As a guardian ad litem (GAL) and domestic relations mediator in New Mexico, I take special interest in unusual court cases involving children, even when not precisely within my bailiwick. In State v. Gonzales, 2011-NMCA-081, the New Mexico Court of Appeals has ruled that criminal negligence that endangers the public at large--such as driving will intoxicated--and results in injury or death of a child cannot generally support a conviction for negligent child abuse by endangerment (NMSA 30-6-1(D))(1)).
Rather, to support a conviction child negligent child endangerment, there must be "a discernible risk of danger to a particular child or particular children," and the defendant "must be aware of a particular danger to the identifiable child or children when engaging in the conduct that creates the risk of harm."
In this case, the defendant sideswiped another car while intoxicated, killing two minors riding in that other car. Defendant's conviction was reversed because the defendant "was not proven to be aware of the danger to the particular children who were the victims of her drunk driving."
This situation contrasts to the situation in which a defendant drives while intoxicated with children in the car with the defendant, and has an accident resulting in death or injury to the child passengers. In that case, the defendant would have knowledge of "the particular danger" to the "particular children."
Although the decision somehow sits wrong at first blush, I think that is the result of "passion and prejudice" concerning injury to a child. This is particularly true since the State failed to also charge and try the defendant for run of the mill vehicular manslaughter, and the erroneous conviction for negligent child endangerment barred subsequent retrial for vehicular manslaughter under "double jeopardy" principles.
However, divorcing passion from analysis, it is clear the legal conclusion was correct. Although the defendant could reasonably expect to injure someone, there was no reason to anticipate he or she would injure a child and thus be liable for child endangerment.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
