MOST VALUABLE PACKAGES LEFT UNATTENDED DURING HOLIDAY SHOPPING

By Brandon J. Logan | January 1, 2012

Three similar stories last month from Houston involving children left unattended in vehicles highlight outcome disparities for parents in the application and enforcement of child welfare laws.On December 8, 2011, in West Houston, police arrested Karen Hubert, a 43-year-old grandmother, for leaving her two grandsons, ages two and three, alone in her car in a Wal-Mart parking lot. The children were uninjured, but Hubert faces felony charges of child endangerment and up to two years in a state jail facility. Hubert was arrested on the scene and the children were handed over to their mother.{{more}}Just five days later, on December 13, 2011, Harris County deputies responded to a child left alone in a vehicle at a shopping center parking lot in Spring, Texas. Deputies found an 18-month-old boy alone in a silver car and located the boy’s parents, Eastern European immigrants from Azerbaijan in the United States on a temporary work permit. The parents claimed they did not know it was illegal to leave the toddler in the car while they shopped. Deputies advised the parents of the Texas child endangerment laws, but no charges were filed against them.Section 22.041 of the Texas Penal Code provides that a person commits an offense if he intentionally abandons a child in any place under circumstances that expose the child to an unreasonable risk of harm or intentionally, knowingly, recklessly, or with criminal negligence engages in conduct that places a child in imminent danger of death, bodily injury, or physical or mental impairment. The offense is a state jail felony if the person abandons the child with the intent to return and a third-degree felony if the person had no intent to return for the child.Admittedly, a reasonable person could conclude that Hubert’s actions exposed the child to an unreasonable risk of harm or placed the child in imminent danger. However, given the undeniable similarity in the two instances, why was Hubert charged with a felony-level offense and the Azerbaijani parents permitted to leave with their toddler after a short primer on Texas law? Possible relevant factors may include the location , ethnicity , and law enforcement agency , among others. However, few would support a disparity in treatment, no matter the explanation, where the children were exposed to essentially the same risks.One such risk was experienced December 6, 2011, by a two-year-old boy left in a running vehicle while his mother ran into a West Houston convenience store. A man approached the vehicle, opened the unlocked driver’s side door and drove away. The mother claims she never too her eyes off her son, Jermaine, but was unable to intervene in time to prevent the theft. The suspect, a Hispanic male, dropped the child off at a hospital about an hour later, where the child was reunited with his mother. The mother was not charged with an offense.Regardless of the risk, it is a Class C misdemeanor offense to intentionally or knowingly leave a child in a motor vehicle for longer than five minutes where the child is less than seven years of age and not attended in the vehicle by a person age 14 or over. It is likely that, in this last case, the child was left for less than five minutes. Nevertheless, the child was certainly placed in imminent danger and the story could just as easily have ended tragically. I suspect she avoided criminal charges only by virtue of a heart-warming ending and the sentiment that she had already been through enough.Clearly the best practice is to never leave a child unattended in a vehicle under any circumstances. Many will argue that reasonable exceptions exist, and I have had those arguments myself in the last two weeks. Facts such as the length of time the child is left, whether the vehicle is running, the weather, the age of the child and numerous others are offered as reasonable excuses. However, most of these facts are not recognized in the law — leaving wide discretion in the possible application and enforcement of child welfare laws and possible outcomes for parents, as demonstrated by the news stories above.Brandon J. Logan is an Abilene family law attorney dedicated to preserving and defending families, especially in cases involving Child Protective Services. He may be reached at 437-3737 or brandon@browningfirm.com.