ENDANGERING
THE WELFARE OF A CHILD, ABUSE OR NEGLECT
(Second
Degree)
Defendant is
charged with endangering the welfare of a child
(Read
Pertinent Count(s) of the Indictment)
The statute
upon which this charge is based reads, in pertinent part:
Any person having a legal duty for
the care of a child or who has assumed responsibility for the care of a child
who causes the child harm that would make the child an abused or neglected
child . . . is guilty of a crime.
To find
(defendant) guilty of this crime, the State must prove beyond a reasonable
doubt these elements:
1. That (name of victim) was a child.
2. That
defendant knowingly caused the child harm that would make the child abused or
neglected;
3. That
defendant knew that such conduct would cause the child harm that would make the
child abused or neglected.
4. That
defendant had a legal duty for the care of the child or had assumed
responsibility for the care of the child.
The first
element that the State must prove beyond a reasonable doubt is that (name of
victim) was a child.
A
"child" means any person under the age of eighteen (18) years at the
time of the offense. The State must
prove only the age of (name of victim) at the time of the offense beyond a
reasonable doubt. It does not have to
prove that defendant knew or reasonably should have known that (name of victim)
was under the age of eighteen (18).[2]
The second
element that the State must prove beyond a reasonable doubt is that defendant
knowingly caused the child harm that would make the child abused or neglected.[3]
A person acts
knowingly with respect to the nature of his/her conduct or
the attendant circumstances if he/she is aware
that the conduct is of that nature or that such circumstances exist or the
person is aware of a high probability of their existence. A person acts knowingly with respect to a
result of the conduct if he/she is aware
that it is practically certain that such conduct will cause a result.
“Knowing,” “with knowledge,” or equivalent terms have the same meaning.
Knowledge is
a condition of the mind. It cannot be seen. It can only be determined by
inference from (defendant’s) conduct, words or acts. A state of mind is rarely
susceptible of direct proof but must ordinarily be inferred from the facts.
Therefore, it is not necessary that the State produce witnesses to testify that
an accused said that he/she had a
certain state of mind when he/she did a
particular thing. It is within your power to find that such proof has been
furnished beyond a reasonable doubt by inference which may arise from the
nature of his/her acts and
conduct and from all he/she said and did at the particular time and place and from
all surrounding circumstances established by the evidence.
The third element that the State must prove
beyond a reasonable doubt is that defendant knew that his/her conduct
would cause the child harm that would make the child abused or neglected. I have previously defined the concept of
“knowing” for you.
The fourth
element that the State must prove beyond a reasonable doubt is that defendant had a legal duty for the
care of the child or assumed responsibility for the care of the child. A person having a legal duty for the care of
a child, or who has assumed responsibility for the care of the child, includes
a natural parent, adoptive parent, resource family parent, step-parent or any
other person who has assumed responsibility for the care, custody or control of
a child or upon whom there is a legal duty for such care. A person who has assumed the responsibility
for the care of the child includes any person who assumes a general and ongoing
responsibility for the child and who establishes a continuing or regular
supervisory or caretaker relationship with the child.[4]
The
general and ongoing responsibility for the care of the child may be legal and
formal or it may arise from informal arrangements. It may be based, not only on a parental
relationship or legal custody, but also on less structured relations such as
cohabitation with the parent of the child.
A
person who assumes temporary, brief or occasional caretaking functions such as
irregular or infrequent babysitting would not meet the standards of general and ongoing responsibility for the
care of a child.
A
person who supervised a child on a regular and continuing basis over extended
periods of time and engages in matters that are generally committed to the
child’s parents would meet this
standard of general and ongoing responsibility for the care of a child.
In
determining the nature of the relationship between the defendant and the child
you should consider these factors: the disparity in ages or maturity; the
importance of the activity or activities the adult supervises to the child, the
extension of the supervising relationship beyond “guidance and advice” expected
given the adult’s supervising role, and the degree of dependence and trust the
child places in the adult.[5]
If the State has proven every
element of the offense beyond a
reasonable doubt, then you must find defendant guilty of endangering the
welfare of a child. If the State has
failed to prove any of the elements of the offense beyond a reasonable doubt, then
you must find defendant not guilty.
[1] By
amendment effective August 14, 2013, the Legislature reconfigured the
endangering statute so that N.J.S.A. 2C:24-4a(1) refers to endangering
by sexual conduct and N.J.S.A. 2C;24-4a(2) refers to endangering by abuse
or neglect. This portion of the
amendment has no effect on the substantive provisions of the statute.
[3] Charge the appropriate definition of
an abused or neglected child as provided in N.J.S.A. 9:6-1 and N.J.S.A.
9:6-8.21. In this regard, see State v. N.I., 349 N.J. Super.
299 (App. Div. 2002), which holds that the term “willfully forsaken” as used in
N.J.S.A. 9:6-1 requires an intent to abandon a child permanently - “a
permanent giving up or relinquishment of the child.” N.I. interprets
“willfully” to mean “intentionally or purposely as distinguished from
inadvertently or accidentally.” Id.
at 313-314, quoting State v. Burden, 126 N.J. Super. 424 (1974)
at 427. Note that N.I. holds that, despite the use of the word “intent”
above, the relevant mental condition is that of acting “knowingly.”
[4] State v. Galloway, 133 N.J. 631, 659-62 (1993). A person who has assumed responsibility for
the care of a child may include a teacher, employee, volunteer, whether
compensated or uncompensated, of an institution who is responsible for the
child’s welfare, or a person who legally or voluntarily assumes the care,
custody, maintenance, or support of the child. It can also include any staff person, as well
as teaching staff members or other employees, who have a legal duty for the
care and supervision of the child.
[5] State
v. Galloway, 133 N.J. 631, 659-62 (1993). No reliance upon the definitions provided
in N.J.S.A. 9:6-2 or 9:6-8.21
should be utilized in describing the role of a parent, guardian or custodian. State v. McInerney, 428 N.J. Super.
432, 449 (App. Div. 2012), certif. denied, 214 N.J. 175
(2013).
