Handle with Care: How to Deal with Unsupervised Children
Suppose you or someone on your staff notices the young son of a resident riding his bike around your parking lot with no adult in sight. Should you scold him and send him home? Ignore him? Find his parent or guardian and lecture them?
Dealing with unsupervised children poses a real challenge. In the scenario above, suppose the little boy is seriously hurt and you are accused of negligence. Or he injures another resident and you are held liable. There are legal as well as practical aspects to how you should handle such situations.
“There is a fine line,” says California attorney and fair housing expert Martin S. Snitow. “The parents have the basic responsibility to supervise their child. They could be cited or lose the child if they are negligent. But if there is a foreseeable danger to the child, you have some obligation to step in.”
First, Be Fair
Most reasonable people would not simply stand by if they see a young child in potential danger. But people also don't want to face possible legal action if they intervene. Some site owners or managers may be tempted to try to head off problems with children before they occur by imposing limitations on where families with children may reside. But that's a practice that will get you in hot water with fair housing regulations.
Let's say you decide to keep families with children out of the units at your site that have balconies because there's a danger that a child could fall off the balcony. That may seem to be a reasonable step to protect your youngest residents. But such a move is not legal, Snitow explains. “You would be guilty of ‘steering’ and you can't do that,” he says. “You are discriminating against families with children.”
You can establish rules at your site that address legitimate safety issues, but they have to be what Snitow calls “the least restrictive.” For example, if you want to try to prevent the problem of small children riding bikes in your parking lots, you could post signs that say, “No bike riding is permitted in the parking lots.” Such a rule doesn't single out just children; it means that no one is allowed to ride a bike in the parking lot. You are addressing a safety issue in the least restrictive way.
“Adults can get hit riding a bike in the parking lot,” Snitow says. “Ask yourself what is reasonable in the circumstances. Such rules have to be justified and tailored to the immediate problem.”
Unsupervised and Unsafe
Even though, as Snitow points out, the basic responsibility for supervising a child lies with the parents, you should not simply ignore an unsupervised child who is at risk. If the child does get hurt, you can't simply point a finger of blame at the parents. In most places, the law expects that you will take reasonable steps when you see an unsupervised child at risk. Placing blame on the parents for inadequate supervision is not likely to be a sound defense should you become involved in a lawsuit. “What is your duty? That depends on the state you're in,” Snitow says. “In most places, though, there is a duty if there is foreseeable harm.”
The best approach when you encounter an unsupervised child is to take several steps that not only demonstrate you are acting responsibly—thereby supporting your defense if you are faced with legal action—but also could help prevent injury or harm to a child.
Here are the steps you should follow:
If the child is in immediate danger, take the child home. Approach the child in a friendly manner and confirm first of all that he or she lives at your site. Snitow suggests asking questions such as “Do you live here?” and “Who are your parents?”—unless you already are certain of the child's identity. You also could ask, “Do your parents know where you are?” or “Do your parents know you are out here riding your bike?” Once you establish where the child lives, take him or her home. “But if the child is not in danger or says his parents know what he is doing, first talk to the parents,” Snitow says.
Communicate concern to the parents. When you hand the child over to the parent(s) at home, express your concern for the child's safety. Focus on the specific incident that you observed and indicate your desire to make the parents aware of what the child was doing. Do not lecture the parent or be confrontational in any way. “Don't put yourself in the position of appearing to tell them how to raise their child,” Snitow advises.
Put your concerns in writing. Snitow says it's always a good idea to have a written record of such an incident and your handling of it. You can write a letter to the parents reiterating your concerns and emphasizing your hope that it will not happen again.
Tell the parents exactly what you observed. For example, you might state that “your child was riding his bike in the parking lot unsupervised.” Snitow says to be sure to include the day and time of the incident. State that you wanted to bring the incident to their attention because of the possible danger and risk of injury to the child. Again, emphasize your concern for the child's safety. Do not critique the parents' care or supervision of their child, Snitow stresses.
Don't suggest that the incident presented a hassle to you or your staff. Also, don't imply that you had to waste your time returning the child home and then following up with the parents. Such language could easily be viewed as discriminatory towards families with children, and be a violation of fair housing laws.
Make it clear that this is a serious matter. Advise the parents that if the situation occurs again, you may need to take other action, such as contacting social services and terminating their lease.
Invite the parents to call you. Or invite them to stop by your office to discuss any concerns or questions.
Go to the next level if necessary. Putting your concerns in writing to the parents may be enough to prevent any future incidents. But if the problem continues and you see no indication that the parents are taking responsibility for their child, you will need to take further action. Call the appropriate local social services or child welfare agency or the police. Be sure to keep a record of any calls that you make, the names of the people you talk to at the agency or police department, and what they advise you to do.
Consider eviction. Do this only as a last resort and only after talking to your attorney. If the situation warrants a call to social services or the police, their investigation and action plan could take some time. If, in the interim, the child continues to be seen around your site unsupervised—and is still at risk—or the parents become disruptive in any way as a result of your actions, eviction might be an option to consider.
You could have grounds for eviction based on several HUD rules and regulations. If the child's unsupervised wanderings affect other residents or cause them injury, the residents' right to “quiet enjoyment” of your site, as specified in the HUD model lease, is compromised. The lease also says that residents must not disturb the rights or comfort of their neighbors. If the unsupervised child causes property damage—and you can prove that he or she caused it—that could contribute to the grounds for eviction. Also, residents who neglect their children are probably breaking the law and are certainly endangering the children's health or safety. Check with your attorney about possible eviction in such a situation and the grounds on which you should base it.
Snitow advises against using the threat of eviction to deal with cases of unsupervised children. “I would not recommend threatening anyone with eviction,” he says. “If you say you will call child protective services and that does not fix the problem, threatening eviction probably won't either. Some rent-controlled localities require ‘just cause’ before a tenant can be evicted. Threatening eviction there would not be a good idea. In general, if your attorney recommends eviction, then do that—but don't make threats.”
Duty to Help Prevent Problems
Snitow adds an important reminder regarding unsupervised children. “You can't solve maintenance issues by publishing rules or trying to change the child's behavior,” he says. “That won't help another child or a visitor who encounters the same condition.”
Suppose, for example, that a child is playing unsupervised in a stairwell with a loose handrail. The child falls down the stairs and the parents argue that the fall could have been prevented if the handrail was secure. You could easily be found guilty of negligence. “If there is a condition on the property that presents a danger, just fix it,” Snitow adds.
Martin S. Snitow: Martin S. Snitow Law Corp., 28 N. First St., Ste. 100, PO Box 90278, San Jose, CA 95109-3278; (408) 985-7575; firstname.lastname@example.org; www.msslc.com.
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