N.Y. mother's arrest highlights `home alone' question in U.S.

Children, 9 and 1, die in fire after single parent left them to go to work


On Oct. 12, as her night shift neared, Kim Brathwaite faced a hard choice. Her baby sitter had not shown up, and to miss work might end her new position as assistant manager at a McDonald's in downtown Brooklyn. So she left her two children, 9 and 1, alone, trying to stay in touch by telephone.

It turned out to be a disastrous decision. Someone, it seems, deliberately set fire to her apartment. Her children died. And within hours, Brathwaite was under arrest, charged with recklessly endangering her children.

The investigation is continuing, and an arrest in the arson may soon overshadow the criminal charges against Brathwaite, who is not a suspect in the fire, investigators say. But she could be sentenced to up to 16 years in prison for a decision that, surveys and interviews with experts suggest, cuts uncomfortably close to some choices made every day by American families.

Nationwide, parents report leaving more than 3 million children younger than 13 - some as young as 5 - to care for themselves for at least a few hours a week on a regular basis, according to a recent study by Child Trends, a nonprofit research organization in Washington that analyzed census information and other data.

And so the Brooklyn case highlights a much broader debate, one with few fixed legal guideposts. State statutes typically set no age under 18 when a child is legally considered old enough to stay home alone. Thus parents are left with many case-by-case judgments, and prosecutors with vast discretion when something goes wrong.

The cases that surface are almost always the notorious failures, such as the story of the 9- and 4-year-old cousins in New Jersey who went joy-riding in a leased sport utility vehicle, or the former welfare mother in Ohio who was afraid to lose her night job and whose unsupervised toddler died in a fall from a ninth-floor balcony.

But how those cases are treated, and whether they result in prosecutions, can vary widely. Several years ago, after two grand juries in Santa Fe, N.M., refused to indict parents when they had left young children at risk - one child was left freezing in a car while her father drank in a local bar - the local district attorney altered his policy for arresting and prosecuting parents in such cases.

"The grand jury is reflective of a community standard," the district attorney, Henry Valdez, said after his second failed prosecution.

A professor of family law at New York University, Martin Guggenheim, said that the ambiguity in criminal laws touching the "home alone" question made wide discrepancies in the handling of cases inevitable.

"It puts all parents at peril in making parental choices, without warning them that certain choices are forbidden," he said.

Brooklyn prosecutors argue that no matter what, Brathwaite should not have left her children, 9-year-old Justina Mason and 1-year-old Justin Brathwaite, alone in a basement apartment in the Canarsie section of Brooklyn, especially children as young and vulnerable as hers.

Both had sickle cell anemia, a chronic blood disorder that often requires hospital care. And though prosecutors concede that Justina and her mother were talking by telephone as late as 10 p.m., when the baby sitter had still not arrived, such conversations fall far short of the adult supervision needed in an emergency.

"She knew they were at risk," said Ama Dwimoh, the chief of the Crimes Against Children Bureau in the Brooklyn district attorney's office. "I'm not trying to do a rush to judgment, but this is why you can't leave kids home alone - because it can result in death."

But others, from Brathwaite's attorney to researchers of family life, say her case needs to be seen in a broader social context.

She was, they point out, a single mother - by some accounts quite devoted - living a life of complicated choices.

Recently promoted to assistant manager at the McDonald's, Brathwaite was required to work a rotating mix of morning, midday and nighttime shifts that made reliable child care nearly impossible to keep on her modest wages. Nor could she leave early, since she was responsible for securing the day's receipts. When desperate calls to the missing sitter and a neighbor went unanswered, her lawyer said, she was afraid of losing the job that supported her children.

"She is guilty of nothing more than being a single mom working a 12-hour shift," said her lawyer, Douglas Rankin.

Richard Wexler, the director of the National Coalition for Child Protection Reform who has compiled research on children left at home, said many parents take similar risks, often because better options are not available. "Although news stories repeatedly say there is `no firm rule' concerning when a child can be left alone, actually there is one," Wexler said. "It's the rule of fate. If something goes wrong, then you are a bad parent and you will be charged. If nothing goes wrong, you won't."

Dwimoh, of the Brooklyn prosecutor's office, was not swayed. "Just because everybody does it doesn't make it right," she said. And a spokesman for the district attorney's office, Jerry Schmetterer, argued that tragic results cannot be disregarded.

"The case will be presented to a grand jury, and the people of Brooklyn will speak," he said. "But our position is we had to charge - two babies are dead."

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