

Supreme Court gave the example of a drunk driver who kills a pedestrian and is convicted
for both driving while intoxicated

110
and for driving while intoxicated, resulting in the

death of another person
111

as an example oftwo convictions that could not both stand. 112

Similarly, convictions for driving while intoxicated, and for driving while intoxicated

resulting in the endangerment of a dependent, arising out of the same act, cannot both

stand.

B. The Intent Problem

Another area that has caused confusion in applying the Neglect of a Dependent

Statute is the question of what culpability standard to apply. An objective standard is an
external standard of conduct that the community demands, while a subjective standard is

based on the individual judgment or perceptions of the particular actor.
113

The Neglect

of a Dependent Statute says that the behavior must be done "knowingly or

intentionally."
114 "A person engages in conduct 'intentionally' if, when he engages in the

conduct, it is his conscious objective to do so."
115 "A person engages in conduct

'knowingly' if, when he engages in the conduct, he is aware of a high probability that he

is doing so."
116 When a statute specifies a particular kind of culpability, it is required as

to all material elements of the offense, unless the statute specifies otherwise.
117

The correct interpretation of this culpability statute is that it mandates a subjective

intent standard.
118

"[T]he accused must have been subjectively aware of a high

probability that he placed the dependent in a dangerous situation."
119

While seemingly

a clear interpretation of the culpability statute, not all courts have followed it when

applying the Neglect of a Dependent Statute.

act of failure to provide medical treatment for their son).

108. Id.

109. Id.

110. Ind. Code Ann. §9-11 -2-2 (Burns Supp. 1985).

111. Ind. Code Ann. §9-11-2-5 (Bums Supp. 1985).

112. Hall, 493 N.E.2d at 436.

113. See, e.g., W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 32, at 1 73-74

(5th ed. 1984); Ware v. State, 441 N.E.2d 20, 21 (Ind. Ct. App. 1982).

1 14. Ind. Code § 35-46-1 -4(a) (1993).

115. Ind. Code § 35-41-2-2(a) (1993).

1 16. Ind. Code § 35-41-2-2(b) (1993).

117. See, e.g., Ind. CODE § 35-41-2-2(d) (1993); Williford v. State, 577 N.E.2d 963 (Ind. 1991)

(DeBruler, J., dissenting to denial of transfer).

118. Armour v. State, 479 N.E.2d 1294, 1297 (Ind. 1985).

119. Id.



458 INDIANA LAW REVIEW [Vol. 28:447

The problems started with a 1980 case, Smith v. State™ in which the appellant
claimed that the State had failed to prove the requisite intent element. While discussing

the intent requirement under the current Neglect of a Dependent Statute, the Smith court

quoted a 1977 decision, Hunter v. State™ which upheld the conviction of the appellants

under an old statute prohibiting cruelty and neglect of children.
122

That statute was

repealed by the 1976 enactment of the current chapter on Offenses Against the Family,
123

which took effect July 1, 1977.
124

The Hunter opinion, in turn, concluded that the intent

requirement ofthe old cruelty and neglect ofchildren statute had, in effect, been removed

by a 1967 Indiana Supreme Court decision, Eaglen v. State,
ns

which found the defendant

guilty under the child neglect statutes.
126

The Eaglen court decided that "neglect" was to

be defined using an objective, "reasonable parent" standard and that even if the defendant

"had no actual knowledge that his child was extremely ill, since he could easily have

become aware of that fact had he exercised his statutory duty," then the lack of actual

knowledge provided the defendant with no defense.
127

The old neglect of child statute said:

Neglect of a child shall consist in any of the following acts, by anyone having

the custody or control of the child;

(a) wilfully failing to provide proper and sufficient food, clothing, maintenance,

regular school education as required by law, medical attendance or surgical

treatment, and a clean and proper home, or (b) failure to do or permit to be done

any act necessary for the child's physical or moral well-being . . . .
128

When the defendant claimed he did not know or could not tell that his child was sick, the
Court responded by citing a 1914 English case, Oakey v. Jackson,

129
that construed a

similar English statute. That English statute said:

If any person over the age of sixteen years, who has the custody, charge, or care
of any child or young person, wilfully . . . neglects . . . such child or young

120. 408 N.E.2d 614 (Ind. Ct. App. 1980), overruled by Armour v. State, 479 N.E.2d 1294 (Ind. 1985).

121. 360 N.E.2d 588 (Ind. App. 1 977).

122. Id. at 605; Ind. Code Ann. § 35-14-1-4 (Burns 1971).

123. Ind. Code § 35-46-1 (1988 & Supp. 1992).
1 24. Act of Feb. 25, 1 976, Pub. L. No. 1 48, 1 976 Ind. Acts 7 1 8 (codified as amended at Ind. Code § 35-

46-1 (1993)).

125. 231 N.E.2d 147 (Ind. 1967); Hunter, 360 N.E.2d at 604.

1 26. Eaglen, 23 1 N.E.2d at 1 5 1 . See Ind. CODE Ann. §§ 1 0-8 1 3 to 1 0-8 1 5 (Burns 1 956) (This section

was carried forward into the new Indiana Code of 1971 as §§ 35-14-1-2 to 4. Section 10-815, the penalty

section of the cruelty and neglect of children statutes, became § 35-14-1-4. Cruelty and neglect of child is

defined in § 10-813 which was carried forward as § 35- 1 4- 1 -2. So the Eaglen and Hunter courts were using the

same statutes which were in different versions ofthe Code. The only changes made to the statutes between these

two cases was in the penalty provisions. But the current Neglect ofa Dependent Statute is a completely different

statute.).

127. Eaglen, 23 1 N.E.2d at 1 50.

128. Ind. Code Ann. § 10-813 (Burns 1956).

129. [1914] 1K.B. 216 (Eng.).



1 995] NEGLECT OF A DEPENDENT 459

person, or causes or procures such child or young person to be . . . neglected .

.

. in a manner likely to cause such child or young person unnecessary suffering

or injury to his health (including injury to or loss of sight, or hearing, or limb, or

organ of the body, and any mental derangement), that person shall be guilty of

a misdemeanor, . . . and for the purposes of this section a parent or other person

legally liable to maintain a child or young person shall be deemed to have

neglected him in a manner likely to cause injury to his health if he fails to

provide adequate food, clothing, medical aid, or lodging for the child or young

person, or if, being unable otherwise to provide such food, clothing, medical aid,

or lodging, he fails to take steps to procure the same to be provided under the

Acts relating to the relief of the poor.
130

But the question before the English judges was not whether the parent had the

requisite state of mind to "wilfully" neglect the child. The question was whether the

refusal to allow an operation constituted a failure to provide adequate medical care.
131

The court concluded that this was a question of fact to be decided at the trial level. 132 To

give the trial court guidance, the court quoted the common law definition of "wilful
neglect." The Smith court and the Eaglen court both quoted part of the Oakey court's

definition of "neglect," which is "the want of reasonable care—that is, the omission of
such steps as a reasonable parent would take, such as are usually taken in the ordinary

experience ofmankind."
133

This is an objective standard which is to be used to determine

if the parent had a duty to act.

