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Sat Oct 18, 2:55 PM ET |
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By NINA BERNSTEIN The New York Times
Last Sunday, as her night shift neared, Kim Brathwaite faced a hard choice. Her baby sitter had not shown up, and to miss work might end her new position as assistant manager at a McDonald's in downtown Brooklyn. So she left her two children, 9 and 1, alone, trying to stay in touch by phone.
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It turned out to be a disastrous decision. Someone, it seems, deliberately set fire to her apartment. Her children died. And within hours, Ms. Brathwaite was under arrest, charged with recklessly endangering her children.
The investigation is continuing, and an arrest in the arson may soon overshadow the criminal charges against Ms. Brathwaite, who is not a suspect in the fire, investigators say. But she is now facing up to 16 years in prison for a decision that, surveys and interviews with experts suggest, cuts uncomfortably close to some choices made every day by American families.
Nationwide, parents themselves report leaving more than 3 million children under 13 some as young as 5 to care for themselves for at least a few hours a week on a regular basis, according to a recent study by Child Trends, a nonprofit research organization in Washington, D.C., that analyzed census information and other data.
And so the Brooklyn case highlights a much broader debate, one with few fixed legal guideposts. For state statutes typically set no age under 18 when a child is legally considered old enough to stay home alone. Thus parents are left with many case-by-case judgments, and prosecutors with vast discretion when something goes wrong.
The cases that surface are almost always the notorious failures, like the story of the 9 and 4 year-old cousins in Little Ferry, N.J., who went joy-riding in a leased S.U.V. or the former welfare mother in Cuyahoga County, Ohio, who was afraid to lose her night job processing checks at a bank, and instead lost her unsupervised toddler in a fall from a ninth-floor balcony.
But how those cases are treated, and whether they result in prosecutions, can vary widely. Several years ago, after two grand juries in Santa Fe, N.M., refused to indict parents when they had left young children at risk one child was left freezing in a car while her father drank in a local bar the local district attorney altered his policy for arresting and prosecuting parents in such cases.
"The grand jury is reflective of a community standard," the district attorney, Henry Valdez, said after his second failed prosecution.
A professor of family law at New York University, Martin Guggenheim, said that the ambiguity in criminal laws touching the "home alone" question made wide discrepancies in the handling of cases inevitable.
"It puts all parents at peril in making parental choices, without warning them that certain choices are forbidden," he said.
Brooklyn prosecutors argue that no matter what, Ms. Brathwaite should not have left her children, 9-year-old Justina Mason and 1-year-old Justin Brathwaite, alone in a basement apartment in the Canarsie section of Brooklyn, especially children as young and vulnerable as hers.
Both had sickle cell anemia, a chronic blood disorder that often requires hospital care. And though prosecutors concede that Justina and her mother were talking by phone as late as 10 p.m., when the baby sitter had still not arrived, such conversations fall far short of the adult supervision needed in an emergency.
"She knew they were at risk," said Ama Dwimoh, the chief of the Crimes Against Children Bureau in the Brooklyn district attorney's office. "I'm not trying to do a rush to judgment, but this is why you can't leave kids home alone because it can result in death.
But others, from Ms. Brathwaite's lawyer to researchers of family life, say her case needs to be seen in a broader social context.
She was, they note, a single mother by some accounts quite devoted living a life of complicated choices.
Recently promoted to assistant manager at the McDonald's, Ms. Brathwaite was required to work a rotating mix of morning, midday and nighttime shifts that made reliable child care nearly impossible to keep on her modest wages. Nor could she leave early, since she was responsible for securing the day's receipts. When desperate calls to the missing sitter and a neighbor went unanswered, her lawyer said, she was afraid of losing the job that supported her children.
"She is guilty of nothing more than being a single mom working a 12-hour shift," said her lawyer, Douglas Rankin.
Richard Wexler, the director of the National Coalition for Child Protection Reform who has compiled research on children left at home, said many parents take similar risks, often because better options are not available. "Although news stories repeatedly say there is `no firm rule' concerning when a child can be left alone, actually there is one," Mr. Wexler said. "It's the rule of fate. If something goes wrong, then you are a bad parent and you will be charged. If nothing goes wrong, you won't."
