Criminal Liability For Sending Artyom Back?

Whether it was immoral to send Artyom -- alone -- back to Russia is a pretty easy question. It is.

But was it criminal? Is Sheriff Boyce of Shelbyville, Tennessee right when he says,"This is a touchy deal and I'm not sure if anything illegal has been done or not"? And does the question turn on whether Artyom is a U.S. citizen, as Bob Tuke, a Nashville attorney and member of the American Academy of Adoption Attorneys, opines? And does it matter whether the adoption was final?

OK, before I try to answer those questions, a few caveats: I am not licensed to practice law in Tennessee. Or in Washington, D.C. Or in Russia. Nothing I say here is intended as legal advice that anyone should act on. Please consult your own attorney before taking any action. Any opinion offered here is, as always, solely my own, and not that of my employer. My conclusions are based only on the facts as have been reported by the media. There. That should do it.

Oh, and maybe one other warning is called for -- I've really let my real law geek run free on this post!

Let's do the low-hanging fruit first. The citizenship thing -- does it matter? Artyom is very likely an American citizen. A child adopted internationally by an American citizen parent (by both parents if a married couple is adopting), where the adoption is finalized in country, becomes a U.S. citizen automatically upon crossing through immigration at the point of entry into the United States because of the Child Citizenship Act of 2000. But it is apparently possible to simply gain legal custody in a Russian court, rather than finalize the adoption in Russia,and have to finalize the adoption in the U.S. If this is what happened here, then Artyom is not a U.S. citizen.

But does it matter? Think about this for a minute -- do you really think this would be OK if the child wasn't a U.S. citizen? If my nephew from France visited me for the summer, could I abuse, neglect, or abandon him and say, "It's OK, he's not a U.S. citizen!" Ridiculous! Whether Artyom is a U.S. citizen is irrelevant when it comes to legal charges in the U.S.

Suppose the adoption wasn't final? Would that make a difference here? NO! If a child is in your custody and care, you cannot abuse, neglect or abandon the child, even if you do not have legal custody or are not the legal parents. The Tennessee statute below makes it a crime for "any person" to abuse or neglect a child in subsections (a) & (b); only the endangerment subsection (c) applies to a parent or custodian, defined as "the biological or adoptive parent or any person who has legal custody of the child." Seems clear that the mother here is either an adoptive parent, having finalized the adoption in Russia, or has legal custody of the child under a Russian court decree. So even subsection (c) would apply.

If the abuse/neglect/abandonment is an act of ommission -- the failure to do something -- instead of commission -- affirmatively doing something -- the mother might try to argue that she does not have any duty to act on the grounds that the adoption isn't final. In the U.S., there is no general duty to care for other people; the typical law school example is that a stranger can watch a child drown in a shallow pond and do nothing, and won't incur criminal liability. In the U.S., we only have a legal duty if there is a special relationship (ex: parent/child) or a contract (ex: lifeguard) or a statute giving rise to a duty (ex: injury to the elderly).

But a duty of care can also arise from taking on the care of someone else, even if no special relationship/contract/statute created a duty. Even if there is no final adoption or legal custody order, and nothing giving the mother an obligation to care for Artyom through contract or statute, she has assumed that duty anyway, and the law would recognize the existence of a duty of care. So, again, whether the adoption is final is irrelevant to criminal liability.

Those were, believe it or not, the easy issues here! But Sheriff Boyce has a point; it's a complicated deal.

One big issue will be where the wrong occurred, because that will tell us which jurisdiction's law applies. Say, for example, that it qualifies as abandonment, abuse and/or neglect to put a child alone on an international flight with no expectation that the child will return. Did that happen in Tennessee or Washington, D.C.? Or did the abandonment, abuse and/or neglect happen in Russia? These aren't insurmountable problems -- generally when a crime occurs partly in one U.S. jurisdiction and partly in another U.S. jurisdiction, both jurisdictions can bring charges. But it's possible that the crime here, if any, occurred only in one jurisdiction, and it might not be Tennessee. And when it comes to prosecuting U.S. citizens for crimes committed wholly abroad, we presume that "extraterritorality" was not intended unless a statute expressly says so. There isn't a statute that expressly criminalizes child abandonment, abuse and/or neglect committed in a foreign country by a U.S. citizen.