However, this definition is not to be used to determine the culpability standard

necessary for a conviction under the statute. Its sole use is to determine whether the

parent had a duty to act. If no duty exists, then there can be no conviction, regardless of

what action the parent takes. If it is determined that a duty does exist, using this objective

standard, then the parent can only be found guilty if the trier finds that the parent

"wilfully" neglected to take action.
134

Both the Eaglen and the Smith courts failed to utilize the English court's definition

of "wilfully." The Oakey court defined "willfully" to mean "that the act is done

deliberately and intentionally, not by accident or inadvertence, but so that the mind ofthe

person goes with it."
135

This is a subjective standard that is to be applied to the mental

element of the crime. Additionally, the rest of the court's definition of "neglect," which

both the Eaglen and the Smith courts failed to quote is: "that is, in such a case as the

present, provided the parent had such means as would enable him to take the necessary

steps."
136

This further contemplates the idea ofa conscious, subjective choice on the part

of the parent. In determining the objective standard to which a person must subjectively

130. The Children Act, 1908, 8 Edw. 7, c. 67, § 12, (Eng.).

131. Oakey, [1914] 1 K.B. at 220.

132. Id.

133. Id. at 219.

1 34. See Ind. Code Ann. § 1 0-8 1 3 (Bums 1 956).

135. Oakey, [1914] 1 K.B. at 219.

136. Id. at 219-20.



460 INDIANA LAW REVIEW [Vol. 28:447

choose to adhere to avoid conviction under this statute, it must be a choice that is

available for the reasonable parent to make.

The Eaglen court concluded that even assuming the parent did not know the child
was ill, "since he could easily have become aware of that fact had he exercised his

statutory duty, such a contention provide[d] appellant no defense."
137

The court reasoned

that it had a duty to "enforce the minimum standards of parental knowledge and conduct
clearly and definitely delineated by our child-neglect statutes."

138
This is an objective

standard that the Indiana Supreme Court decided should be used in construing the old

neglect of child statute. The Hunter court summarized the Eaglen court's decision

regarding the intent element by saying that it "in effect removes the requirement of

intent."
139

This reinforces the use of an objective standard in construing the old statute.

The end result is that in construing the culpability standard required to convict a

defendant under Indiana's new Neglect of a Dependent Statute, the Smith court
erroneously relied on a 1914 English court's interpretation of the standard to be used to

determine whether a person has a duty to seek care for a child under a 1908 English

statute that was very similar to Indiana's old neglect of child statute, which was repealed,

effective July 1, 1977.
140

Indiana courts have interpreted this 1914 English opinion as

meaning that when deciding whether a person has wilfully neglected a child, they are to

do so using an objective standard. The courts reached this conclusion without mentioning

the English court's definition of"wilfully." The Smith court incorporated these cases into

its decision construing the new Neglect of a Dependent Statute without mentioning the

statute that defines culpability terms,
141

which was enacted in 1976 as part of the same Act

that also included the new Neglect of a Dependent Statute. Additionally, the old neglect

of child statute and the English Children Act both used the word "wilfully," while the new

Neglect of a Dependent Statute uses the terms "knowingly or intentionally."

As the Smith court correctly stated, the situation is different when the "offense grows

out of the nonperformance of an affirmative duty imposed by law for the care and

protection of a [dependent]."
142 When the defendant does a positive act that violates the

statute, the State must then prove: (1) the defendant knowingly or intentionally, (2) did

the act that violates the statute, and (3) that the defendant had the care of the dependent,

whether assumed voluntarily or because of a legal obligation.
143

But when the offense

rises out of inaction, the Smith court was nearly accurate, despite the misleading

discussion that led to its conclusion that "the words 'knowingly' or 'intentionally' require

the State only to prove that the defendant parent was aware of facts that would alert a

reasonable parent under the circumstances to take affirmative action to protect the

child."
144

While citing the Eaglen case, which held that knowledge was not necessary for

1 37. Eaglen, 23 1 N.E.2d at 1 50.

138. Id.

1 39. Hunter, 360 N.E.2d at 604.

140. Ind. Code Ann. § 35-14-1-2 (Burns 1973 & Supp. 1976).
141. Ind. CODE §35-41-2-2 (1993).

1 42. Smith v. State, 408 N.E.2d 6 1 4, 62 1 (Ind. Ct. App. 1 980).

143. See, e.g., Ind. Code § 35-46-l-4(a) (1993); Indiana Judges Ass'n, Indiana Pattern Jury

Instructions: Criminal, Instruction No. 7.09 (2d ed. 1991).

144. Sm///i,408N.E.2dat621.



1 995] NEGLECT OF A DEPENDENT 46

1

a conviction, the Smith court concluded that use of the words "knowingly and

intentionally" in the new statute did require knowledge on the part of the defendant for
a conviction.

This is a modification of the objective standard because it does require the

defendant's awareness of the facts. A "pure" objective standard would only require that
the defendant be in a situation that a "reasonable" person would realize required

affirmative action to protect their dependent. By requiring an awareness of the facts, the
Smith court's interpretation would excuse a defendant who did not perceive the
surrounding circumstances, either due to a lack of ability to perceive or due to a lack of

attentiveness. But this is insufficient for the subjective standard required by the statute.

A jury may infer that a person intends the natural and probable consequences of his
voluntary acts.

145
Knowledge or intent is a mental function and, absent an admission, can

be inferred from an examination of the facts and circumstances.
146

Therefore, the Smith

court's interpretation would be an accurate statement of the law if the State also proved

that the defendant was, in fact, a reasonable parent. The culpability statute requires, at a

minimum, that upon acting, the accused was "aware of a high probability that he [was]

doing so."
147

Ifthe State only proved that the accused "was aware of facts that would alert

a reasonable parent under the circumstances to take affirmative action to protect the

child,"
148

then the possibility exists that the accused was not a reasonable parent. The

accused might have been aware of the facts without realizing that such facts constituted

a duty to take affirmative action. Failure to take affirmative action under such

circumstances would not violate the statute as it would not be a "knowing" decision.

The Smith court further defends its position by reasoning

that there is little essential difference in the expressed purpose of child protection

between [the old] and the present statutes .... The affirmative duty of a parent

to care for and protect his child, the rationale therefore, and the standard of care

imposed thereby as expressed in Eaglen and Hunter, are equally applicable to

the present statutes.
149

While true, this ignores the changes in the statute, most importantly, the change from

"wilfully" to "knowingly and intentionally" and the enactment ofthe statutory definitions

of those terms.

One court defended the Smith court's decision by expressing the belief that the

decision to use an objective standard was really an attempt to define the actus reus of the

statute instead of the mens rea. 150 An objective standard should be used to determine if

145. See, e.g., Sandstrom v. Montana, 442 U.S. 510 (1979) (explaining that this cannot relieve the State

of its burden of proof on an essential element of a charged crime; it can merely create a permissive inference,

not a mandatory presumption); Blackburn v. State, 519 N.E.2d 554, 556-57 (Ind. 1988).

