WhiteCoat

Criminal Charges for Taking Newborn Outside

This story came across my news feed this morning.

The father of a 2 day old infant is being criminally charged by New York prosecutors with child endangerment and harassment because he attempted to take his son outside for “fresh air” and to “look at the moon.”

The story only showed up on my news feed because an emergency physician testified on behalf of the defendant in the case and the term “emergency physician” is one of the keywords on my news feed, but the case also illustrates the point I was trying to make in the post a couple of days ago.

The emergency physician was a family friend and was visiting the family in the hospital when the incident occurred. He testified that he believed it was “fine” that the dad took the infant outside. The incident occurred during January, but according to the emergency physician’s account, the child was “dressed pretty warmly.” Prosecutors alleged that the emergency physician didn’t have the professional experience to know what is in the best interests of a newborn infant.

According to the article, a charge of child endangerment requires that prosecutors prove beyond a reasonable doubt that the father knowingly put his child in a situation where the child was likely to be injured.

The rule appears to be that intentionally taking newborns outside in cold weather – even if warmly dressed – is a crime in New York State.

Appropriate?

 

 

24 Responses to “Criminal Charges for Taking Newborn Outside”

  1. ShortWoman says:

    Ok, so if taking a newborn outdoors in “cold weather” is child endangerment, how exactly is a new parent in January supposed to get the baby home from the hospital???

    I do hope some judge has the good sense to not let this go very far.

  2. DdR says:

    Don’t NY prosecutors have anything better to do than to harass families who are simply trying to go about their lives?

    As to the hospital that filed charges in the first place – someone obviously has an authority complex of some sort.

  3. Antigonos says:

    If it’s “child endangerment” to take a warmly-dressed newborn outside, how do the parents take the child home, usually at 48-72 hours of age?

  4. Ardosa says:

    Better not dicharge any newborns from October through April in anyplace that gets cold! Heaven forbid.

    How idiotic.

  5. ndenunz says:

    There is more to this story I think. Why would he want to take a newborn outside for “fresh air”? The child and mother were bound to be close to discharge time anyway.

  6. LL says:

    There’s more to the story than that. Kennedy took off the baby’s electronic bracelet that matches to the mother, and he tried to walk out with the baby. Now, what if that wasn’t the dad? Add in that he allegedly kicked and assaulted the nurses who tried to stop him, all the while holding a floppy newborn baby, and maybe it’s a little more complicated than just a warm blanket and winter weather.

    • WhiteCoat says:

      I’m sure that they verified it was the dad. A doctor who works at the hospital was accompanying him.

      I’m looking solely at the “child endangerment” charges. What did the father do that “knowingly put his child in a situation where the child was likely to be injured”?
      It’s not like he knew that the nurse was planning to lunge at him in the hallway.
      Does taking the ankle bracelet off meet that criterion?

      • Tarl says:

        You’re mistaken. The whole point was that the nurses did not know he was the dad and he did not have permission to remove an infant from the hospital. And the physician in question wasn’t from that floor, I don’t know if the nurses even knew him.

        For all the nurses knew, this was an abduction.

      • JustADoc says:

        So, once again, what did the father do that ‘knowingly put the child in a situation where the child was likely to be injured’.

        What he did was pick his child up and attempt to walk outside. I miss the part about that that puts the child in a situation where it is likely to be injured.

        Any other charges related to asaulting the nurses or staff may be valid. But the child endangerment seems a stretch.

      • Matt says:

        “I’m sure that they verified it was the dad.”

        Are you? How exactly would you be “sure”?

      • WhiteCoat says:

        “How exactly would you be ‘sure’?”

        Read the article and use some common sense.

        To wit:
        Haydock’s testimony protrayed Kennedy as largely calm, along with that of the station nurses. He also testified that Kennedy received station help in removing Bo’s bracelet, and that a response from the station about needing a bassinet for transporting the baby, which Kennedy retrieved but did not use, made him believe they were then going to go out.

        If nurses are going to help a complete stranger remove a tracking bracelet and help get a bassinet so that a complete stranger can transport a newborn baby outside, then, well, I guess you’re right in your little world.

        I’m sure what really is happening is that the nurses are complicit in a scheme to supply babies to an underground kidnapping ring and that this event blew their cover.

        By the way … how can I be “sure” you’re Matt?
        The answer is that I can’t, but that I rely upon the … tenor … of your comments to come to that conclusion.

