State v. Nicholas M. Gimino, 2012AP1498-CR, District II/IV, 3/7/13 (unpublished); case activity.
While this decision is not recommended for publication, it highlights a very touchy subject–when does conduct many parents engage in rise to the level of physical abuse of a child? The answer may surprise you.
Here’s what happened. Gimino took his 2-year-old daughter for a ride on a motorized go-kart having no sides or roof. He says he put a seat belt on her, but not a helmet or other protective gear. As Gimino turned a corner, his daughter was thrown out of the go-kart and sustained road rash on the left side of her body and a puncture wound on her right leg. Gimino carried his daughter home, washed her wounds, applied an antibiotic, administered Motrin, and checked her throughout the night to make sure she did not have a concussion. Initially, he did not call his daughter mother due to restraining orders between the two. He did call her aunt (and ultimately the mother herself) and told them that the child was injured by falling off of her bike. Later, he admitted that the injury occurred when the child fell from the go-kart.
The State charged Gimino with 2 counts of recklessly causing harm to a child under Wis. Stat. § 948.03(3)(b). The first count was based on the fact that Gimino took his daughter for a spin on the go-kart. The second was based on the fact that he treated his daughter’s injuries at home instead of taking her to the hospital. After a bench trial, the court convicted him on both counts. On Postconviction and appeal, Gimino presented and lost the following arguments.
Sufficiency of the evidence
As to the go-kart count, the court of appeals held:
This evidence is easily sufficient to support Gimino’s conviction. It shows that he failed to properly restrain a very young child in a vehicle with open sides and then drove dangerously fast around a curve, causing B.G. to fall out and sustain serious injury. This conduct created a situation of unreasonable risk of harm and demonstrated conscious disregard for B.G.’s safety. (Slip. op., ¶ 14).
As to the “failure to seek medical attention” count, the court of appeals held:
As is readily apparent by now, the evidence supports a finding that B.G. was ejected forcefully from the go-kart onto hard pavement. The risk of an internal head injury or other internal injury is obvious. And, as to B.G.’s visible injuries, Gimino plainly created the unreasonable risk of infection and needless additional pain. Dr. Saunders testified that, due to the type of accident, there was the potential B.G. had suffered a closed head injury, a fracture, or infection if her wounds had not been properly cleaned. Even Gimino evinced an awareness of the risk of a possible closed head injury because he asserted he woke B.G. up throughout the night to make sure she did not have a concussion. (Slip. op., ¶ 21).
The court noted that Gimino had initially lied to 2 people about the cause of his daughter’s injuries and that B.G.’s mother testified that he didn’t seek medical treatment because he did not want to get into trouble for having B.G. in a go-kart. Looking at the evidence in the light most favorable to the State, the court found sufficient evidence to convict Gimino of recklessly failing to seek medical treatment for his daughter. (Slip. op., ¶ 25).
This holding opens a can of worms. The statute at issue, Wis. Stat. § 948.03(3)(b), requires proof that the parent’s conduct “created a situation of unreasonable risk of harm to and demonstrated a conscious disregard for the safety of the child. See Wis-JI-Criminal 212. So where exactly is the line between taking your kid on a go-kart without a helmet and a good safety restraint and taking your kid sledding, horseback riding, iceskating, skateboarding or for a short spin on the handlebars of your bike? Looks like a steep and slippery slope toward criminal liability for parents.
Parent’s right to decide care, custody and control of children
Now, there are a number of interesting side issues re bodily harm, admission of expert testimony, ineffective assistance of trial counsel, forfeited arguments, undeveloped arguments, arguments sandbagged in reply briefs and so forth, but let’s get to Judge Sherman’s juicy concurrence.
I accept the inevitability of the majority opinion, given the forfeiture of the issue of parental prerogative to make decisions in the child’s best interest, as noted in the majority’s footnote 7. Yet, I find the prosecution of Gimino for failing to seek medical attention for his daughter so outrageously repugnant, and the potential for future mischief from not addressing it so high, that I am compelled to write separately. (Slip. op., ¶46).
The concurrence cites the fundamental right of parents to make decisions regarding the care, custody, and control of their children. See Troxel v. Granville, 530 U.S. 57, 66 (2000). Noting the absence of authority directly on point, Judge Sherman wrote:
In an admittedly non-exhaustive search, I was unable to find a published state or federal case in which a parent’s conviction for child abuse for not seeking medical attention was upheld on appeal, where the injuries or illness were not life-threatening. (Slip. op., ¶ 53).
[I]n the interest of providing guidance for future prosecutorial decisionmaking, I cannot refrain from criticizing the decision to bring the second charge in the first place. The prosecution of a parent for failure to provide medical care where the injuries are relatively minor and the only issue is how best to manage the child’s pain and prevent infection, both matters which do not present serious danger to the child, is overreaching. See id. It is also against the great weight of both precedent and practice. (Slip. op., ¶ 56).
Hmmmm. A little forfeiture never stopped an appellate court from addressing a legal issue that it wanted to reach. See State v. Kaczmarski, 2009 WI App. 179, ¶7, 320 Wis. 2d 811, 772 N.W.2d 702. Seems like the court sought to avoid the tough, substantive issue highlighted by the concurrence. A variation of the issue, involving a parent’s use of prayer to treat a child’s fatal illness, is pending in SCOW right now. State v. Leilani Neumann, 2011AP1105-CR.