146. See, e.g., Mitchell v. State, 557 N.E.2d 660, 664-65 (Ind. 1990); Stout v. State, 528 N.E.2d 476,

482 (Ind. 1988); Gibson v. State, 515 N.E.2d 492, 496 (Ind. 1987); Perkins v. State, 392 N.E.2d 490, 495 (Ind.

App. 1979).

1 47. Ind. Code § 35-4 1 -2-2(b) ( 1 993).

1 48. Smith, 408 N.E.2d at 62 1

.

149. Id.

1 50. McMichael v. State, 47 1 N.E.2d 726, 73 1 -32 (Ind. Ct. App. 1 985).



462 INDIANA LAW REVIEW [Vol. 28:447

an affirmative duty to take action for the care and protection of the dependent is imposed

by the law. If a subjective standard were used, a person with a very high standard who
did not act according to that standard could be convicted even when the dependent was
not really in a dangerous situation at all. At the same time, a person with a very low

standard could not be convicted when knowingly placing their dependent in a very
dangerous situation because the situation did not require action according to their low

standard.
151

Indiana appellate courts do, in fact, apply an objective standard when faced
with the issue of whether there was a duty to act.

152
But the statutes require a subjective

intent element for a conviction, which is at odds with the Smith court's statement ofwhat

the State must prove for a conviction.
153

Similarly, an objective standard should also be used to determine if a confinement is

"cruel"
154

under subsection (2)
155

of the statute and what constitutes "necessary"
156

support

under subsection (3).
157

In 1982, another Indiana appellate court was faced with the issue of whether the

proper interpretation of the word "knowingly" in the Neglect of a Dependent Statute

meant an objective standard or a subjective standard in Ware v. State} 5* The Ware court

cited a 1908 Indiana Supreme Court decision
159

that was decided prior to the passage of

the new neglect and culpability statutes in which the court stated that "the term
'knowingly' in a criminal proceeding imports that the accused person knew what he was

about, and, possessing such knowledge, proceeded to commit the crime of which he is

charged."
160

This is a subjective standard, but since the Indiana Supreme Court had not

yet interpreted this term under the new statutes, the Ware court had to decide whether to

use the objective intent standard the Indiana Supreme Court had applied to the old neglect

of child statute or use the subjective standard previously used by the courts in conjunction

with the term "knowingly" and mandated by the new culpability statute. This new

culpability statute was the "first attempt in Indiana to codify the degrees of mens rea, or

mental intent, required for the commission of crime."
161 The Ware court acknowledged

that the Smith court had determined that the statute was to be interpreted using an

objective standard, but also realized that the Smith court had failed to consider the new

151. See Hartbarger v. State, 555 N.E.2d 485 (Ind. Ct. App. 1990); see infra text accompanying notes

237-39.

152. See supra notes 133-34 and accompanying text; see infra notes 185-86, 191, and 194 and

accompanying text; cf Hartbarger, 555 N.E.2d at 487 (applying an objective standard to determine if a

confinement was "cruel" under Ind. CODE § 35-46-1 -4(a)(2)); cf Ricketts v. State, 598 N.E.2d 597, 600-01 (Ind.

Ct. App. 1992) (applying an objective standard to determine if support was "necessary" under Ind. CODE § 35-

46-1 -4(a)(3)).

153. See supra text accompanying note 144.

1 54. Hartbarger, 555 N.E.2d at 487; see supra text accompanying notes 15-16.

155. Ind. Code § 35-46-1 -4(a)(2) (1993).

1 56. Ricketts, 598 N.E.2d at 600; see supra text accompanying notes 1 7-23.

157. Ind. Code § 35-46- l-4-(a)(3) (1993).

158. Ware v. State, 441 N.E.2d 20, 21 (Ind. Ct. App. 1982).

159. Id. at 22.

1 60. State v. Bridgewater, 85 N.E. 7 1 5, 7 1 8 (Ind. 1 908).

161. Ind. Code Ann. § 35-41-2-2 (West 1978) (Commentary, by Charles A. Thompson).



1 995] NEGLECT OF A DEPENDENT 463

culpability statute. Using principles of statutory construction, the Ware court analyzed
the statutes anew.

162

"In reviewing a statute, [the court's] foremost objective is to determine and effect

legislative intent."
163

"It is the duty of the court to construe statutes passed at the same

session of the legislature in such manner as to give effect and efficiency to both statutes

. . .
," 164 "A comparison of the language of the present Act with that of its forerunner is

also instructive."
165 A change in wording from that of the former act strongly indicates

legislative intent to change the pre-existing law.
166

"[W]here, in an act it is declared that

a term shall receive a certain construction, the courts are bound by that construction,

though otherwise the language would be held to mean a different thing." 167

Applying these principles, the court represented legislative intent by finding that:

[t]he culpability definition statute and the child neglect statute were passed

during the same legislative session. The effect of the former—which defines
"knowingly" in subjective terms—is to impose upon Indiana courts a consistent
and uniform system for defining the mens rea of the crimes enumerated in the

Indiana Code. The principal difference between the previous child neglect

statute and the current version is the inclusion in the new statute of two possible

degrees of mental intent
—

"knowingly" or "intentionally." Thus, we can
conclude that the legislature, by inserting degrees of mental intent in the child

neglect statute and succinctly defining those degrees in the culpability definition

statute, intended to effect a change in the former statute and thereby bind the

courts. In order to be convicted of knowingly neglecting a dependent under IC

3 5-46-1 -4(a)(1), the accused must have been subjectively aware of a high

probability that he placed the dependent in a dangerous situation. Our

conclusion promotes uniformity, the obvious goal of the culpability definition

statute, without defeating the goal of the child neglect statute, to-wit, protection

of children. Requiring proof of subjective knowledge in applying subsection

(a)(1) of the child neglect statute is hardly inconsistent with the legislative

objective.
168

But this same court, when confronted with the issue again in the 1985 case ofDavis

v. State, demonstrated the confusion in this area by quoting the Smith court when it stated

that the Neglect of a Dependent Statute

requires the endangerment or abandonment to have been either knowing or

intentional. Although a parent need not possess a specific intent to commit

neglect, he or she must at a minimum be 'aware of facts that would alert a

162. !Fare,441N.E.2dat22.

163. Spaulding v. International Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990).

1 64. Olszewski v. Stodola, 82 N.E.2d 256, 257 (Ind. 1 948).

1 65. Wallis v. Marshall County Comm'rs, 546 N.E.2d 843, 844 (Ind. 1 989).

1 66. See, e.g., id. ; Gingerich v. State, 93 N.E.2d 1 80, 1 82 (Ind. 1 950).

167. Spaulding, 550 N.E.2d at 309 (quoting Department of State Revenue v. Crown Dev. Co., 109

N.E.2d 426, 428-29 n.l (Ind. 1952)).

168. Ware, 441 N.E.2d at 23.



464 INDIANA LAW REVIEW [Vol. 28:447

reasonable parent under the circumstances to take affirmative action to protect

the child."
69

The Davis court then concluded that a father's conviction could not stand even ifhe knew
that his hours-old newborn was going to be left at the side of a gravel road by the mother

because he was not present at the birth or the abandonment. Requiring the parent to be

present at the time of an abusive act for a conviction is at odds with other cases in which

a parent was found guilty of neglect of a dependent upon leaving their child alone with

someone they knew was abusive to their child and that person did in fact injure the
child.

