Opinion
RC-0141-09-VOP-T
9-3-2009
THE PEOPLE OF THE STATE OF NEW YORK, v. DIANE P. LADIEU, Defendant.
Andrew J. Wylie, District Attorney, Plattsburgh, (Chantelle Schember, of counsel) for the People of the State of New York Daniel Gaudreau, Plattsburgh, Attorney for Diane P. LaDieu
On February 7, 2007, the defendant Diane P. LaDieu was adjudged to be guilty of the crime of petty larceny and placed on three years of probation. Among the terms and conditions of her probation, was that she obey all local, state and federal laws. It is undisputed that at all relevant times Ms. LaDieu was aware that she was on probation and aware that this was one of the terms and conditions of her probation. The People filed a violation of probation petition against Ms. LaDieu dated May 20, 2009 alleging that on April 10, 2009, Ms. LaDieu committed the crime of Endangering the Welfare of a Child and therefore, Ms. LaDieu violated the terms and conditions of her probation. An evidentiary hearing was conducted on August 17, 2009.
FINDINGS OF FACT
On April 10, 2009 at approximately 8:00 a.m., Ms. LaDieu removed her thirteen year old son, Austin, from her home and required Austin to stay outside until he apologized to her for his alleged misconduct. Austin was placed outside in a light shirt, pajama bottoms and socks, but no shoes. It was sunny and approximately forty degrees Fahrenheit outside. Approximately thirty minutes after Ms. LaDieu placed Austin outside, Austin snuck back into the house, obtained a coat and shoes and went back outside. Approximately fifteen minutes after Austin obtained his coat and shoes, Ms. LaDieu went outside, asked Austin why he had his shoes and jacket and directed Austin to give them back to her. Austin complied with this direction and gave his shoes and jacket back to his mother. Other than taking back his shoes and jacket, Ms. LaDieu failed to take any other action to supervise Austin while he was outside. After about another ten minutes, Austin came back inside and apologized to his mother because Austin was too cold to stay outside any longer.
Ms. LaDieu felt that Austin engaged in behavior that was punishment worthy and that he had to apologize to her. Austin felt that he had done nothing wrong, that he was the victim of Ms. LaDieu's misbehavior and that he did not owe her any apology. It is undisputed that the home's door was not locked and that Austin could have entered the home at any time on the condition that he apologize to his mother. Austin did not have a cell phone with him when he was outside.
LEGAL ANALYSIS
At the outset, the Court notes that at the conclusion of the evidentiary hearing, the Court provided both parties an opportunity to submit any authority they could find on the issue of whether or not the above described conduct constituted the crime of Endangering the Welfare of a Child. The Court received no authority from either party.
New York State Penal Law § 260.10 defines the Class A misdemeanor of Endangering the Welfare of a Child as follows:
A person is guilty of endangering the welfare of a child when:
1. He knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health; or
2. Being a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old, he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming an "abused child," a "neglected child," a "juvenile delinquent," or a "person in need of supervision," as those terms are defined in articles ten, three and seven of the family court act.
Endangering the welfare of a child is a class A misdemeanor.
The Court finds that on April 10, 2009 Ms. LaDieu committed the crime of Endangering the Welfare of a Child as that crime is defined under subdivision (1). In making this finding, the Court is mindful that there need not be any actual injury suffered by the child (see, People v Gergerson, 17 NY2d 398, 271 NYS2d 336 (1966)), but also recognizes that to be guilty of this crime, injury has to be more than merely possible, it has to be likely (see, People v Hitchcock, 98 NY2d 586, 750 NYS2d 580 (2002)).
Clearly it was Ms. LaDieu's intention to remove Austin from her home until Austin apologized. Ms. LaDieu did not accidentally keep Austin outside the house; it was her intentional and knowing act. Austin was less than seventeen years old. The real question is whether keeping Austin outside until he apologized for a period of approximately an hour under the conditions described above was likely to be injurious to Austin's physical welfare. Although no expert testimony was offered, the finder of fact need not check common sense at the courtroom door. Obviously, if the child was kept outside at a temperature of minus thirty degrees Fahrenheit for a full night, the child would probably be dead or at least severely frost bitten. On the other hand, if the child was kept outside of the home for five minutes when it was seventy-five degrees Fahrenheit on a bright sunny day, it is not likely that a thirteen year old child would be injured. It is hard for the Court to preciously define a line in between those two examples, but in this Court's opinion, it is likely to be injurious to a thirteen year old's physical welfare if the child is outside for an hour in forty degree weather dressed only in a t-shirt, pajama bottoms and socks.
The Court now turns to subdivision (2) of Endangering the Welfare of a Child. As noted above, an individual is guilty of endangering the welfare of a child when being a parent, she fails to exercise reasonable diligence in control of the child to prevent him from becoming a neglected child as that term is defined by Article 10 of the Family Court Act. Article 10 of the Family Court Act defines a neglected child as, among other things, a child less than eighteen years of age whose physical condition is in imminent danger of becoming impaired as a result of the failure of the parent to exercise a minimum degree of care in providing the child with adequate clothing, adequate shelter or proper supervision. See, FCA § 1012(f)(i).
A number of Courts have found that locking a child outside constitutes neglect under Article 10 of the Family Court Act. See, In Re: Portret M., 47 AD3d 424, 849 NYS2d 239 (3d Dep't 2008) ("the Respondent neglected the older child on one occasion by locking her outside of the home ..."); In Re: Debraun M., 34 AD3d 557, 826 NYS2d 76 (2d Dep't 2006) ("the Family Court's findings of neglect based upon the father's failure to provide proper supervision and guardianship, by locking out the older child from his home are supported by a preponderance of the evidence");and In Re: Scott M., 284 AD2d 589, 725 NYS2d 444 (3d Dep't 2001) (affirming the finding of neglect based upon, among other things, "an incident where, to discipline him, [the mother] locked one of the boys outside her residence, when he was wearing no coat and the temperature was in the 30's ...").
Although Ms. LaDieu did not lock Austin out of her house, she in effect created a condition and allowed that condition to continue for an hour which keep Austin outside of her house without proper clothing. Indeed, it was only Austin's acquiesce to Ms. LaDieu's demands that permitted him to come inside from the cold. There is no telling how long Austin would have stayed outside had he not apologized. In the Court's view, whether or not Austin engaged in any behavior that warranted punishment is irrelevant, and whether or not it was appropriate for Austin to apologize to his mother is irrelevant. Assuming, without finding, that Austin did engage in punishable conduct that warranted an apology, a parent cannot engage in a crime against a child and then claim as a defense to the crime that she was justly punishing the child. Punishment, whether just or not, cannot include criminal behavior.
THEREFORE, IT IS HEREBY
ADJUDGED, that on April 10, 2009 Diane LaDieu willfully violated the terms and conditions of her probation by committing the crime of Endangering the Welfare of a Child as that crime is defined under both subdivision (1) and (2) of Penal Law § 260.10; and it is therefore
ORDERED, that the Clinton County Probation Department prepare a pre-sentence report; and it is further
ORDERED, that this matter is scheduled for re-sentencing on September 28, 2009 at 1:30 p.m.
SO ORDERED.