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A mother's loss and a misused law

I grew up as the oldest of three children. As my parents were avid bridge players and theatergoers, by the time I was 11 years old I was occasionally enlisted to care for my brother and sister. Some might argue that an 11-year-old isn't mature enough to handle this type of responsibility, but I was. Some kids are older than their years.

Those experiences came to mind when I heard about the tragic case of Kim Brathwaite. The single mother left her two children, 9 and 1, alone one night because the babysitter didn't show up and she needed to get to work at a Brooklyn McDonald's. She kept in regular contact with her daughter by phone. But later that night someone set fire to the house where the family rented a basement apartment. The children perished, and Brathwaite has now been charged with recklessly endangering her children. She faces up to 16 years in prison.

Prosecutors have wide discretion when it comes to charging parents for leaving their children home alone. Most child endangerment laws have no age cutoffs that would provide some direction, so parents are left to navigate using their own judgment. Then, when something does go wrong _ even if the result would have likely been the same had an adult been present _ publicity-seeking prosecutors may go on the attack.

Today, the criminal law is used as an old school marm with a poised ruler, ready to smack parents for the wrong answer. Brathwaite undoubtedly made a complex calculation when she chose to keep her job rather than stay home that night. She must have thought, in the long run, choosing work would be better for her family's welfare. It might not have been everyone's choice in her situation, but it certainly wasn't one for the government to second -guess.

According to the the nonprofit research group Child Trends, more than 3-million children under 13 in the United States are left alone regularly for at least a few hours each week. And higher-income children are more likely to be left in self-care than those from low -income families, even controlling for levels of employment. These parents have made a judgment about the maturity level of their children. But with no legal parameters, they are playing Russian roulette with prosecutors.

In the Nov. 3 issue of the Nation, Barbara Kingsolver writes romantically of her childhood growing up on a Kentucky farm. At 11 she was driving the truck through the fields as others heaved baled hay onto the truckbed. One has to wonder, had there been an accident, would her parents have faced incarceration?

I doubt it, back then. What has changed since the now 48-year-old Kingsolver was a child is that America has drifted toward an ever expansive view of childhood. Where once young people typically married right out of high school and started a family of their own soon after (if not before) , today marriage and child bearing are delayed often into one's 30s _ a trend I heartily support. Oddly, though, what has gone hand-in-glove with this is the adult-child phenomenon. Without the financial and cultural responsibilities of a family, it appears the psychological lags behind as well. At 18, the age of majority, many young adults are still playing depend ent.

Legally, 18-year-olds may be old enough to enter into binding contracts, be sent off to war and make every judgment about their own life except _ unfairly _ whether to drink a beer. But society at large no longer routinely views them as grown and responsible.

Remember the tragic case of Louise Woodward, the 19-year-old British au pair of little Matthew Eappen? Woodward was convicted of manslaughter in 1997 after 8-month-old Matthew died of a brain injury, possibly from being fatally shaken. For weeks surrounding the trial the news was full of condescension over the decision of Matthew's parents _ Deborah Eappen mostly _ to leave him in the care of an inexperienced 19-year-old.

At the time I remember wondering why anyone would think it is a negligent act to leave children with someone 19 years old. Virtually anyone that age has the capacity to competently take care of a child.

Yet 19 is apparently no longer what it once was. Even some college campuses have started informing parents when their adult children engage in binge drinking. Would college students of the 1970s have stood for this kind of nosy supervision?

When someone 19 is still considered in need of parental protection and nurturing, it isn't surprising that leaving a 9-year-old at home is viewed as a capital offense. But a prosecutor who would go after a struggling mother who just lost her children in a fire, when all she was doing was trying to keep food on the table, has some growing up to do herself.