If we say that the crime happened in Tennessee, we might have a problem. Tennessee does not have a statute that criminalizes child abandonment. Child abandonment can lead to the involuntary termination of parental rights in Tennessee, but the definition of abandonment for that purpose wouldn't cover the conduct here (kind of funny that despite what she did, she's still the child's mother in Tennessee!). Tennessee defines abandonment to mean failing to visit and/or support a child for four consecutive months, and further states, “'abandonment' and 'abandonment of an infant' do not have any other definition except that which is set forth in this section, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition."

We'd have to try to bring charges under the basic child abuse and neglect statute (section 39-15-401) which reads:

(a) Any person who knowingly, other than by accidental means, treats a child under eighteen (18) years of age in such a manner as to inflict injury commits a Class A misdemeanor; provided, however, that, if the abused child is eight (8) years of age or less, the penalty is a Class D felony.

(b) Any person who knowingly abuses or neglects a child under eighteen (18) years of age, so as to adversely affect the child's health and welfare, commits a Class A misdemeanor; provided, that, if the abused or neglected child is eight (8) years of age or less, the penalty is a Class E felony.

(c) (1) A parent or custodian of a child eight (8) years of age or younger commits child endangerment who knowingly exposes the child to or knowingly fails to protect
the child from abuse or neglect resulting in physical injury to the child.

(2) For purposes of subdivision (c)(1):

(A) “Knowingly” means the person knew, or should have known upon a reasonable inquiry, that abuse to or neglect of the child would occur that would result in physical injury to the child. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary
parent or legal custodian of a child eight (8) years of age or younger would exercise under all the circumstances as viewed from the defendant's standpoint; and

(B) “Parent or custodian” means the biological or adoptive parent or any person who has legal custody of the child.

(3) A violation of this subsection (c) is a Class A misdemeanor.

I think we'd have problems under subsection (a), unless we can show that Artyom suffered an actual physical injury from the conduct. Although “injury” is not defined by statute, Tennessee courts have said that the definition of “bodily injury” in another statute is instructive. Bodily injury is defined there as follows: "a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty.” Going on "mental faculty" is a possibility, but a harder sell than physical injury for a number of reasons, including proof, possible pre-existing mental disability, etc. Still, seeing the photos of that obviously exhausted, befuddled boy after that long flight might persuade a jury of injury. But is sending a child alone on a long flight treating him in such a manner as to inflict injury? A lot of parents who send a child alone on an airplane to meet a noncustodial parent or relatives would say no. Of course, this mom sent the boy to be met by a total stranger -- if that stranger had abused the boy, that might be different. But luckily for the boy, the person turned out to be trustworthy. One thing that makes this case different is that the mother never expected the return of the child, which would make a difference in an abandonment case, but probably not in an abuse and/or neglect case.

And according to case law interpreting this statute, a conviction under subsection (b) can't be sustained unless there is an actual, deleterious effect or harm to the child's health and welfare -- the mere risk of harm is insufficient to support a conviction. Part of what's so shocking here is what could have gone wrong in sending the boy to a total stranger alone on an airplane -- he could have been abused by a stranger, he could have become lost, he could have been kidnapped. But those things didn't happen, and risking the child's health and welfare doesn't count as abuse under this statute. So the argument would have to be that sending the child alone on an international flight adversely affected the child's health and welfare.

Subsection (c), with the focus on child endangerment, seems on the surface to be the best possibility -- knowingly exposing the child to or failing to protect the child from abuse or neglect resulting in physical injury to the child. But again, this subsection requires a showing of actual injury, not just a risk of injury.

Sooooo, charges against the mother in Tennessee based on putting the child, alone, on an international flight, to be picked up by a stranger, and with the expectation that the child would not return to her custody, would be difficult. I can't say it's impossible, but it will depend quite a bit on how the prosecutor and the judge interprets the law, and whether there's evidence of physical injury.

An adoptive mother said this in a blog post at the Daily Beast:

There are more than 2 million adopted children 18 and under in the U.S., 13 percent of them foreign born. These children are no less a part of their families than children who were conceived naturally, or through in-vitro fertilization, or born using surrogate mothers. Their parents should be treated, legally and otherwise, just like any parent. So I hope the Hansens are charged with abandonment. But most of all, I hope that Artyom, and all children everywhere, end up in families that believe with all their heart that the kids are really theirs.

I think we can all agree with this. But unfortunately, treating ALL parents the same in Tennessee includes the possibility that the Hansens committed no crime.