September 01, 2013

Children Not Neglected When 14-Year-Old Sibling Babysat

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

In re Ang. P., 2013 WL 3821006 (D.C.).

Where mother had prescription pain medication due to injuries that resulted in her sometimes being incapacitated, 14-year-old sibling was able to supervise sufficiently such that younger siblings were not neglected where she knew how to cook, bathe her siblings, and do other chores.

Mother had a car accident which resulted in a herniated disc and chronic back pain. Subsequent car accidents aggravated the condition resulting in her being permanently disabled. She received daily services of a home health aide. 

In August 2010, mother’s adult son called for an ambulance when she complained of numbness on her left side. She was found to have taken too much of her pain medication. 

The agency received a hotline report at that time alleging a younger child had been left home alone. However, when the police arrived, they found her adult brother was present. 

An agency caseworker investigated the next day and returned several times during the month. During the investigation, the worker found the mother was sometimes falling asleep during the day, there were pills accessible to the children, and the home was cluttered but there was adequate food. The worker described mother as uncooperative when she would not agree to a safety plan or release of her medical records. One child also reported that her mother choked her twice during the last year leaving marks. 

A neglect petition was filed with the court with a recommendation for removal. 

There was conflicting testimony from the children at the hearing about whether the younger children were ever left unsupervised. A caseworker from a previous incident also testified that the children were not current on immunizations and were not getting regular checkups, the mother was late on utility bills, and the mother sometimes did not get the children to school on time. The judge also observed the mother fall asleep in court. 

The judge found the choking incidents, late immunizations, bills, and school issues were concerning but did not rise to abuse or neglect. However, the judge found the children neglected due to the mother’s periodic unconsciousness due to her medication and lack of a formal agreement for an adult to supervise the children when she was incapacitated. 

The mother appealed to the District of Columbia Court of Appeals. 

The court of appeals noted the record showed that at a minimum, despite mother’s physical condition, the five-year-old child was being supervised by the 14 year old and at other times by an adult sibling. According to agency policy, a 12 year old of appropriate maturity may babysit younger children. Here, there was evidence that the youth was able to do chores, cook small meals, bathe her sister and get her ready for school. 

The agency argued on appeal that the other conditions, immunization, late bills, and school tardiness also contributed to the neglect finding. The court of appeals held that the trial court expressly found that those were not sufficient for neglect. Even if the trial court had relied on those facts, failing to be current on immunizations did not meet the standard for neglect. While chronic school tardiness or absences might support a neglect finding, in this case the child only missed a nonmandatory pre-k class. 

Based on the above, the court of appeals remanded the case with instructions to vacate the neglect order.