December 01, 2016

Parent Who Departs from Child Does Not Abandon Child under Criminal Statute

Emily Peeler

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

State v. Stephenson, 2016 WL 5385848 (N.M.).

After leaving two-year-old son in his room overnight to sleep, parents discovered serious injuries to his legs from being pinned between bed and dresser. The New Mexico Supreme Court overturned the defendant mother’s conviction for abandonment of a child resulting in great bodily harm, finding that simply departing from a child does not violate the statute unless it is clear at the time of departure the child’s well-being is at risk. 

The defendant, Jennifer, placed her two-year-old son in his room at bedtime and locked the bedroom door. Around 2 a.m., the father arrived home from work and asked Jennifer to get him food. He checked on his younger daughter, but not his son because he assumed he was sleeping. Both Jennifer and the father went to bed, not leaving the apartment. 

In the morning, the father woke and heard the two year old whimpering. He found his son with his legs pinned between a dresser and a crossbar on his bed. His son’s legs were unusually hard with strange marks. Jennifer took him to the hospital immediately and it was determined he suffered from compartment syndrome, which required surgery to correct. As a result, Jennifer’s son required a walker for a period and his legs would be disfigured for the rest of his life.

The doctors reported Jennifer for potential child abuse because they thought her reaction to her child’s serious condition was too casual. Jennifer was indicted for negligently causing or permitting her son to be placed in a situation that endangered his life or health when she should have known the danger involved and acted in reckless disregard for his safety. The jury could not find that Jennifer committed child abuse by failing to act for her child’s welfare and safety, but instead convicted Jennifer for abandoning a child resulting in great bodily harm. The appeals court reversed this decision, finding her conduct did not fall within the meaning of “leaving or abandoning” because she did not leave her son without intending to return. 

The New Mexico Supreme Court ruled on two issues. The first was whether the definition of “leaving or abandoning” was correct. This issue was determined by examining legislative intent and the scope of the criminal statute Jennifer was convicted under. Determining legislative intent includes examining the statute’s purpose and the reasonable and common-sense construction of the language at issue. The statute’s purpose is to protect children from harm. The language at issue includes the words “leave” and “abandon.” According to the court, for purposes of the statute, “abandonment” means a parent intentionally left the child with intent not to return and the child suffered neglect. “Leaving” means a parent intentionally departs from a child leaving them under circumstances where the child could or does suffer neglect. Therefore, a parent, custodian, or guardian who simply departs from a child does not violate the statute unless the child’s well-being is at risk of harm at the time of departure. 

The court next examined whether the evidence was sufficient for a juror to find Jennifer intentionally left her son at a time and under circumstances where his well-being was at risk of harm. The jury was unable to find Jennifer, beyond a reasonable doubt, caused the harm. However, the jury was instructed to consider if Jennifer committed abandonment, which it determined she did. The New Mexico Supreme Court concluded the evidence was insufficient to find that when Jennifer put her son in his bedroom, she intentionally departed from him when his well-being was at risk of harm. The evidence the jury used in its decision was mere speculation that because Jennifer’s whereabouts could not be confirmed until 2 a.m., she may have left the apartment and therefore did not hear screams from her son when his injury first occurred. The court pointed out there was no evidence that Jennifer knew the dresser was wobbly, that he had climbed on the dresser in the past, or that he was in danger if left alone to go to sleep. 

The court emphasized it did not believe the legislature intended to criminalize conduct that creates a mere possibility, however remote, that harm may come to a child, including the act of putting a child to bed at night. 

Several judges who concurred in the opinion believed the evidence was sufficient to convict Jennifer. Evidence showed Jennifer knew about her son’s injury earlier in the night and intentionally left him, thereby “causing” his injury. There was also evidence that the severity of the injury would have required the boy to be pinned for eight to 12 hours.