Michael Haggerty
We see it all too often. A child dies tragically, a death that could be avoided. And then the modern lynch mob, the Facebook lawyers, begin trying the parents. Could they have done something more? Better? How is this not their fault? What about the police?Andthestateagencies who are supposed to protect children? Why didn’t they do something? Before you know it, a family tragedy has the community up in arms.
We saw this recently with a family from Kingston. The mother who suffered from mental illness was becoming increasingly unstable. Reports surfaced that the sheriff wasrepeatedlysummonedto the family home because of violence resulting from her mental illness. Reports also indicate that referrals were made to the Department of Human Services, which conducted an investigation. The father moved with their young son to New Mexico to get away from the insanity, but allowed the mother to visit in order to see their son. Then on the morning of July 10, the father wakes up to the sounds of screaming, and finds his son dying from stab wounds, and finds the mother in another room, with what are reported as self-inflicted stab wounds. The New Mexico authorities charge her with murder, but that’s not enough blood for themob.Howcouldthefather let this woman around his son? Why is he not charged withacrime?Wherewerethe authorities? Why didn’t they DO SOMETHING?
To answer this, we must delve into the law. First, what would the father’s responsibilities be? Under Oklahoma law (this article, written by an Oklahoma lawyer, will not attempt to cover rights and remedies under New Mexico law), the father could not be tried for murder. Oklahoma law requires an affirmative act, not negligence, in order to convict a parent for murder. If a parent allows their child to be abused, then they can be charged with enabling child abuse. The proof requirements for this are stringent; the parent must know or reasonably should know that abuse will result if they leave the child in their situation. Just because abuse occurred does not mean that a parent is liable for allowing that to occur. Thus, in our case from Kingston, the father could be charged with enabling child abuse only if he knew or should have known that allowing the child’s mother in the home would result in the child being injured. This is extraordinarily challenging for a prosecutor, when the mother undoubtedly promised to be on her best behavior if she were only allowed to visit. Likewise, the standards for committing the mother to mental health treatment against her will were daunting. After a series of U.S. Supreme Court decisions from the 1970s, in order to involuntarily commit someone to mental health treatment, the Statemustprovebyclearand convincing evidence that the personisanimminentdanger to themselves or someone else without being committed. Even if a person reaches that standard, their stay in a mental facility is likely to be short. Once that person is nolongeranimminentthreat to themselves or anyone else (essentially, once they are no longer actively threatening to harm others or commit selfharm or suicide), then they must be released. When this legal standard is combined with the practical pressures of always-insufficient resources (a 2016 report shows that Oklahoma had a grand total of 431 psychiatric beds available for its 3.876 million
The Madill Public School district unveiled the new gym last week. The new gym will be used for school and sports functions.
population, about 1/5 of what is considered the minimum necessary) it becomes clear why inpatient stays are often shorter than perhaps they should be.
As for the agency charged with protecting the child, the Department of Human Services, their hands are similarly tied. Not every child who may need it can be placed in a fosterhome-theDepartment is chronically short of foster homes, and foster homes that are available frequently host multiple children. Thus, when a parent who is not abusing the child is available, the Department simply does not have resources to deny that parent the right to retain their child in their home. Legal standards also make this difficult; in order to remove a child, the Department must be able to prove to a judge that the child is in “imminent” danger of being harmed. Withanonoffending parent available, especially one who promises to keep the child safe from an abusive parent, the Department has little choice but to leave the child in that parent’s care.
How can this be? Well, the lack of resources is a chronic issue for both mental health treatment and foster care, and that problem appears unlikely to be solved anytime soon. As for the legal standards, those are by and large a consequence on our freedoms. Parents understandably want the right to raise their children with as little government interference as possible. Likewise, imposing mental health treatment on someone who is not imminently dangerous is unacceptable to a free society. Imposing more stringent limits would arguably keep children safer but would do so at the cost of the freedom Americans hold so dear.
Sometimes bad things happen, and nothing can be done about it. That’s one of the realities of life. The father in our example is going to have to live with the fact that his young son will never grow to adulthood and will have to do so for the rest of his life. It seems like that particular kind of hell is punishment enough for someone in those circumstances, without the Facebook mob baying for his blood.