“Endangering Children” May Not be What You Think – and Hopefully it Won’t Take a Trial for You to Find out.


In Ohio and in most if not all other states, it is a crime with serious punishment potential to unnecessarily put a child in risk of harm – as it should be.  In Ohio this is known as Child Endangering, Endangering Children, or Child Endangerment.  Parents (and others in the role of a parent, known as “in loco parentis”) have been charged in various states for things ranging from refusing to get medical care due to religious or other personal beliefs, to outright abuse of a child.

But there is much room for discussion about when a parent’s legitimate exercise of their role as parent, their fundamental constitutional right to parent their own child, crosses a line from legitimate parenting to criminal acts.

In Ohio, Endangering Children, Ohio Revised Code 2919.22(B), can be charged in several ways, including more clear and obvious accusations of persons who:

— “Abuse” or “torture or cruelly abuse” a child;

— “Administer corporal punishment or other physical disciplinary measure,” or “physical restraint” but “in a cruel manner or for a prolonged period,” which is “excessive” and “creates a substantial risk of serious physical harm;” or

— “Repeatedly administer unwarranted disciplinary measures,” where there is a “substantial risk” that the measures will “seriously impair or retard the child’s mental health or development”; or

— Involve the child in in some illegal sexually oriented or nudity oriented matter (what constitutes child pornography, generally);

— Allowing a child to be within a certain distance of drug manufacturing activity;

— Driving under the influence with a child.

These acts all seem pretty obvious, that no reasonable sensible person, much less a parent, would do, and if they did, would be a crime.  Prosecuted cases in Ohio have included the worst conduct one can imagine, including in a reported case, a parent essentially “branding” a child with hot scissors, and another parent just watching and allowing it.  State v. Sammons, 58 Ohio St. 2d 460, 391 N.E.2d 713 (1979), which can also be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/2/2011/2011-ohio-4296.pdf

These offenses in Ohio can be punished (depending on the circumstances and the result) can be punishable as a first degree misdemeanor (punishable by up to six months in jail and a $1,000.00 fine), to high level felonies punishable by lengthy prison sentences.

There is another form of Endangering Children though that is less clear.  Ohio Revised Code 2919.22(A) also makes it illegal to “create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support.”  There is a stated exception for a parent or custodian of a child who “treats the physical or mental illness or defect of the child by spiritual means through prayer alone, in accordance with the tenets of a recognized religious body.”

Prosecutions under this section, which is obviously not very specific, have included neglecting a child – not attending to proper food, clothing, shelter, or medical or emotional care.  Such a case was State v. Daniels, 61 Ohio St. 2d 220, 400 N.E.2d 399 (1980), which can be found at:

http://www.leagle.com/decision/198028161OhioSt2d220_1239/STATE%20v.%20DANIELS

So how does a parent know though when something they do, that does involve some risk, is legal, as opposed to illegal?  What is a “substantial risk” to the health or safety of a child?  What about parents who sign kids up for football – which has an obvious risk of anything from bruises to broken bones and these days repeated concussions and other brain injuries?  What about martial arts or wrestling?  Soccer?  Boating, camping, hiking?  Shooting activities (hunting, firearms and archery)?  Rollercoasters?  Skating and skateboarding?  Horseback riding?  Even swimming?  Each of these activities involves a risk of harm, potentially serious harm.  For that matter, going outside, to work, to school, getting in a car and going out on the public roads, involves a risk, sometimes substantial risk.  Who gets to decide when it becomes “substantial” and therefore illegal?  There is a constitutional right to not be charged with something that is so vague an ordinary person can’t know when it is illegal to do it, or when the illegality of it is up to the subjective opinion of police officers, prosecutors, or judges; or when the definition of the crime is so broad as to include legal activities in the definitions of illegality.  This is known as the vagueness or overbreadth doctrine, and is protected both by the First Amendment and the Due Process clauses.  A discussion of these rights is in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), which can be found at:

https://www.law.cornell.edu/supremecourt/text/408/104

Courts in Ohio have imposed limitations on the broad wording of “a substantial risk” to a child’s health or safety.  These include:

— Including in the definition of the offense that the person must have acted “recklessly” in creating the substantial risk, which means “with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.” (Ohio Revised Code 2901.22(C)).

— “Substantial risk” has also been defined as “a strong possibility, as contrasted with a remote or even a significant possibility that a certain result may occur or that certain circumstances may exist.”

— In addition, a court (or jury) is not permitted to “make an inference upon an inference in order to transform a speculative risk into a substantial risk” (meaning drawing an inference or conclusion from one fact, and then inferring another fact from that inference – “if that happens, this might also happen”).  There must also be “some evidence beyond mere speculation as to the risk of harm that could potentially occur due to a single imprudent act.”