170
Under the statutory standard, the father in Davis should have been found guilty

of neglect ofa dependent ifhe knew his child was going to be abandoned and did nothing

to dissuade or stop the mother. The court's conclusion could only be supported if

evidence showed that the father did not know the baby was going to be abandoned, not
just by showing his absence.

Another appellate court, in McMichael v. State, addressed the issue in 1984 and

agreed that the subjective standard was mandated by the culpability statute
171

before the

Indiana Supreme Court finally addressed the issue in 1985
172

and held that the Ware and

McMichael appellate courts

correctly apply the subjective standard mandated by our culpability definiting

[sic] statute. We now hold that the level of culpability required when a child
neglect statute requires knowing behavior is that level where the accused must

have been subjectively aware of a high probability that he placed the dependent

in a dangerous situation.
173

The Indiana Supreme Court in another case explained in dictum that "it is not necessary

to show that the defendant purposely inflicted . . . injury."
174

It is enough to show that the

defendant placed the dependent in a situation the defendant knew was dangerous. 175 But

this did not end the confusion on the culpability issue.

In 1990, the appellate court, which had first applied the objective standard to the new

Neglect of a Dependent Statute in Smith, followed the Indiana Supreme Court's mandate

and applied a subjective intent standard.
176

But later that year, in Hastings v. State, the

same appellate court accurately began its analysis by stating that "[i]n order to obtain a

conviction for neglect of a dependent, the State must show that the accused was

subjectively aware of a high probability that the accused placed the dependent in a

dangerous situation."
177

However, in the next sentence, the court quoted its Smith

1 69. Davis v. State, 476 N.E.2d 1 27, 1 40 (Ind. Ct. App. 1 985).

1 70. See, e.g., Hastings v. State, 560 N.E.2d 664 (Ind. Ct. App. 1990); Wilson v. State, 525 N.E.2d 619

(Ind. Ct. App. 1988).

171. 47 1 N.E.2d 726 (Ind. Ct. App. 1 984).

1 72. Armour v. State, 479 N.E.2d 1 294 (Ind. 1 985).

1 73

.

Id. at 1 297 (citation omitted).

1 74. Howard v. State, 48 1 N.E.2d 1315,1317 (Ind. 1 985).

175. Id.

1 76. Fisher v. State, 548 N.E.2d 1 1 77 (Ind. Ct. App. 1 990); see supra note 1 33 and accompanying text.

1 77. Hastings v. State, 560 N.E.2d 664, 666-67 (Ind. Ct. App. 1 990).



1 995] NEGLECT OF A DEPENDENT 465

decision, saying that "[t]o make such a showing the State need only prove that the accused

was aware of facts which would alert a reasonable parent under the circumstances to take

affirmative action to protect the child."
178

The Indiana Supreme Court rejected this

holding; it is a misstatement of the law.
179

The Hastings court further held that a mother's prior guilty plea to a neglect of a

dependent charge stemming from an incident in which her boyfriend physically abused

her child was admissible to show that the mother had the requisite knowledge to hold her

culpable for leaving the child with her boyfriend, thereby knowingly placing the child in

a dangerous situation.
180 The mother's conviction was reversed, however, because the

trial court admitted statements by the mother to a welfare worker that she suspected her

boyfriend had previously abused her child. These statements constituted an involuntary

confession.
181

Thus its admission into evidence was fundamental error that required a

reversal of the conviction.
182

Although the Hastings court misstated the law with respect

to the intent element at the beginning of the opinion,
183

its analysis and conclusion

correctly followed the use of a subjective intent standard.
184

Two months later, in Mallory v. State, the same court again cited its Smith opinion,
but this time as standing for the proposition that the objective standard is used to

determine the standard ofcare a parent owes to his or her child
185—a correct statement of

the law.
186 The court also stated that "[a] parent is charged with an affirmative duty to

care for her child."
187

In Mallory, the jury was permitted to infer from circumstantial

evidence that a parent knew the child needed medical care and could therefore conclude

that the parent's conduct constituted knowing neglect under the statute.
188

In 1992, this court, in Sample v. State, again correctly applied the subjective intent

standard to show the defendant's knowledge.
189 The court stated that a subjective test

should be applied to the knowledge element of the neglect of a dependent offense.
190

But

the court then quoted a 1989 Indiana Supreme Court decision, which, in turn, quoted the

Eaglen decision, to establish that an objective standard is used to define "neglect."
191

The

Sample court concluded that circumstantial evidence from the doctor's description of the

injury and opinion as to its probable appearance to the baby's caretaker, the testimony of

the child's babysitter as to the child's behavior and appearance, and the defendant's own

178. Id. at 667.

179. Armour, 479 N.E.2d at 1297; see supra notes 172-73.

1 80. Hastings, 560 N.E.2d at 670.

181. Mat 669.
182. Id. at 670.

1 83. See supra text accompanying notes 1 77-79.

1 84. Hastings, 560 N.E.2d at 670-7 1

.

1 85. Mallory v. State, 563 N.E.2d 640, 644 (Ind. Ct. App. 1 990).

1 86. See supra text accompanying notes 1 33-34; see infra text accompanying notes 1 9 1 and 1 94.

187. Mallory, 563 N.E.2d at 644. The Smith case was also cited as standing for this proposition by

Wayne R. LaFave and Austin W. Scott, Criminal Law § 3.3(a)(1) at 203-04 (2d ed. 1986).

188. Id.

1 89. Sample v. State, 60 1 N.E.2d 457 (Ind. Ct. App. 1 992).

190. Mat 458-59.
191. Mat 459.



466 INDIANA LAW REVIEW [Vol. 28:447

testimony was sufficient "to permit the jury to infer that [the defendant] was aware of a
high probability that by failing to obtain medical treatment for her daughter, she was
placing the child in a situation which endangered her life and health."

192
This statement

suggests an objective standard—the baby's injury was such that it was obvious to a
reasonable person that the baby needed medical attention. But the defendant's testimony,

combined with permissible inferences from the circumstantial evidence constituted

sufficient evidence of her actual knowledge that the child needed medical treatment
193

to

satisfy the statutory knowledge requirement. The line between an objective standard and

a subjective standard that is inferred from circumstantial evidence is a very fine one.

In Rinker v. State, the second district correctly used a subjective knowledge standard

and an objective standard of neglect in terms of adequate nutrition and reasonably clean

living conditions in upholding the conviction of a parent whose conduct was not as

egregious as that in most neglect of a dependent cases.
194

While filthy living conditions

and evidence ofmalnutrition were sufficient to support a conviction in Rinker™5 the same

court, a year later, held that "evidence of malnutrition, in and of itself, does not support

the conclusion that the person's health or life is at risk or in danger," and was therefore

insufficient to sustain a neglect of a dependent conviction.
196

In Fout v. State, the third district also correctly applied the subjective standard,

noting
197

that "[njormally a defendant's subjective awareness requires resort to inferential

reasoning to ascertain a mental state. Thus, a court must view all the surrounding

circumstances to determine whether the guilty verdict was proper."
198

This is the same

method the Sample court used. In Fout, as in Sample, circumstantial evidence was used

to infer the knowledge requirement as well as evidence from the defendant's own
admissions.