        See the pattern?

  7. SteveM says:

    Uh huh. And Charlie Manson was sentenced to life in prison just because he wanted to hang out with some young kids and sing gongs. Much, much, much more to the story than what you presented – information that was readily available in the news accounts.

  8. DefendUSA says:

    Wow. Uh, then I should have been charged for the very same thing, apparently…Is there no end to what others believe is best for yours or my children?

  9. Chris says:

    Normally I’m with you, Whitecoat, but not here. Dad did not just attempt to “take the baby to get fresh air.” Removing the electronic bracelet before discharge, assaulting staff – does it really matter that a hospital doctor was with him? It was an ER doc – nothing to do with the OB/GYN dept or the patient (the baby). Now, having said that, of course a newborn (appropriately dressed and wrapped) can go out in the cold.

    • HFB says:

      Yes, but is he being charged with assault or child endangerment?
      According to the article, it was claimed that staff helped him remove the bracelet at the station and that he had the baby dressed appropriatley for the weather. My son was born on Jan 28th in Chicago and we carried him after my wife was wheeled out the door.
      Assaulting staff? What do you do when someone lunges for your child? Have we all been neutered to the point of inaction?

      Get real! Luciano should have been put squarely on her ass, reprimanded/disciplined and have civil charges thrown at her to boot.

  10. DensityDuck says:

    Some poor unworthy slob mouths off to a nurse = LOL GREYBAR MOTEL

    A doctor does it = OMG HE JUST WANTED TO GO FOR A WALK

  11. WhiteCoat says:

    Mrs. WhiteCoat and I just had a rather long discussion about this (which I won, of course ;-]).

    First, I’m not saying that what the dad did couldn’t have been handled differently and better. I personally wouldn’t take my newborn infant out in the cold for a leisurely walk, but then again, I don’t let my kids watch much TV and they only get to drink soda on rare occasions. Who gets to choose the yardstick by which everyone else’s behavior should be measured?

    Criminal law is based on rules. You break a rule, you get the punishment described in the criminal statute. There is also a concept called “void for vagueness” meaning that a law is not enforceable if it is so vague that an average person wouldn’t know what conduct is prohibited.

    What I am trying to find out is what specific conduct the father committed that warranted child endangerment charges.
    Assaulting a nurse is a red herring. Even if you assert that the dad *planned* to kick a nurse as he was leaving the hospital, then it would be appropriate to charge the father with battery. Kicking a nurse who is lunging for your infant child doesn’t meet the criteria for a charge of child endangerment under the legal requirement cited in the article.
    If it’s 30 below outside and dad is taking junior outside in a wet diaper and a onesie, I’m with you. Child endangerment. Those weren’t the facts in this case, though.

    Where in the statutes does it say that a criminal charge is appropriate if one removes a child tracking bracelet from a newborn in a hospital? Show me the language and I’ll freely admit I’m wrong.

    And another thing – was the nurse charged with assault after she lunged at the father? If not, why?

    Mrs. WhiteCoat asserted that everyone signs an consent when they enter a hospital agreeing to electronic monitoring of the mother and the infant. Therefore, the parents can’t break the agreement. After all, the hospital has no way of knowing whether the father is going to kidnap the child, so the father shouldn’t be allowed to leave with the child.
    My response to that is that the consent is a contract entered into between the guardian of the patient and the hospital. Breaking a contract is generally a civil matter, not a criminal matter (unless that contract is with the government, of course). So again, why the criminal charges?

    My concern is that we point at other people who don’t act the way we believe people should act and say “yeah, arrest them and throw them in jail” – even if those people are not breaking any laws and not acting maliciously – where does it end?
    Where should it end?
    What if it some day happens to you?

    • DensityDuck says:

      “What if it some day happens to you?”

      What if some day you’re an alcoholic who checked himself into a hospital to dry out, and they gave you a few CC’s of Propofol to keep you quiet, and they didn’t bother to look up the effects of reduced liver function on the metabolization of the drug, and between the DT’s and the drug-induced hallucinations you go bonkers and punch a nurse?

      “lol greybar motel”?

      *********

      “Criminal law is based on rules. You break a rule, you get the punishment described in the criminal statute.”

      Yeah, and one of those rules is “up until you sign the release papers, the healthcare professional responsible for care of the newborn is the one who decides what constitutes endangerment”.

