Parental Discretion

Baby Shelby died in a dresser drawer in a rundown house in Tularosa. The date was Oct. 2, 2003.

The infant's bassinet had broken the day before. Her parents couldn't immediately afford a new one and instead fashioned a makeshift cradle from a pillow, a sheet, a blanket and a drawer. When her father, Julio Chavez, awoke in the morning, he found Shelby had stopped breathing.

Although it could have been sudden infant death syndrome, the medical examiner said it was possible that Shelby had suffocated on the bedding.

After a two-year trial that ended in 2005, Chavez was convicted of three counts of criminal child endangerment for placing Shelby in the drawer and for keeping Shelby and his two other children in squalid living conditions.

The appeal of that conviction was recently decided by the state Supreme Court, which issued a ruling overturning it at the end of June.

In doing so, the court abandoned a 16-year-old standard for evaluating child-endangerment cases, a move criticized by prosecutors as a major setback, but applauded by child advocates as a bold precedent.

The Chavez case was the first time the state Supreme Court considered "filthy living conditions" as the sole basis for a criminal child-endangerment charge. During trial, the prosecution had argued that the house itself was dangerous: Mouse droppings were found in cupboards that also contained dishes, the kitchen and bathroom were covered in mold, dirty laundry was littered around the house, shards of glass and rusty nails were scattered through the yard, and the house did not have running hot water.

Lawyers for Chavez had argued that the conditions—including the dresser-drawer bed—were the result of the family's poverty.

The court overturned the conviction arguing that the state could have and should have done more for the family before resorting to criminal prosecution.

"This is not a case where the children were subjected to physical violence, nor where the parents struggled with addiction and the children suffered as a result," Justice Richard Bosson writes in the majority opinion. "Instead, this is a case where the family struggled with poverty, and our ultimate goal should be to assist, rather than to punish, that status. Had the State intervened in a more meaningful way, the family would have either addressed the home environment or the State could have removed the children to protect their health and safety."

In issuing its recent ruling, the Supreme Court abandoned the 16-year-old evidentiary standard for child-endangerment cases. Previously, prosecutors only had to prove that a defendant's conduct had the "reasonable probability or possibility" of harming a child.

Bosson writes that "possibility" was too vague a standard and could include virtually any parental decision. He further argues that "probability" was too strict a standard, and uses the example of playing a game of Russian roulette with a child to explain why.

"[T]he risk that the child will suffer a lethal shot is only 16.67 percent, less than a statistic probability," Bosson writes. "Yet few would doubt the very real and unacceptable risk of harm to the child."

As a result of the ruling, a prosecutor must now prove that the danger is "substantial and foreseeable," including the gravity and magnitude of the risk of harm, which must be backed up with evidence or testimony.
Chief Deputy District Attorney RoxeAnne Esquibel, who prosecuted the Chavez case, tells SFR the decision is a major setback for prosecutors in child-abuse cases.

"This decision will require the State to present scientific and medical evidence where previously jurors were allowed to rely on their common sense determination that things like mice droppings on dishes, in food and in bedding are potentially harmful to children," Esquibel writes via email.

Criminal child-endangerment convictions often result in separating children from parents, and that's one reason the court's ruling was important, according to Tara Ford, co-director of Pegasus Legal Services for Children.

"We don't want to punish parents or separate parents and children without a solid evidentiary basis to support that kind of drastic action by the state," Ford says. "When there's deficits in parenting, the standard for state action is pretty ambivalent. "

Justice Petra Maes was the court's lone dissenting voice, arguing that putting a 26-inch-long baby in a 29-inch-long drawer was sufficient evidence for a single count of criminal endangerment. However, Maes concurs that the "filthy living conditions" alone did not prove Chavez had endangered his sons.

Brian O'Connell, executive director of New Mexico Child Advocacy Networks, tells SFR the court's decision highlights the need for the government and community to intervene earlier.

"The family was struggling with poverty, and we know that those kinds of struggles can potentially put kids at risk," O'Connell says, noting that the family had been visited by Children, Youth and Families Department workers a month before the incident. "Not to knock CYFD, but it was potentially a missed opportunity for that family.

O'Connell points out the greater problem might be in the community; under New Mexico law individuals are required to report anything they perceive as child abuse or neglect. Child advocacy agencies and organizations can't help if they don't know a problem exists, he says.

"We're not saying a dirty house is a reason to go investigate a family—but if community members think it's bad enough they should call, then they should call," O'Connell says.

COURT ORDERS
Recently, SFR encountered Rep. Brian Egolf, D-Santa Fe, strolling through the Railyard. A man on a bicycle whizzed by with a toddler clinging to his back.

"What's he thinking?" Egolf, a father of an infant himself, exclaimed. "That's child endangerment."

Why? Because the child wasn't wearing a helmet, Egolf said.

The New Mexico Supreme Court wouldn't necessarily agree. Although the New Mexico Legislature has written tough criminal statutes for child endangerment, the court has ruled in case after case that criminal child endangerment is more than just the act of putting a child in danger.

Here's an overview of how the New Mexico Supreme Court has ruled in the past, as the justices determined the difference between criminal behavior and just a lack of common sense.:

Child-Endangerment Convictions Upheld
State v. Castaneda: While intoxicated, the defendant drunkenly drove on the wrong side of a divided highway with four children who weren't wearing seat belts.

State v. Graham: The defendant left marijuana in places accessible to children, including a bud in a baby's crib.

State v. Guilez: While intoxicated, the defendant drove a truck without working tail or headlights into a fence at night. The 3-year-old on board wasn't in a safety seat.

State v. Jensen: The defendant let his teenage neighbor binge drink, smoke cigarettes and view porn in his home, which was soiled with dog and emu excrement.

State v. McGruder: After shooting one person, the defendant pointed a gun at a woman who was standing in front of her child in the line of fire.

State v. Ungarten: Defendant swung a knife at a man whose child was standing right behind him.

Child-Endangerment Convictions Overturned
State v. Clemonts: With three children in the car, the defendant committed several misdemeanor traffic violations while engaged in a low-speed police chase.

Stave v. Massengill: The defendant let a stroller roll outside of his reach. The child was injured when the stroller tipped over.

State v. Roybal: The defendant left a 6-year-old in his car with the child's mother while he conducted a drug deal.

State v. Trujillo: The defendant assaulted the mother of a child, who was on the other side of the house at the time.

State v. Trossman: Methamphetamine ingredients were found in the home where the child lived. However, the child was not witnessed in direct presence of the chemicals.

Santa Fe Reporter