199

In Fout, the defendant was found guilty for failing to seek medical aid during the last

stages of his wife's troubled pregnancy when the couple had been advised to proceed

immediately to the hospital because the mother and the baby were at a very high risk of

injury or death. The mother's water had broken five weeks before her due date. An
examination had revealed the inherent dangers ofa premature birth, that an infection was

present, and that the fetus was in a breech position. However, the couple insisted on a

home delivery. In fact, the baby was born prematurely at home, would not eat,
experienced breathing difficulties, and died the next day. The couple never sought

medical assistance. The defendant was convicted of an elevated Class B felony for
neglect of a dependent that resulted in serious bodily injury even though the child would

have had only a fifty percent chance of survival had immediate medical aid been

administered. The fact that the baby did not survive and was not given any medical

treatment, coupled with the evidence that the defendant refused medical treatment while

192. A* at 460.

193. Id. at 459-60.

194. 565 N.E.2d 344, 346 (Ind. Ct. App. 1991).

195. Id.

1 96. Ricketts v. State, 598 N.E.2d 597, 597 (Ind. Ct. App. 1 992).

197. Fout v. State, 575 N.E.2d 340, 342 (Ind. Ct. App. 1991).

198. Id.

199. Id.



1 995] NEGLECT OF A DEPENDENT 467

aware of the risks, was sufficient to support the conviction and enhancement to a Class

B felony.200

In a companion case, the wife's conviction was reversed because of the "quite

different records developed in the two cases."
201

The evidence showed that the defendant-

wife was aware, before the birth, that her pregnancy was high risk because the baby was

in the breech position and because her water had broken prematurely. The defendant did

not comply with her doctor's instructions to go to the hospital after her water broke.202

The evidence that showed that she was aware of the infection, however, was excluded

because of the physician-patient privilege. Although the baby exhibited some signs of

health problems in the twenty-four hours she was alive, none ofthe evidence showed that

the mother knew these signs indicated that the baby had a serious problem. The evidence

also showed that the baby died of the infection and had the mother obtained proper care

for the baby, the baby would have had a substantial chance of surviving.
203

The court

concluded that

the evidence of the element that is missing in this case, the knowledge of the

danger to which she was exposing her child, was present in her husband's case.

The absence of this evidence here distinguishes [the wife's] conviction from that

of her husband, and the absence of this evidence is the reason why her
conviction may not stand while her husband's may.204

The court reversed the wife's conviction because it was not supported by sufficient

evidence.
205

The Fout court required a high standard of evidence necessary for a showing of

knowledge to sustain a conviction in a case that seemed to have sufficient circumstantial

evidence from which the jury could infer the necessary knowledge element.
206

While the

mother realized that the baby was in danger and that she should seek further medical

assistance, the evidence did not show knowledge ofthe infection, the danger that actually

caused the baby's death. This court required not only knowledge of a dangerous situation

and inaction by the parent when help was readily obtainable; it also required evidence of

knowledge of the danger that actually caused harm to the defendant, a standard higher

than that required by the statute.

In a contrasting case, White v. State, the Indiana Supreme Court quoted the objective

standard from Eaglen in deciding whether an environment of illegal drug use "poses an

actual and appreciable danger to a dependent."
207

This is a case where the defendant's

positive actions created the environment. The court found that the Eaglen court's

objective standard, which had previously been applied to omissions, was the appropriate

way to determine whether this environment of drug use created the requisite "actual and

200. id.

201. Fout v. State, 619 N.E.2d 31 1, 314 (Ind. Ct. App. 1993).

202. Id. at 313.

203. Id.

204. Mat 314.
205. Id.

206. See supra text accompanying notes 145-46.

207. White v. State, 547 N.E.2d 83 1 (Ind. 1 989).



468 INDIANA LAW REVIEW [Vol. 28:447

appreciable danger" to the child—a violation of the statute.208 The court determined that
drug use did create such a danger and, since the defendant knowingly subjected the

dependent to that environment, the conviction was upheld.209

The "knowing act" required in White was subjecting the dependent to an environment

of illegal drug use, not knowingly subjecting the dependent to this environment knowing

that the drugs were a danger to the dependent. Compared to Fout, the conviction resulted

from a liberal application of the statute and interpretation of what constitutes an

environment that poses an actual and appreciable danger. The child had observed both

of her parents smoke marijuana repeatedly. On various occasions, the dependent had
found marijuana and intravenous drug paraphanalia around the home where they lived.
The dependent had also "observed her father at home on one or two occasions mash up
a white powder and inject it into his arm."

210 The child was told it was "speed," but

evidence was insufficient to show that the substance being injected was a narcotic drug

or even a controlled stimulant.
211

In fact, no evidence was presented at trial that showed

that the drugs presented a danger to the child except when an expert witness testified that

"a child's exposure to an environment of illegal drug use constitutes an actual and

appreciable danger by causing the drug-using parent to neglect that child's well-being."212

But "[t]here was no evidence that either parent failed to provide the daughter with food,

clothing, or shelter, or mistreated her in any way."
213

The court concluded that since

drugs are illegal because of their harmful effects and consequences, the defendant's

knowing exposure of his dependent to them was per se an actual and appreciable

danger.
214

The defendant was convicted on a second count of neglect of a dependent in White

for providing the child with marijuana and smoking it with her.
215

However, the State

presented no evidence that smoking marijuana is addictive or harmful to the health. The

dissenting justice thought that there was not enough evidence that "the experimentation

by the daughter on two or three occasions was such as to create an actual and appreciable

danger to the child's life or health as is essential [for conviction]."
216

The court split three to two in upholding the conviction for the first count and four

to one on the second count. This demonstrates a very liberal application of the Neglect

of a Dependent Statute to a situation where no evidence was proffered that the dependent

was ever in any danger. Ironically, a stronger case could perceivably be made that

smoking cigarettes in a dependent's presence constitutes a situation of an actual and

appreciable danger to the life or health of that dependent.
217

This points out the vagueness

208. Id. at 836.

209. Id.

210. Id. at 833.

211. Id. at 838 (DeBruler, J., dissenting).

212. Id.

213. Id. at 838 (DeBruler, J., dissenting).

214. Id. at 836.

215. Id.

216. Id. at 838 (DeBruler, J., dissenting).

217. See Smoke Hurting Children, The News-Sentinel (Fort Wayne), Jan. 6, 1994, at 1H (Surgeon

General Joycelyn Elders opens a new campaign against secondhand smoke because of the harmful effects on



1 995] NEGLECT OF A DEPENDENT 469

of the statute and the discretion that prosecutors have under such a statute in choosing

when to apply it and to whom.

