When You Are Your Brother’s Keeper

January 13, 2017 10:26 am Published by

A recent New Hampshire Supreme Court opinion is applicable to criminal, juvenile and family law. In the case of In RE N.K., a sixteen year old juvenile, N.K., was found delinquent for endangering the welfare of his four year old brother.

Under New Hampshire law endangering the welfare of a minor is a crime. RSA 639:3 says “a person is guilty of endangering the welfare of a child or incompetent if he knowingly endangers the welfare of a child under 18 years of age or of an incompetent person by purposely violating a duty of care, protection or support he owes to such child or incompetent, or by inducing such child or incompetent to engage in conduct that endangers his health or safety.”

In this case N.K.’s mother worked as a nurse and had to work overnight shifts. She would leave N.K. in charge of monitoring the safety of his four year old brother who generally slept through the night. On the night in question the mother was getting ready to leave and saw some teenagers in a car pulling into the area. She went in and told N.K. not to let anyone in the apartment and that if he did she was have them arrested. She then left for work.

A few hours later she came home to check on her sons and saw a bunch of teenagers run from the house. When she came inside she found all the hallmarks of a party, empty beer cans and a room full of marijuana smoke. She also found N.K. apparently intoxicated. She called the police who arrested him.

N.K. appealed his delinquent finding arguing his brother was never in any actual danger as he slept through the night. The Court disagreed holding that drinking alcohol and smoking marijuana to the point of significant intoxication did “endanger” N.K.’s younger brother because he could have been injured if he had awakened and walked into the room filled with smoke and spilled beer on the floor given N.K.’s inebriated state.

This case is important because there are many divorce or custody cases in which one parent will make allegations that another parent has substance abuse issues. We can expect this case to be relied on by family courts when they consider the safety and welfare of young children who may be left in the care of a parent who regularly abuses substances.

It is also important because it allows one juvenile sibling to be found delinquent for violating a duty of care to his younger sibling even though both are minors and are in the class of people who are supposed to be protected by the law. There are many circumstances in which an older sibling is left to watch a younger sibling. It is easy to envision arguments in family court that accuse one parent of negligently leaving a younger child in the care of an older child when other child care in unattainable.

The take away is that there are a wide array of arguments that a person has violated a duty of care owed to a young child. Violation of that duty can have dire consequences.

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This post was written by Jonathan Cohen

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