Crime, Kids

Criminally Yours: When Abandoning Your Child Is Legal -- A Christmas Tale

Where is the line between safe-haven abandonment and full-out child neglect or abuse?

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I grew up Roman Catholic, lived in Rome for many years, and have seen enough presepios (nativity scenes) to fill a small museum (they actually did fill a small museum). So I was intrigued by the story of the newborn found last month wrapped not in swaddling clothes but in a purple towel, umbilical cord still attached, carefully placed inside a manger scene in a church in Queens.

Imagine the shock of the custodian as he went about his business sweeping the church floors then heard the cries of baby coming from the creche he’d set up earlier that morning.

It was a miracle, some parishioners said. Others interpreted it as child abandonment and thus a criminal act. So where is the line between safe-haven abandonment and full-out child neglect or abuse?

We saw the case a few years back of a Danish couple in New York City who left their sleeping toddler in a stroller just outside the cafe window where they ate. They hadn’t abandoned the child and she was constantly in their view, but nonetheless they were arrested and prosecuted for child endangerment.

In the Queens case, however, the mother is safe. Although police have identified the woman who left her baby in the manger, she will not be prosecuted.

Why? She is protected by the Abandoned Infant Protection Act, colloquially known as the safe-haven or Baby Moses law that decriminalizes the abandonment of an infant up to 30 days old if left in a safe place. Such places includes hospitals, police stations, firehouses, and yes, churches.

The New York law originally permitted the safe abandonment of an infant only in the first five days of life, but in 2010, the time limit was extended to 30 days in order to include more babies and give more overwhelmed parents an out.

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All 50 states have similar statutes enacted to promote the public policy goal of infant safety over say, infanticide and abortion. In most states the abandonment can be done anonymously — no strings attached, no questions asked. Although the person who abandons the child is supposed to alert some authority to guarantee the child will be quickly found.

Apparently the first state to pass such legislation was Alabama in 1999 following a string of infanticides. Since the law’s passage, that number has dropped.

Nebraska had a problem with its law by not defining child narrowly enough. According to news reports, over a four-month span, parents dumped 35 teenagers in hospitals hoping to be covered. The state later refined the law to include only infants up to 30 days old.

It’s theorized that the woman in Queens, seen on video going into the church with what appeared to be a bundle then leaving moments later empty-handed, knew the church well. She knew it was well-tended, had a thriving parishioner base, and that the child was likely to be found within a short time and cared for appropriately.

It’s hard to imagine what it took for that mother to abandon a child so fragile and so new in an empty church. But for once, the law did not punish (as it does in most cases), it protected.

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Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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