C. The Unconstitutionally Vague and Overbroad Problem

Another issue that has been litigated several times in connection with the Neglect of

a Dependent Statute is the statute's constitutionality. Indiana's neglect statutes have a

history of constitutional attacks.
218

Indiana's Neglect of a Dependent Statute has been

attacked as being both unconstitutionally vague and overbroad.
219

While several appellate

courts have upheld the statute under such attacks, the Indiana Supreme Court has not done

so very convincingly. To save the statute from being overbroad and vague, the Indiana
Supreme Court narrowed its construction to apply only to situations that endanger the

dependent's life or health with an actual and appreciable danger. However, the court

stated that "[e]ven with this construction, there is a residual vagueness presented."
220

This

suggests that the statute may still be open to further attacks and, indeed, it has been
attacked several times since this opinion.

221

When considering a constitutionality attack, "[i]t is well established that vagueness
challenges to statutes which do not involve First Amendment freedoms must be examined

in the light of the facts of the case at hand."
222 The statute is judged on an "as-applied"

basis.
223

The rationale is evident: to sustain such a challenge, the complainant must prove

that the enactment is vague "not in the sense that it requires a person to conform

his conduct to an imprecise but comprehensible normative standard, but rather

in the sense that no standard of conduct is specified at all."
224

"Objections to vagueness under the Due Process Clause rest on the lack of notice, and

hence may be overcome in any specific case where reasonable persons would know that

their conduct is at risk."
225

This is clearly an objective test.

The Indiana Supreme Court has stated that when addressing the constitutionality of

a statute, a court must exercise self-restraint or be in danger of exceeding its own

constitutional bounds when limiting the legislature to theirs. A court must act as a court,

children).

218. See generally Dirk William De Roos, Note, Dependency and Neglect: Indiana 's Definitional

Confusion, 45 IND. L.J. 606 (1970).

219. See, e.g., State v. Downey, 476 N.E.2d 121 (Ind. 1985); Demontigney v. State, 593 N.E.2d 1270

(Ind. Ct. App. 1992); Klagiss v. State, 585 N.E.2d 674 (Ind. Ct. App. 1992); Kerlin v. State, 573 N.E.2d 445

(Ind. Ct. App. 1991); Mallory v. State, 563 N.E.2d 640 (Ind. Ct. App. 1990).

220. Downey, 476 N.E.2d at 123.

22 1

.

See, e.g., Mallory, 563 N.E.2d at 640; Kerlin, 573 N.E.2d at 447; Demontigney, 593 N.E.2d at 1 270;

Klagiss, 585 N.E.2d at 674.

222. United States v. Mazurie, 419 U.S. 544, 550 (1975).

223. Maynard v. Cartwright, 486 U.S. 356, 361 (1988).

224. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) (quoting

Coates v. City of Cincinnati, 402 U.S. 61 1, 614 (1971)).

225. Maynard, 486 U.S. at 361

.



470 INDIANA LAW REVIEW [Vol. 28:447

not as a "supreme legislature."
226

The legislature is afforded a wide latitude of discretion

in its job of determining public policy. The court has the constitutional power to limit the

legislature to its lawful territory by "prohibiting legislation which, although enacted under

the claim of a valid exercise ofpolice power, is unreasonable and oppressive."
227 A court

can also narrow the construction of a statute to save it from nullification if such a

narrowing construction "does not establish a new or different policy basis and is
consistent with legislative intent."

228
But "[a] court cannot amend a statute or establish

public policy."
229 "The authority to define crimes and establish penalties belongs to the

legislature."
230

A statute is presumed constitutional until that presumption is overcome by a clear
showing to the contrary.

231 "A statute will not be found unconstitutionally vague if
individuals of ordinary intelligence would comprehend it to adequately inform them of

the conduct to be proscribed."
232 A statute does not have to list each item of conduct that

is prohibited, it only has to inform the individual ofthe "generally proscribed conduct."
233

By these standards, the Neglect of a Dependent Statute passes the test, especially since
it begins with a presumption of constitutionality. By this objective test, a reasonable
person would know that the responsibility of caring for a dependent includes a duty to
protect and not endanger the life or health of the dependent. The law needs to enforce this

duty because a dependent is not capable of self-protection.

But the Indiana Supreme Court has also stated that a statute must be written so that

persons of common intelligence are not left to guess about its meaning nor differ as to its
application.

234
"[TJhere must be something in a criminal statute to indicate where the line

is to be drawn between trivial and substantial things so that erratic arrests and convictions

for trivial acts and omissions will not occur. It cannot be left to juries, judges, and

prosecutors to draw such lines."
235

The cases are full of examples of conflicting uses and

opinions.
236

Since the Neglect of a Dependent Statute is so broadly written, prosecutors

have a tool with which they can exercise a large amount of discretion both in whom they
charge and under what circumstances.

An example ofthe exercise ofprosecutorial discretion leading to a liberal application
of the Neglect of a Dependent Statute can be found in a 1990 case where "cruel

confinement"
237

charges were brought against a boy's parents when they punished him by

226. Downey, 476 N.E.2d at 122.

227. Id.

228. Id. at 123.

229. Id.

230. Id.

231. Id. at 122.

232. Id.

233. Id.

234. Id. at 123 (citing Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)).

235. Id. (quoting Stone v. State, 41 N.E.2d 609 (Ind. 1942)).

236. See supra text accompanying notes 62-74, 1 97-206, and 206- 1 7; see infra text accompanying notes

244-50.

237. Ind. Code § 35-46-1 -4(a)(2) (1993).



1 995] NEGLECT OF A DEPENDENT 47

1

"grounding" him.
238 The parents locked the boy into his bedroom at night for a two-week

period and did not allow him to associate with his siblings during the daytime when the
parents were not there. The parents pled guilty to the charges. After their motion to
withdraw the pleas was denied, they were sentenced to suspended one-year terms. The

convictions were overturned because the court concluded that as a matter of law this

situation could not constitute "cruel confinement."
239

This case demonstrates the power of a prosecutor in choosing when to apply this
statute. These parents were arrested and originally charged with six counts of neglect of

a dependent, all Class D felonies.240 Each count of a Class D felony carries a potential
penalty of imprisonment for a fixed term of one and one-half years, plus a possible fine

of up to $10,000.
241

That is a total possible penalty for each defendant in this case of

imprisonment for nine years, plus a possible fine of $60,000. Five of the counts were

dropped and the sixth resulted in the conviction that was overturned.242 The underlying

concern is that a prosecutor has the power to place a parent in the position of having to

defend against multiple felony charges for neglect ofa dependent based on the seemingly

innocent act of "grounding" the son.

Other examples include State v. George
243

and two similar cases, State v. Kellogg
244

and State v. Kincaid.
245

Each ofthese cases involved a parent who was operating a motor
vehicle while under the influence of alcohol. Each parent was charged not only with the

alcohol offense, but also with neglect of a dependent because each parent was

accompanied by a minor child at the time. In George, the parent's blood alcohol content

was 0.23 percent, but the defendant was found not guilty of the neglect charge because

the jury felt that even though the statutory elements were met, the additional Class D
felony charge was "being too hard on the mother."

