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.