Ms. Dwimoh, of the Brooklyn prosecutor's office, was not swayed. "Just because everybody does it doesn't make it right," she said. And a spokesman for the district attorney's office, Jerry Schmetterer, argued that tragic results cannot be disregarded.
"The case will be presented to a grand jury and the people of Brooklyn will speak," he said. "But our position is we had to charge two babies are dead."
Of course, the decision by parents whether to leave children alone usually depends on many factors besides age, such as the capabilities of the children, the ability to pay for care, cultural traditions and the perceived safety of the neighborhood.
Linda Gordon, a professor of history at New York University who has written extensively on America's shifting definition of child neglect since the 19th century, said that in an immigrant nation, with wide economic inequalities, beliefs and customs differ.
"This may have been an extremely competent 9-year-old,"` Professor Gordon said, referring to the older child in the Brooklyn case. "There are all kinds of societies where 9-year-olds take care of children. And what would have happened if the mother had been there? It's not so obvious that it would have been different."
The Child Trends researchers found that higher-income children between 6 and 9 were actually more likely than poor children to be left unsupervised for several hours, even after controlling for the fact that the better-off parents were more likely to have jobs.
The authors of the report, "Left Unsupervised: A Look at the Most Vulnerable Children," warned that leaving such children under 13 routinely on their own may put them at risk for injuries and developmental problems. But they also hedged, writing: "Self care is not always harmful. Children typically become more independent as they mature, gradually spending more and more time alone and taking increasing amounts of responsibility."
When unsupervised children become notorious, the legal system may feel extra pressure to hold parents accountable, even when the case did not end in tragedy.
In the case of the child joy riders in the S.U.V. in New Jersey, an elderly pedestrian who was knocked over suffered no lasting injuries.
Lawyers for the mothers of the two cousins said they were hard-working single moms in their 30's who were juggling responsible jobs, one at a bank during the day, the other in a hospital at night. By their account, the lack of supervision was just the result of a misunderstanding with a 22-year-old niece who was also in the patchwork child care mix.
But six weeks later, the children are still in New Jersey foster care while the State Division of Youth and Family Services conducts its investigation. And criminal charges of endangering their children are pending against the two mothers, said Dolores Aretsky, the lawyer for one, last week.
In the Ohio case of the toddler falling to his death, the 23-year-old mother, Tanisha Gill, was charged with involuntary manslaughter for choosing to leave for her job when her baby sitter failed to show up. She had said the child's father promised to "be right over," to watch the sleeping boys, Charles, 2, who died, and his 4-year-old brother. The father denied it.
In the end, a judge placed her on probation for three years after she pleaded guilty to reckless homicide.
Yet in other strikingly similar cases, parents wound up not prosecuted.
In one of the cases in Santa Fe that were rejected by grand juries, an illegal immigrant and mother of seven had gone to work at McDonald's, leaving a 6-year-old daughter in charge of siblings aged 3 and 1. The frightened girl had called 911. But supporters including the sheriff who bailed the mother out of jail saw her as a desperate single mother fearful of deportation who was doing the best she could in poverty.
A district attorney in Greeley, Colo. declined to prosecute Jennifer Farrell, a more affluent mother who left her six children home alone for 17 days while she vacationed in Italy. He found no evidence that the children - aged 6, 8, 10, 11, 12 and 14 - were harmed or faced imminent danger when the single mother left them with a stocked kitchen, a debit card for buying more food, and a list of family friends and relatives to call if they needed help, The Denver Post reported.
Annette Lareau, a sociologist at Temple University who has studied the child-rearing practices of poor, middle-class and affluent parents, said of the Brooklyn case, "You could say this family had very bad luck."
Professor Lareau said that among the well-off families she followed for her new book, "Unequal Childhoods: Class, Race and Family Life (University of California Press, 2003), were a pair on an out-of-town trip to a soccer championship who left two 10-year-olds, two 8-year-olds and a 5-year-old alone in a hotel room while the two sets of parents went out to dinner a mile away.
"They left the kids with cell phones, pizzas and videos saying to each other, `They'll turn us in,' " she recalled. The children did not turn them in, however, and no fire broke out.
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