The Legal Contours of Child Endangerment

Child Endangerment In Ohio

Could You Be Legally Charged With Child Endangerment Or
Child Abuse?

Adults who care for children have a legal obligation to ensure that those children avoid unreasonably dangerous situations. Failing to adequately protect a child may result in the caregiver being charged with “child endangerment” or “endangering the welfare of a child.”

Examples of child endangerment may include:

• Driving while intoxicated with a child in the vehicle
• Leaving a child alone and unsupervised with available dangerous weapons
• Leaving a child unattended  in an unsafe area or vehicle
• Hiring a person with a known history of sexual offenses  to supervise a child
• Leaving a young child unsupervised or in the care of another young child
• Providing drugs or alcohol to an underage driver
• Opting for spiritual healing rather than conventional medicine when a child’s life is in danger
• Failing to report suspected child abuse
• Domestic violence episodes that take place in front of children

The Supreme Court of Nebraska recently had the opportunity to explore the contours of this concept in State v. Mendez-Osorio, 297 Neb. 520 (2017). The case revolved around a domestic incident between defendant Abel Mendez-Osorio and his partner Katia Santos-Velasquez. Santos-Velasquez testified that “from the bedroom door, she observed Mendez-Osorio sharpening his machete. Santos-Velasquez testified that Mendez-Osorio said to her, "this machete, I want it for you" and that he came toward her and told her he was going to kill her. She testified that she felt threatened and afraid.

Without pausing to put on shoes, Santos-Velasquez picked up her two youngest children from the home’s larger bedroom and fled the home to seek help. Her third child was asleep on a couch in the living room, and she did not have time to bring him. Santos-Velasquez testified that she was concerned for the safety and well-being of her children, "[b]ecause if he was thinking of doing something to me, he was going to do it to the children too." She was especially concerned for the child she left behind.”

Does Endangerment Of Child Mean Child Abuse?

The court reasoned that the relevant statute states in relevant part, "A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be: (a) [p]laced in a situation that endangers his or her life or physical or mental health." The court wrote:

“We have previously considered §28-707(1)(a) and stated that under that section, "’endangers’ means to expose a minor child’s life or health to danger or the peril of probable harm or loss." State v. Crowdell, 234 Neb. 469, 474, 451 N.W.2d 695, 699 (1990). We have further stated that the purpose of criminalizing conduct under the statute is that where "’a child is endangered, it may be injured; it is the likelihood of injury against which the statute speaks.’" Id. at 475, 451 N.W.2d at 699 (quoting State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981)). Although courts strictly construe criminal statutes … we have recognized the breadth of conduct addressed in §28-707(1)(a) and have stated that "[a]s a matter of practicability for general application, child abuse statutes, by virtue of the nature of their subject matter and the nature of the conduct sought to be prohibited, usually contain broad and rather comprehensive language." State v. Crowdell, 234 Neb. at 474, 451 N.W.2d at 699.”

Accordingly, the court held that Mendez-Osorio’s conviction was supported by the evidence.

Child Endangerment Charges Will Depend Upon The Specific Circumstances

Other states have similar statutes comparable to Nebraska’s, articulating their resolve to criminalize child abuse that results from conduct which exposes a child to harm despite the fact that the child was not the direct object of the defendant’s behavior.

For instance, the Supreme Court of Delaware, in Mubrouca Allison v. State of Delaware, 148 A.3d 688 (2016), held that the “child endangerment statute provides that a person is guilty of endangering the welfare of a child if she has assumed responsibility over the child and "[i]ntentionally, knowingly or recklessly acts in a manner likely to be injurious to the physical, mental, or moral welfare of the child." It held that “an ordinary person could easily understand that leaving two young children alone in an unlocked car in near triple-digit heat for at least fifteen minutes with the windows almost rolled up could be "injurious to the physical, mental, or moral welfare" of the children.”

Like false allegations of child abuse, false allegations of child endangerment are illegal. In Colorado, for instance, a person whom the court finds has brought a motion that is “frivolous, substantially groundless, or substantially vexatious” may be required to pay reasonable attorney’s fees and the costs of the opposing party (C.R.S. 14-10-129(5)).

Child endangerment charges are highly fact specific. A legal analysis of sufficiency of evidence supporting a child endangerment conviction will depend upon the specific circumstances of each case. Human service workers and others who believe they have encountered child endangerment, and individuals who have been charged with child endangerment, should seek the advice of an experienced attorney. The attorney should be able to discuss what options are available under the circumstances.

PUBLISHERS NOTE:

In Ohio, child endangerment includes abuse, torture, corporal punishment, forcing or allowing the child to pose in sexually oriented matter, or allowing the child to be in the same piece of property where drug manufacturing or transactions may be occurring, and also includes driving a motor vehicle while under the influence. ORC § 2919.22. Ohio’s child endangerment laws apply to children under 18 years of age, as well as to mentally or physically handicapped persons under 21 years of age.

Persons convicted of child endangerment face penalties ranging from first degree misdemeanors to a second, third, fourth, or fifth degree felony, depending on the allegations and the facts revolving around each case. Child endangerment charges have other impacts that may substantially affect the accused’s life, such as difficulty finding and keeping a job, social ostracization, and a permanent mark on their record.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at dpollack@yu.edu This article, “The Legal Contours of Child Endangerment” originally appeared in Policy & Practice, August 2018, 32 & 41.

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