In Memory Of:

Benjamin M. Schoonover

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'Deprived Child' Could Include A Fetus Under Bill Passed Wednesday By House

Contact: State Rep. Joan Greenwood
Capitol: (405) 557-7343
Moore: (405) 794-0746

OKLAHOMA CITY (Feb. 28) -- Because of a judicial ruling earlier this year, a state lawmaker has introduced a measure to expand the legal definition of "deprived child" in the Oklahoma Children's Code to include a fetus.

Under another section of House Bill 1185, anyone convicted of making false accusations of child abuse could be compelled to pay a high price

The bill sailed through the House 93-1 Wednesday and was referred to the Senate for consideration. Rep. Joan Greenwood, R-Moore, is the principal author of the bill, and Rep. Raymond L. Vaughn, Jr., R-Edmond, is the co-author. Senate sponsor is Sen. Glenn Coffee, R-Oklahoma City.

House Bill 1185 would add to the definition of "deprived child" any "unborn viable child" whose pregnant mother tests positive for consumption of alcohol or narcotics, and consequently the health or life of the fetus "is determined to be at risk due to the exposure."

"One of the highest purposes we can achieve is the protection of our children, especially the unborn," Greenwood said.

A judge can already order some kind of treatment or supervision for a pregnant woman who abuses drugs or alcohol. HB 1185, though, could potentially enable a judge to have the woman prosecuted and jailed for a crime.

The Oklahoma Supreme Court ruled unanimously Jan. 23 that Rogers County District Judge Dynda Post erred when she accorded a fetus the status of a child in order to protect it from its mother's suspected drug habit.

Julie Starks and her boyfriend were arrested Aug. 23, 1999, in Rogers County, and charged with possession and manufacture of methamphetamine. Bond was set at $25,000.

The next day, though, Post raised Starks' bond to $200,000. And two days later, on her own volition, Post conducted an emergency juvenile custody hearing at which Starks appeared without benefit of legal counsel. The court took emergency custody of the woman's 7-month-old fetus, contending it might be harmed if Starks were released from custody and ingested methamphetamine.

On Sept. 2, 1999, Post ruled that custody of Starks' fetus should remain with the Department of Human Services, and decreed that if Starks was released from jail she was to report her whereabouts to the DHS.

Starks eventually was released from custody after the Oklahoma Supreme Court lowered her bond from $200,000 to $25,000 on Sept. 23, 1999.

However, on Sept. 29, 1999, the trial court ordered the DHS to retain custody of the fetus, directed Starks to complete a drug and alcohol assessment within five days of her release from jail, required her to disclose her living quarters for inspection within 24 hours of any change of residence, required her to submit to random urine analyses as arranged by the DHS and to participate in pre-natal visits at least one time per week.

The child, a boy, was born Nov. 2, 1999. Post ruled Dec. 13, 1999, that the child should remain in the custody of the DHS, with the mother as caretaker. Starks said she lived with the child at the home of relatives.

The Supreme Court declared last month that the trial court "committed reversible error by concluding that the Oklahoma Children's Code provided an avenue for it to take temporary emergency custody" of Starks' fetus.

"Although a fetus may be a 'human being' under Oklahoma's criminal law, it is not a "child" under the Oklahoma Children's Code," the Supreme Court declared in an opinion written by Justice James Winchester.

Under the criminal code, a person can be charged with a felony crime for harming or illegally causing the death of a fetus.

The charges against Starks were dismissed recently and the child was returned to the custody of Starks, who is now 27 and lives in Skiatook. Starks' co-counsel said drug tests performed on the woman before and after her son's birth were negative, and a drug test performed on the baby also was negative.

"Although the Julie Starks case was an extreme example, this type of problem is arising more and more in our society," Greenwood said. "Our children's code should be compatible with our criminal code; harming a fetus by drinking alcohol or using drugs should be just as illegal as beating a child with a belt or a bat."

A Joint Legislative Task Force on Prenatal Addiction and Treatment was created in a House bill enacted last year. The panel has met twice but has not completed its mission and has not submitted a final report.

Besides creating the task force, the legislation also requires an epidemiological and demographic study to assess the prevalence in Oklahoma of pregnant women who abuse drugs or alcohol to the extent that the health or safety of the child is at risk, and to identify existing treatment resources and expenditures.

Another section of House Bill 1185 targets false charges of child abuse levied during a divorce proceeding, an alimony case, an annulment or a child custody proceeding.

The bill provides that in such instances, any person who "knowingly and willfully" makes a false child abuse report or an allegation that the person "knows, or should know, lacks factual foundation," could be "reported ... to local law enforcement for criminal investigation..."

Further, any person who, during a child custody proceeding, knowingly levels a fraudulent claim of child abuse could be fined up to $10,000 for contempt of court and be compelled to pay attorney fees and court costs, as well. In addition, the judge "shall consider the false allegations" in deciding where to place the child who is at the center of the custody battle, the bill provides.


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