  12. Lawyer on the internet says:

    Doc: Bad media reporting here, taking the baby outside is the red herring here. In New York, harassment is a battery without physical injury (meaning a broken bone or stitches). It is a non-criminal offense (like a traffic ticket).

    So here, the nurse or baby were (probably) not hurt, so no assault under NY law. The prosecution theory is likely that by starting a physical confrontation with a nurse while carrying a newborn, he knowingly placed the baby in physical danger (criminal endangerment)

    That said, it is unlikely he will be convicted given the conflicting witness testimony. Sounds like the guy is an a-hole, but the real question for the criminal court is whether he was swinging the baby around like a rag doll. Nurse says yes, his witness says no, that why they have judges.

    • WhiteCoat says:

      Counsel,

      First, it seems from your comment that you agree taking the baby outside in the cold shouldn’t be prosecuted as child endangerment. If the action is a “red herring” then it has no bearing on the charges, correct?

      Lets review the facts.

      We can review the definitions of NY State laws by going to this site: http://ypdcrime.com/

      The crime of “battery” does not appear in this listing of NY criminal statutes, so your assertion that “harassment” is a “battery” in NY State is incorrect. Besides, in all the definitions of battery that I am familiar with, the crime is considered an unwanted “touching”, not an unwanted “injury”.

      The original article on the case is here.
      Another article discussing nurse testimony is here
      The follow up article on the closing arguments in the case is here

      One nurse tried to attempt to prevent the dad from leaving through a doorway. He allegedly twisted the nurse’s arm to get her to release her grip and then went to the stairway door.
      Another nurse lunged at him and attempted to grab the child. He kicked her away.
      The nurse testified that she “saw [the child's] head shaking when the door opened.”
      In her closing argument, the prosecutor argued that the father “was warned to change his plan for moving Bo outside, including an offer from Lane to get in touch with a physician who could decide on whether his request was okay.”
      Finally, testimony from a security guard in the case suggests that the father never even took the child outside after the incident. “Haydock then advised Kennedy to go back to the maternity ward, which brought an end to the commotion.”

      I wasn’t really focusing on the issue of harassment in this post, but since you believe that it is pertinent to the case, let’s look at the definition under NY law.

      The pertinent definition of harassment in the first degree requires that one “repeatedly commit[] acts which places [sic] [another] person in reasonable fear of physical injury”. Harassment in the second degree requires that one, with the INTENT to harass, annoy, or alarm another person … subjects such other person to physical contact, or attempts or threatens to do the same.”

      From the story, there are no repeated acts that the father took. The acts were spontaneous.
      The intent in the father twisting the nurse’s arm seemed to be that she was blocking his egress from the hospital. There is no testimony that he intended to “harass, annoy or alarm” the nurse.
      Similarly, there is no testimony that the father intended to “harass, annoy, or alarm” the nurse when he kicked her. His intent seemed to be to prevent the nurse from grabbing him or his child. Are you suggesting that the father should have just let the nurse complete her lunge and possibly drop the child on the floor instead of blocking her? If it were a stranger on the street grabbing at his child instead of a nurse, you would allege that the father was negligent if he *didn’t* attempt to stop the person from completing the act.

      Please describe what facts support charges beyond a reasonable doubt for the crime of “harassment.”

      The definition of child endangerment in NY is here.
      In this case, the law says that a parent must “knowingly act[] in a manner likely to be injurious to the physical, mental or moral welfare of a child …”
      What did the father allegedly do wrong?
      He removed a tracking bracelet from the child’s leg. Fit the definition? No.
      He dressed the child warmly (undisputed in the articles) and brought the child out in cold weather. Fit the definition? No. Otherwise every parent bringing their child out in cold weather would be brought up on criminal charges.
      So what we are left with is your allegation that by “starting a physical confrontation while carrying a newborn” he is guilty of this crime.
      None of us were there, so we can only go by what is published in the articles. Of course, by Matt’s logic, since we weren’t there, we don’t even know whether this is all just an April Fool’s joke, whether the people were really in the Empire State Building instead of a hospital, whether the father was really carrying a pet iguana wrapped in Lady Gaga’s old meat dress, or whether the nurse briefly turned into a zombie and was then decapitated by the father’s kick resulting in a huge cover up because zombies really inhabit and control New York City. We don’t *know* because we weren’t there.
      In this case, we’re stuck. Let’s assume that the allegations in the newspaper reports are accurate and let’s draw reasonable inferences from those allegations.
      The case shows that one nurse blocked his access to a door. He twisted that nurse’s arm and then appears to have disengaged from that interaction. He then went into a stairwell where a nurse lunged at him and attempted to grab his child as he was leaving. I would hardly consider that “starting a confrontation.”