246
The prosecutor then decided to drop

the neglect of a dependent charge in the Kincaid case
247

because the blood alcohol level

was only 0.16 percent. Since the jury had nullified the neglect charge in George with a

0.23 percent blood alcohol level, the prosecutor did not see any point in trying the second,

weaker case.
248

238. Hartbarger v. State, 555 N.E.2d 485 (Ind. Ct. App. 1 990).

239. Id. at 486-87 (This is an example of a case where the defendants admitted that they knowingly

committed the act and they subjectively thought they were guilty of a crime, but since the conduct was not

proscribed, using an objective standard, they could not be guilty ofa crime.); see supra text accompanying notes

150-53.

240. Hartbarger, 555 N.E.2d at 485.

24 1

.

Ind. Code § 35-50-2-7(a) ( 1 993).

242. Hartbarger, 555 N.E.2d at 485-86.

243. State v. George, Trial No. 06D02-9303-CF95 (Boone County, Superior Court, Criminal Division

2, tried Nov. 17, 1993); see supra text accompanying notes 1-5.

244. State v. Kellogg, Trial No. 30A0 1 -93 1 0-CR-337 (Ind. Ct. App., filed Dec. 1 5, 1 993).

245. State v. Kincaid, Trial No. 06D02-9303-CF1 24 (Boone County, Superior Court, Criminal Division

2, tried Jan. 4, 1994).

246. Telephone Interview with Rebecca S. McClure, Boone County Prosecutor, in Lebanon, Ind. (Jan.

6, 1994).

247. Kincaid, Trial No. 06D02-9303-CF 1 24.

248. Telephone Interview with Rebecca S. McClure, Boone County Prosecutor, in Lebanon, Ind. (Jan.



472 INDIANA LAW REVIEW [Vol. 28:447

In Kellogg, a case in a different county and under a different prosecutor, the jury

convicted the defendant for both the alcohol charge and the neglect of a dependent charge,

along with several other offenses.
249

The defendant's blood alcohol level was 0.18

percent. The difference between the Kellogg conviction and the George acquittal is the

George jury's decision to nullify. These two cases differ from the Kincaid case in that

the prosecutor decided not to try the Kincaid case on the neglect of a dependent charge.

As the Indiana Supreme Court stated in Downey, "It cannot be left to juries, judges, and
prosecutors to draw such lines."

250

But juries, judges, and prosecutors often have to draw such lines in a variety of

situations and with many statutes.251 That is the nature of law. The Neglect of a
Dependent Statute is inherently flexible to give prosecutors a workable tool with which

to protect dependents. This flexibility is both useful and necessary. It enables prosecutors

to do a more effective job of protecting dependents from being placed in dangerous

situations.
252 The key to the constitutionality tests is that the statute is tested "as applied."

The statute passes the constitutionality test as long as it is "defined so that a person of

ordinary intelligence can perceive the wrong intended to be prohibited."253

Another example of a use ofthe Neglect of a Dependent Statute that shows the great

flexibility of the statute is a test case in Marion County in which a mother was indicted

because her gun was used in an accidental shooting involving children.
254 The mother's

twelve-year-old son took his mother's loaded .357-caliber Magnum revolver out from
under a daybed and was showing it to friends when it discharged, injuring one of the

children. A loaded shotgun was also within easy reach of the children. The grand jury's
indictment ofthe mother on neglect ofa dependent charges surprised even the prosecutor.

He sent the charges to the grand jury thinking they would not indict. In the wake of a
number of local shooting injuries involving children, the prosecutor intended to use this

case as an example to make a plea to the Indiana General Assembly for a new statute
mandating the responsible ownership of guns.

255

With this great flexibility, many other examples could eventually turn into neglect
charges: drag racing with a dependent in the car, speeding with a dependent in the car,

failing to comply with the seat belt or child safety restraint laws,
256

and subjecting

dependents to an environment of cigarette smoke. The Indiana Supreme Court used the

examples of raising a child in a high-rise apartment and mopping a kitchen floor in the

6, 1994).

249. State v. Kellogg, Trial No. 30D02-9207-CF0003 1 (Hancock County, Superior Court, Criminal

Division 2, tried June 17-18, 1993).

250. State v. Downey, 476 N.E.2d 1 2 1 , 1 23 (Ind. 1 985).

251. Interview with Henry C. Karlson, Professor of Law, Indiana University School of

Law—Indianapolis (January 12, 1994).
252. Telephone Interview with Rebecca S. McClure, Boone County Prosecutor, in Lebanon, Ind. (Jan.

6, 1994); Telephone Interview with Terry Snow, Hancock County Prosecutor, in Greenfield, Ind. (Jan. 7, 1994);

Interview with Jeff Modisett, Marion County Prosecutor, in Indianapolis, Ind. (Jan. 7, 1994).

253. Rhinehardt v. State, 477 N.E.2d 89, 93 (Ind. 1 985).

254. Kevin O'Neal, Jury Indicts Mother, INDIANAPOLIS NEWS, Dec. 24, 1 993, at B2.

255. Interview with Jeff Modisett, Marion County Prosecutor, in Indianapolis, Ind. (Jan. 7, 1994).

256. Ind. Code §§ 9-19-1 1-2, -3 (1993).



1 995] NEGLECT OF A DEPENDENT 473

presence of a small child as the "literal intendment of the provision, but . . . not a rational

intendment."
257

While some of these situations are more dangerous to one's life and
health than others, they all fit the literal elements of neglect of a dependent. These

examples show that the language of the Neglect of a Dependent Statute is quite broad and
as the statute is currently written, it will probably be subject to more constitutional attacks

in the future. While prosecutors need a flexible, workable tool to do an effective job of

protecting dependents, more clarity and guidance is needed in Indiana's Neglect of a
Dependent Statute.

III. Proposal for a Statutory Amendment

Many constitutional attacks and other problems could be avoided by amending the
Neglect of a Dependent Statute. To begin, the word "may" should be struck from the
statute to reflect the narrowing construction of the Indiana Supreme Court.

258
The statute

should also include language reflecting the court's mandate that "[t]he placement must

itself expose the dependent to a danger which is actual and appreciable."259 Language

should also be added stating that the placement can be a result of a positive act or a failure

to act—an omission.260 The statute should also explain that an objective standard
determines whether the situation is "dangerous," the confinement "cruel," or the missing

support "necessary."
261

Whether the action or omission on the part of the defendant that

leads to the charge is knowing or intentional is to be determined using a subjective

standard.
262

A statement of policy, showing the legislature's intended use of the statute, would
also be helpful. While such statements are not normally given by the Indiana General

Assembly, this statement would give prosecutors and grand juries more direction

regarding how and when the statute should be applied. It would also give juries and
judges some guidance for determining when a charge is too trivial. This policy statement

would help "indicate where the line is to be drawn between trivial and substantial things

so that erratic arrests and convictions for trivial acts and omissions will not occur."
263

When another statute covers a specific situation, this policy statement could also state
whether that more specific statute is meant to be the exclusive means of addressing that

situation or whether the broader, more general neglect statute could also be used. When
a statute addresses a specific situation, that statute should be written in a way that covers

all such situations, so the neglect statute is not needed. An example is the statutes that
require that a child be properly fastened and restrained by a child passenger restraint

system or a seat belt in a motor vehicle.
264 A violation is a Class C infraction,265 which

257. Downey, 476 N.E.2d at 1 23.

258. Id.; see supra text accompanying notes 24-27.

259. Downey, 476 N.E.2d at 123.

260. See supra text accompanying notes 57-58.

261. See supra text accompanying notes 15-23, 133-34, 151-52, 185-86, 191, and 194.

262. See supra text accompanying notes 1 7 1 -73

.

