Criminal Punishment for Childhood Morbid Obesity, Pennsylvania

Imagine a child comes to you with 
(1) a liver so enlarged that it is seen as a precursor to cirrhosis of the liver;
(2) hypertension; 
(3) respiratory problems to the extent that she requires oxygen at night; 
(4) insulin resistance that places her at a high risk for diabetes; 
(5) sleep apnea; 
(6) knee pain; 
(7) a depressive disorder stemming from social isolation; and 
(8) she spends more than nine (9) hours a day in front of a television or computer screen.  

This child is predicted to live only into her thirties.  All of this stems directly from the child being morbidly obese.  Could someone be punished for allowing this to happen?  Should someone be punished for allowing this to happen?

    1.  What is Morbid Childhood Obesity?

Approximately seventeen percent (17%), or 12.5 million, of American children and adolescents aged two to nineteen years old are at least obese.   Since 1980, obesity prevalence among children and adolescents has almost tripled.  Morbid obesity refers to those who are 50-100% , or 100 pounds, above their ideal body weight or have a Body Mass Index (BMI) of 39 or more.

2009 State Prevalence of Obesity Among Low-Income Children Aged 2 to 4 Years

2007-2009 County Obesity Prevalence Among Low-Income Children Aged 2 to 4 Years

http://www.cdc.gov/obesity/childhood/data.html

Common sense and the following picture should be sufficient to detail the risks of morbid obesity:

 

    
    2. Could this be a Crime?

a.      Duty of Pennsylvanian Parents to Care for their Children

 “[A] parent has the responsibility to provide care, control, and subsistence for his or her child, and a duty to ... support the child. This parental obligation ‘is a positive duty and requires affirmative performance.’” Christianson v. Ely, 838 A.2d 630 (P.A. 2003).  Parenthood is “an active occupation, calling for constant affirmative demonstration of parental love, protection and concern. . . . (A parent) must exert himself to take and maintain a place of importance in the child's life, and must exercise reasonable firmness in declining to yield to obstacles.” Petition of Lutheran Children and Family Service of Eastern Pennsylvania, 321 A.2d 618, 620 (1974).

b.      Civil Intervention

In Pennsylvania, a dependent child is a child who lacks “care or control necessary for his physical, mental, or emotional health, or morals” and may be removed from his or her parents’ custody. 42 Pa.Cons. Stat. Ann. § 6302.  This determination can be based on “conduct by the parent…that places the health, safety or welfare of the child at risk…”42 Pa.Cons. Stat. Ann. § 6302 (emphasis added).  Less than ten years ago, a Pennsylvania court found a child to be a “dependent child” based solely on the child’s morbid obesity. In re D.K., 58 Pa. D. & C.4th 353, WL 31968992 (Pa. Com. Pl. 2002).  The court of In re D.K. determined that D.K.’s mother medically neglected D.K., by allowing the sixteen year old to weigh 451 pounds, despite being only 5’3” tall, and then, despite advice by medical professionals, failed to provide adequate medical care to D.K.  In re D.K., 58 Pa. D. & C.4th 353.  It should be noted that, within only six months of being in the custody of the state, D.K. lost fifty pounds. Id.

c.       Criminal Neglect: Endangering the Welfare of a Child

In Pennsylvania, a parent who “endangers the welfare of a child” may not only lose custody of their child, but may also face criminal sanctions “if he knowingly endangers the welfare of the child by violating a duty of care, protection or support....” 18 Pa.Cons. Stat. Ann. § 4304.  This criminal statute “is to be given meaning by reference to common sense of community and broad protective purposes” for which it was designed. Com. v. Taylor, 471 A.2d 1228 (Pa. Super Ct. 1984).  

A single offense under this statute is a misdemeanor; however, when there is a course of conduct of endangering the welfare of a child, the offense is a felony. Id.   In prosecuting this crime, the state must show that:

1) the accused is aware of his or her duty to protect the child;

2) the accused is aware that the child is in circumstances that could threaten the child's physical or psychological welfare; and

 3) the accused has either failed to act or has taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare.

Com. v. Martir, 712 A.2d 327 (Pa. Super. Ct. 1998).  

Courts throughout the country have found that a child who is morbidly obese can be taken from their parent’s custody; however, there are no cases in Pennsylvania, and very few in the United States, in which those parent have been criminally charged with neglect.  Applying the test for endangering the welfare of a child, as applied in Com v. Taylor, a parent who allows their child to become morbidly obese may be at risk of criminal liability.  First, the parent is clearly aware of their duty to protect their child.   Second, if common sense did not dictate that morbid obesity was dangerous, then a physician most likely has made the parent aware of the danger presented to the child.  Third, liability would seem to swing on what steps the parent has taken to prevent the morbid obesity: anything less than reasonable attempts to help them lose weight would result in criminality. 

    3. Should this be a Crime?

There are three, if not more, situations in which childhood obesity could occur.  First, the parent is taking steps to prevent the obesity, but, for some reason, can not help the child become healthy.  It seems unlikely that a parent could be criminally prosecuted in this situation.  Second, similar to the witch in “Hansel and Gretel,” the parent is purposefully attempting to plump the child up.  Few would argue that parent should not be criminally responsible; however, what of the third situation, somewhere between the first and second situations, in which a parent simply allows the child to eat whatever the child wants and does not encourage physical activity?

The arguments against prosecution in the third situation:

1.      Prosecution would stigmatize those who are morbidly obese.

2.      Prosecution of the morbidly obese would focus on poorer communities, which are statistically more likely to be morbidly obese.

3.      It is well recognized that morbid obesity is unhealthy, therefore it seems unlikely that punishment will prevent future cases of morbid obesity, and tax money spent to prosecute would be better spent on rehabilitating the child and/or parent.

The arguments for prosecution:

1.      Prosecution would occur only in extreme circumstances in which the child’s health has been seriously jeopardized, not for simply being overweight.

2.      Hypothetically, if the same injury (i.e., shortened life span or damage to body) was applied to another age group (such as the elderly) through another source of the injury (such as a car accident or injections), criminal punishment would be expected.

3.      The stigmatization of an extraordinarily unhealthy condition should not be a concern of the state in protecting the health of child.

4.      Many crimes disproportionately occur within poorer communities.

5.      The child has been injured and, even with rehabilitation, will be permanently scarred, physically and psychologically, for life.

It can be argued that a parent cannot control everything that the child eats or does; however, if, as Justice Holmes stated, “[t]he law is the witness and external deposit of our moral life,” then it should be a crime, and very well could be a crime in Pennsylvania, to provide such little control over a child that he or she is not expected to live to the age of thirty.

[Update] California and Texas have filed criminal charges against parents allowing their children to be morbidly obese:

"...[I]n the California and Indiana cases, criminal charges were filed against the parents. It should be noted, however, that in the California case, the charges were ultimately reduced, and in neither the California nor the Indiana case were the parents sentenced to prison. In the California case, the mother was originally charged with felony child abuse and endangerment, but she was eventually convicted only of misdemeanor child abuse through inaction. In the Indiana case, Cory Andis' parents plead guilty to criminal child neglect. The court ordered Cory's mother to serve one-and-a-half years probation and perform 100 hours of community service for endangering Cory's health. Cory's father was placed on probation for three years."

See, https://www.cwla.org/voice/0807obesity.htm