Discussions of these added limitations to the offense can be found at State v. Hughes, decided by the Ohio Third Appellate District, where a parent was charged (and eventually convicted of Child Endangering) for  leaving his 5-year old alone in a car, with the air conditioning on and with a cell phone, while in a Walmart for 27 minutes.  Although the father was convicted at a trial, the court of appeals reversed the conviction (with one of the three appellate judges disagreeing), because the conduct did not meet the required standards.  The case can be found at:

http://www.sconet.state.oh.us/rod/docs/pdf/3/2009/2009-ohio-4115.pdf

So the question is left open: when (and who gets to decide when) it is a crime where a parent engages with their children in what one parent might think is entirely appropriate recreational or sports activity, that involves some risks, but that someone else (a police officer, a prosecutor, or even an opposing parent) thinks is too dangerous?  Some Ohio courts have found the statute to be unconstitutionally vague or overly broad because of that question, but others have not.  It is not clear.  So in Ohio in some cases it might mean a judge or a jury must make that decision, and a parent can be brought in to court to defend their decisions as what is not too much risk in recreational activities.  A parent could have to choose between not doing something fun and maybe entertaining or even enriching or character-building for a child, in fear of being prosecuted because someone thinks it’s too dangerous.  Many very common recreational or sports activities could legitimately be argued to be too much of a “substantial risk” to the health of the child, and it is “reckless” for a parent to let the child do those.

For one person, these limitations on the offense did not keep him from being accused and charged and tried.  The dilemma for a parent was recently tested in a courtroom trial for such a parent, in the context of off-roading and 4-wheeling.  The case involved a single separated father of 4 and 7 year old sons.  In the past the entire family had been avid off-roading and 4 wheeling participants.  Each child had their own 4 wheeler at each parent’s home they rode by themselves.  They had also gone to a local festival where they rode Jeeps and other ATV’s through mud and obstacle courses, with the kids in the vehicles.  Police attend and watch.

This time Dad took the children in his Jeep, which had modifications for off-roading (higher suspension, larger tires) to a local off-road wilderness area that they had gone to together before, as a family.  The area has a creek bed with various stages of water, rocks, and rough and not-as-rough areas.  The kids were buckled in, the 7 year old in front, the 4 year old in back with a booster seat.  Dad had the two front doors off the Jeep.  Although there is some dispute about what the riding in the area was like, it included slow driving but on bumpy surfaces and water around a few inches to maybe around a foot deep – not up to the axles even.  There was some dispute about how “rough” the water was.  No accident happened, no one was injured.

The other parent found out and objected to the activity, expressing concern that it was too dangerous and something terrible could happen.  Local police expressed the opinion that due to the area, something bad (an accident, breakdown, roll-over, etc.), was likely to happen, and if it did, it would be difficult or impossible for emergency personnel to get to the area.  So a prosecutor approved Child Endangering charges, and the father retained counsel, and chose to defend the case in court and in front of a jury.

The case tested the extent of what is not enough or too much risk.  The analogy was made to other activities, where yes something bad could happen.  After all the prosecution’s evidence was presented, the Judge applied the principals of when a risk is “substantial” enough, and not based only on “remote” or “even significant” risks, and not based on mere speculation or the prohibited “inference on an inference” – too many “ifs” before the harm could happen (“if” the Dad did something, and then “if” that resulted in an accident, and then “if” emergency crews were needed, then it would be a problem).  Under that evidence, the Judge found that there was not enough evidence and dismissed the charges, so the jury never had to decide it.  The jurors interviewed after agreed that was the correct result.

This case can be looked at in several ways.  It could be argued that the law is too lenient and the court allowed too much danger for children.  It could be argued that it is the correct application of constitutional and criminal law and that a parent can’t be punished for conduct, even if risky or even irresponsible, if not certain enough to actually result in harm.  As one court described the policy on the law (in the context of leaving the child in the car at Walmart):

“However, simply because Hughes made an irresponsible parenting decision does not mean that his conduct rises to the level of a criminal offense, deserving of fines and possible imprisonment. It is not the function of the criminal justice system to invade the sacred right of parents to raise their children as they deem suitable and proper, and police officers and prosecutors should exercise the appropriate discretion in deciding whether a parent’s conduct crosses that thin line between bad parenting and criminal culpability. ‘We, as a society, cannot [criminally] punish parents for every error in judgment, even if a child is injured, under a theory of strict liability.’” (Quoting the Hughes case above).

What is certain though is that this particular parent found himself in a courtroom in front of a jury and judge, defending himself and his parenting, for choosing a certain kind of “fun” for him and his children, versus the opinion of a police officer, a prosecutor, and an opposing parent.  Some could also argue he should not have been required to do so, but it doesn’t change that he did.  Fortunately for him, he was also acquitted.  The hope (always) is that lessons were learned by all involved.

This Blog is not intended to be legal advice on any matter, for any person, or for any particular case, and is my opinion on the subject matter under discussion and is based on my admission to practice in State and Federal courts in Ohio and Kentucky only.  Many of the opinions expressed will have no application at all in any other jurisdiction other than the one discussed.  Each person’s situation is different, and a personal consultation with a qualified attorney in the area of practice you are concerned about is necessary for a competent evaluation of your rights and obligations.  Internet reading is never a substitute for an actual consultation with a competent lawyer.  More information about my practice and background can be found at:

http://www.eaglelawoffice.com

I hope readers find this information helpful and interesting.

Thomas G. Eagle, Attorney, licensed to practice in State and Federal courts in Ohio and Kentucky only.

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