263. Downey, 476 N.E.2d at 123.

264. Ind. Code §§ 9-19-1 1-2, -3 (1993).

265. Id.



474 INDIANA LAW REVIEW [Vol. 28:447

carries a penalty ofup to $500.
266 A person who operates a motor vehicle carrying a child

who is not properly restrained places that child in a situation of actual and appreciable
danger under the current Neglect of a Dependent Statute, which is a Class D felony.267

The prevailing court interpretation is that the neglect statute can still be used, even when
statutes which are specifically directed to a particular problem exist.

268
But the more

specific child passenger restraint statutes in this situation should control. The violator

should only be subjected to the penalty which the legislature mandated by those statutes

that address that specific situation. If a stricter penalty is desired, the legislature should

establish that public policy. "The authority to define crimes and establish penalties

belongs to the legislature. A court cannot amend a statute or establish public policy . .

.

"269

The proposed statute is as follows:

(a) A person having the legal care of a dependent, whether assumed voluntarily
or because of a legal obligation, who knowingly or intentionally:

(1) Places that dependent in a situation which is an actual and appreciable

danger to the dependent's life or health;

(2) Abandons or cruelly confines the dependent;

(3) Deprives the dependent of necessary support; or

(4) Deprives the dependent of education as required by law; commits

neglect of a dependent, a Class D felony. However, except for violation of
clause (4), the offense is a Class B felony if it results in a serious bodily
injury.

Whether a situation is an "actual and appreciable danger" in clause (1), a

"cruel" confinement in clause (2), or a lack of "necessary" support in clause (3)

is a question for the trier of fact, to be determined using an objective, reasonable

person standard. That is, whether a reasonable person of ordinary intelligence

would perceive it as so.

A "placement" in a dangerous situation under clause (1) may be achieved
by either a positive act or a failure to act when action is necessary to prevent a

dangerous situation from occurring. When considering a danger to a
dependent's health, mental health is to be considered as important as physical

health.

The word "cruelly" requires that the confinement is likely to result in a harm

such as mental distress, extreme pain or hurt, or gross degradation, and yet does

not necessarily endanger the dependent's life or health.

In determining whether support is "necessary" under clause (3), clause (1)

should be used as a guide—whether a lack of the support in question constitutes
a situation of actual and appreciable danger to the dependent's life or health.

266. Ind. CODE § 34-4-32-4 ( 1 993).

267. Ind. Code § 35-46-1 -4(a)(1) (1993); see supra note 5.

268. See State v. Springer, 585 N.E.2d 27, 30 (Ind. Ct. App. 1992).

269. Downey, 416 N.E.2d at 123.



1 995] NEGLECT OF A DEPENDENT 475

It is a defense that the accused person, in the legitimate practice of his

religious belief, provided treatment by spiritual means through prayer, in lieu of
medical care, to his dependent.

(b) If another statute is specifically directed to a particular situation, that more

specific statute is intended to be the means by which that violation is addressed.

(c) The purpose of this statute is to authorize the intervention of the State's

police power to prevent harmful consequences and injury to dependents. Law
enforcement officials need not await loss of life, limb, or property, but may
intervene where conduct is sufficient to warrant belief that such an ultimate

harmful consequence will ensue. The goal of this statute is the protection of

dependents. When a person is responsible for the care of a dependent, that
responsibility carries with it an accountability that is designed to ensure that the

responsible person will not knowingly or intentionally do anything that a

reasonable person would not do that endangers the life or the mental or physical

health of the dependent.
270

In addition to this proposed statute, other more specific statutes should be considered

that would apply to commonly recurring situations to replace the use of the more general

Neglect ofa Dependent Statute. An example is the gun responsibility legislation currently
being advanced by the Marion County Prosecutor, which is designed to keep loaded guns

out of the reach of children.
271

Other solutions include reconsidering some of the current

statutes and updating the penalties as necessary to promote the protection of dependents.

Another possible solution is to add to appropriate statutes, as an aggravating

circumstance, that the involvement of a dependent leads to a greater penalty. An example
is the Criminal Recklessness Statute, which proscribes a reckless, knowing, or intentional

act that creates a substantial risk of bodily injury to another person.
272

Use of a vehicle

or a deadly weapon are both aggravating circumstances that result in greater penalties.

The statute could likewise find an additional aggravating circumstance where the "other

person" is a dependent. This would make the Criminal Recklessness Statute very similar

to the Neglect of a Dependent Statute. An example that is already written into the Indiana
Code involves the seat belt statutes. If a front seat passenger fails to use a seat belt,

273
it

is only a Class D infraction,274 a judgment of up to twenty-five dollars.275 But if that
passenger is under four years old, it is then a Class C infraction,276 a judgment of up to
$500.

277
Similarly, an aggravating circumstance could be added to the drunk driving

270. Subsection (b) of Ind. Code § 35-46-1-4, which deals with child selling, should be separated from

the Neglect of a Dependent Statute and addressed in a separate section.

271

.

Interview with Jeff Modisett, Marion County Prosecutor, in Indianapolis, Ind. (Jan. 7, 1994).

272. Ind. Code § 35-42-2-2 ( 1 993).

273. Ind. Code § 9-19-10-2 (1993).

274. Ind. Code § 9-19-10-8 (1993).

275. Ind. Code § 34-4-32-4(d) (1993).

276. Ind. Code §§ 9-19-1 1-2, -3 (1993).

277. Ind. Code § 34-4-32-4(c) ( 1 993).



476 INDIANA LAW REVIEW [Vol. 28:447

statutes,
278

saying that a greater penalty would ensue if a dependent is in the vehicle with

a drunk driver. If such an amendment were proposed and not passed, that would indicate

that the Neglect of a Dependent Statute should not be used in this situation.

Conclusion

Although these proposals do not solve all of the problems presented by the Neglect

of a Dependent Statute, they do give juries, judges, and prosecutors clearer standards and

more guidelines from the public-policy-establishing and the crime-and-penalty-

establishing branch of our government. When coupled with the political pressure on
prosecutors to serve the public well and the protection of the right to be tried by a jury of

peers, these proposals will adequately provide "something to indicate where the line is to

be drawn between trivial and substantial things so that erratic arrests and convictions for

trivial acts and omissions will not occur."
279 When "considered with the . . . concepts of

[danger,] neglect, care, custody, control, dependent, places, life, and health, and in

conjunction with the social problem dealt with, minimal due process notice requirements

are met."
280

278. Ind. Code §§ 9-30-5-1, -2 (1993).

279. Downey, 476 N.E.2d at 1 23.

280. Id.