Earlier this year the Court of Appeals upheld a lower court's determination that a non-parent contributed to the delinquency of a minor by helping a precocious 15 year old get a tongue piercing without the consent of a parent or legal guardian consent. See State v. Harla Webb, 2013-NMCA-027. At the same time, however, the Court reversed Webb's conviction for child abuse by endangerment because there was no evidence that the non-parent's "conduct created a substantial and foreseeable risk to [Child] of which" Webb should have been aware.
The non-parent, Webb, had taken the child along with her own children to a tattoo studio in Ruidoso, New Mexico. Child told non-parent that she had her own parent's consent, and child had money for the piercing. The non-parent signed a parental Release Form that stated "A person may not perform a piercing on a minor without the consent of the minor's parent or legal guardian, and an establishment may not perform a piercing on a minor under the age of 18 unless the minor is accompanied by an adult. I authorize the piercing described to be performed on my child."
Webb testified that she believed child had parental consent since she had the money for the piercing. She also testified that she signed the Release Form and "didn't think it was that big of a deal." The tattoo studio owner testified the he would not have pierced the child had he known Webb was not related to the child.
Ultimately, we know something went wrong, or there would not have been a legal case about it. Due to an unknown penicillin allergy, Child fainted after the piercing, causing her to knock out one tooth and damage several others. Thereafter, Child required three root canals and four sets of temporary teeth, and still needs additional treatment.
However, the Court reasoned that "it is not the endangerment and not the resulting injury that constitutes the offense," but rather an actual or imputed foreseeability of danger directed toward the child[]." Here, as the tattoo studio testified, the only foreseeable risk was due to infection, not allergy to penicillin.
If you are interested in child-related
mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at
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