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When It’s Not Just an Accident

By – Shannon O’Brien, Assistant Prosecuting Attorney Oakland County Prosecutor’s Office, Juvenile Justice Division

Accidents can happen. Certainly, the advice provided to parents by their pediatrician with regard to sleeping arrangements for their infant assists with preventing the harm that may result from unsafe practices, such as cosleeping; excessive bedding in a crib; placing babies on water beds or fluffy bedding that can obstruct airways; and facedown positioning. But when does parental negligence that results in a child’s death due to unsafe sleeping practices become subject to the scrutiny of law enforcement, and a criminally chargeable act? Parents can be charged criminally with serious offenses, including Manslaughter, when negligence in arranging a baby’s sleeping practice can be defined as “reckless” within the meaning of the criminal code, and death results.

The decision making of the prosecutor faced with such a charging decision turns on the evidence presented by the investigation, and is unique to each case based upon the evidence presented. The presence of certain factors, however, can be more likely to persuade a physician, a medical examiner, a law enforcement officer, a prosecutor, and ultimately a jury, that a baby’s death or injury was not merely an accident, but rather the result of a reckless act by a parent.

The scenario that may give rise to a criminal charge often includes a co-sleeping arrangement with a parent, paired with another variable: use of alcohol, marijuana, other illegal drugs, or prescription medication by the parent.
Substance use or abuse by a parent may also be a factor in an evaluation for reckless decision making when placing a child to sleep in a cluttered crib, on an unsafe surface, or in excessive bedding. Should death or harm result, a criminal investigation may commence. At least one case exists in Michigan where a mother co-slept with two of her infant children at different times, and both of those children died from resulting positional or compression asphyxia. Mother’s knowledge of what had happened to her first infant and the cause of that infant’s death was one compelling factor in the determination for the criminal charge that resulted when her second baby died.

Children cannot speak for themselves. Certain circumstances of reckless conduct by parents in arranging for their child’s sleep merit review by Child Death Review Teams, law enforcement, and the medical community in order to assure the protection of that child’s siblings, and to assure justice for the child that died.