      And if your argument is that confrontations should not be engaged in when one is holding a child, why weren’t the nurses charged with child endangerment as well?

      In addition, prosecutors didn’t seem to focus on your theory when they allegedly knew all the facts. From the second article:

      Assistant District Attorney Michael Borrelli repeatedly raised the difference in medical expertise between Haydock, an ER doctor, and the nurses who specialize in maternity care. He noted that Haydock was not Bo’s physician and that he did not see his patient chart for that night. Additionally, Borrelli argued that a request for Haydock to see a supervising nurse to get her opinion on the fresh air request when he and Kennedy were still at the station, contradicted his belief that it seemed okay to move the baby after being told to have a bassinet.
      Prosecutors appear to be focusing on the fact that the father wanted to take the child outside as the reason for the endangerment charges.

      Your “rag doll” accusation consistently seems to be a defense used by the nurses to justify why one nurse “lunged” at the father.

      “Haydock also contradicted Luciano’s past account of the baby’s head “violently shaking” around the time Kennedy opened the door, which she testified was her reason for trying to get the baby.”

      Yes, the dad seems like an a-hole. If we criminally charge every person in this country accused of being an a-hole, there won’t be enough prisons to hold all the accused.

      The prosecutors should have actions taken against their licenses for filing this case.

      • still a lawyer on the internet says:

        Hey Doc:
        Thanks for providing the details. However, to say the prosecutors should lose their livelihood for bringing a case based on probable cause is an overstatement. If you pulled the license of every prosecutor that could not prove a case beyond a reasonable doubt – there would be no prosecutors left. If you disagree that the defendant is guilty, or feel the case should not be prosecuted, that is one thing. As a prosecutor you don’t get to pick your cases – they are brought to you by police, citizens, etc. In this case, two nurses – who are generally viewed by juries as credible witnesses – would have been required to provide sworn statements and establish probable cause (required to bring facially sufficient charges). In short their licenses are safe.

        The case is really simple. This guy acted like a self important jerk, who kicked and pushed two people while carrying his infant son. When viewed as a whole, these are not the actions of a reasonable person. I was just a simple country lawyer in my day, but that is how I would present it to the judge. By the way – the reason this is a non-jury trial (elected by the defendant) is that a jury would convict. Testimony from medical professionals is usually found to be credible. Testimony from “friends” is not. People that endanger infants are despised even more (although strangely, less than folks that hurt animals).

        You are taking the position I would if I was his defense counsel – showing that he bundled up the baby to protect him. However, they can’t get around the fact that he then proceeded to push and kick two nurses on the way out the door (knocking one down). Further, it appears there is testimony that the nurse was attempting to support the child’s head (my ragdoll theory).

        Regarding battery, I was only answering your question about why assault was not charged. It’s a quirk of NY caselaw that the charge requires physical injury. The caselaw generally finds Harassment 2nd to be a push, shove, kick or slap, not causing injury. His own lawyer states that he pushed “instinctively.” This is lawyer speak for he did it but didn’t really mean to.

        Again – I stand by my position that taking the child out of the ward is not the issue – it makes a nice headline, but won’t carry the day. It’s a defense tactic to show he was acting reasonably. Setting aside the fact he was going outside, he still acted in a manner that was likely to hurt the child.

        (By the way – this case is extremely over-lawyered, a five day non-jury trial for an “A” misdemeanor case is extremely long, most murder cases in front of a jury would be done in less time. His lawyer is running up the bill with an hour and a half closing statement for a non-jury trial on these facts.)

        My call is that he is convicted of 1 count of harassment 2nd. The judge will split the difference and acquit him of the “A” misdemeanor and one harassment count. (By the way, the harassment count is not admissible in any civil case, because it is not a criminal conviction.)

  13. Ron Miller says:

    I get frustrated by the idea that children are somehow chattel and their parents can do whatever they want with them because, hey, they are the parents.

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