In re Unborn Child of Starks

• Decision Date: 23 January 2001
• Docket Number: No. 94,104.,94,104.
• Citation: 18 P.3d 342,2001 OK 6
• Parties: In the Matter of the UNBORN CHILD OF Julie STARKS. Amended In The Matter of J.B.C., Julie Starks, Appellant, v. State of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

18 P.3d 342

2001 OK 6

In the Matter of the UNBORN CHILD OF Julie STARKS.

Amended In The Matter of J.B.C., Julie Starks, Appellant, v. State of Oklahoma, Appellee.

No. 94,104.

Supreme Court of Oklahoma.

January 23, 2001.

Barbara A. Teichner, Tulsa, Oklahoma, Michael W. McCoy, Broken Arrow, OK, For Appellant Julie Starks.

James W. Ely, Jr., Assistant District Attorney, Jenny Sanbrano, Legal Intern, Rogers County, Claremore, OK, For Appellee State of Oklahoma.

WINCHESTER, J.

¶ 1 This court retained the instant appeal to settle the first impression question whether a fetus is a "child" for purposes of the Oklahoma Children's Code, codified at 10 O.S.Supp.2000, § 7001 et seq. We are asked to determine whether the trial court committed reversible error by concluding the Oklahoma Children's Code provided an avenue for it to take temporary emergency custody of appellant's fetus and we answer this question in the affirmative. We vacate the order of the trial court and remand with instructions to dismiss.

FACTS AND PROCEDURAL HISTORY

¶ 2 On August 23, 1999, appellant Julie Starks and a Jimmy Ravon Cook, by whom appellant was impregnated, were arrested for manufacture and possession of methamphetamine. This alleged conduct became the subject of a criminal case in Rogers County District Court, styled CF 99 325. On the date of her arrest, appellant was approximately seven months pregnant. The trial court set bond for Jimmy Ravon Cook in the amount of twenty-five thousand dollars ($25,000.00) and raised the bond for appellant from that initial amount to two hundred thousand dollars ($200,000.00) on August 24, 1999.

¶ 3 On its own motion and prior to a petition being filed by the district attorney, the trial court brought appellant before it for an emergency hearing during which appellant was without counsel. This emergency juvenile custody proceeding occurred on August 26, 1999. When the proceeding concluded, the trial court took temporary emergency custody of appellant's viable fetus under 10 O.S.Supp.2000, § 7003-2.1. The record reveals that the court took this action based upon its belief appellant's fetus potentially would be harmed if appellant were released from jail, because appellant might engage in an activity that involved methamphetamine. The court minute also reflects that if appellant was released from the Rogers County jail, she "may" be placed in a foster home until the birth of her child. The record establishes that the acts upon which the trial court premised its adjudication of appellant's fetus as "deprived," occurred on the date of appellant's arrest, to-wit: August 23, 1999.

¶ 4 The court denied appellant's Motion to Vacate Emergency Custody Order on August 30, 1999. The juvenile minute order reflects the previous court order that granted emergency custody of the fetus to the Department of Human Services and ordered appellant's placement in foster care if she posted her two hundred thousand dollar ($200,000.00) bond, remained in effect. On that same date, the Rogers County District Attorney filed a petition alleging appellant's fetus was a "deprived child" under the Oklahoma Children's Code.

¶ 5 On September 2, 1999, the court found that custody of appellant's fetus should remain with the Department of Human Services and that if appellant was released from jail, she was to report her whereabouts to child welfare. The court also denied appellant's motion to dismiss.

¶ 6 Following the trial court's refusal to lower appellant's bond, we granted her writ of habeas corpus on September 23, 1999, wherein we found the order that set bond at two hundred thousand dollars ($200,000.00) and ordered appellant's confinement to take place in a secure birthing facility, to be inefficacious and unenforceable as an unauthorized application of judicial force. We left in effect the earlier order of the trial court that set the appearance bond for appellant at twenty-five thousand dollars ($25,000.00).

¶ 7 On September 29, 1999, the trial court held a hearing on the State of Oklahoma's motion to clarify and motion to compel appellant to comply with the court's previous order. At the time of this hearing, appellant still was incarcerated in the Rogers County jail. The record reflects that the trial court continued to order custody of appellant's fetus with the Department of Human Services on an emergency basis. The court also ordered that appellant complete a drug and alcohol assessment within five days of her release from jail, disclose her living quarters for inspection within twenty-four hours of any residence change, submit to random urine analyses as arranged by the Department of Human Services and participate in pre-natal visits at least one time per week.

¶ 8 Appellant's infant, J.B.C., was born on November 2, 1999. On November 3, 1999, the day after J.B.C.'s birth, the court entered an order placing emergency custody of J.B.C. with the Department of Human Services. On November 12, 1999, the Rogers County District Attorney filed an amended petition alleging J.B.C. to be a "deprived child" under the Oklahoma Children's Code, based solely upon appellant's conduct on the date of her arrest, August 23, 1999.

¶ 9 On November 15, 1999, the trial court again denied appellant's motion to dismiss and a jury trial on the issue of deprivation commenced. On November 16, 1999, the jury reached a verdict finding J.B.C. deprived under the guidelines set forth in the Oklahoma Children's Code. The trial court continued to base the adjudication of the deprivation issue on conduct of appellant that occurred on the date of her arrest, August 23, 1999. There was no evidence presented and no allegation made that appellant acted in a manner to cause J.B.C. to be deprived after birth or after the day of her arrest. The trial court issued a Journal Entry of Adjudication filed November 24, 1999, wherein it found J.B.C. deprived and further found efforts to prevent his removal from the home were not made because removal was due to an emergency and was necessary for J.B.C.'s safety and the protection of the public.

¶ 10 On December 13, 1999, the trial court held a dispositional hearing during which it received evidence and testimony. At the conclusion, the trial court ordered J.B.C. to remain in the custody of the Department of Human Services with the mother as caretaker and visitation allowed to the father. At the time of this hearing, the record indicates appellant expressed a desire to move from her aunt's home to another residence. The court did not object to the request, pending approval of her living quarters by the Department of Human Services Child Welfare Division.

¶ 11 On appeal, appellant argues the trial court lacked subject matter jurisdiction to assume custody of her fetus under the Oklahoma Children's Code, codified at 10 O.S.Supp.2000, § 7001-1.1 et seq. She also asserts the trial court lacked personal jurisdiction for all custody orders entered. In addition, she argues the trial court violated her right to privacy and autonomy, substantive and procedural due process, equal protection based on gender and right to travel. She also argues the court violated the separation of powers doctrine and improperly conducted voir dire by rejecting appellant's questions concerning whether potential jurors were predisposed on the issue of pregnant women who used alcohol and drugs.

STANDARD OF REVIEW

¶ 12 The trial court's determination regarding the remedial rubric of the Oklahoma Children's Code is a legal ruling and our review is de novo. "An appellate court claims for itself plenary, independent and non-deferential authority to re-examine a trial court's legal rulings." Manley v. Brown, 1999 OK 79, ¶ 22, n. 30, 989 P.2d 448, 456, n. 30. The sole issue we address on appeal is whether the term "child," as set forth in the Oklahoma Children's Code, 10 O.S.Supp. 2000, § 7001 et seq., includes a fetus. Our determination of this issue is dispositive of the case at bar, and is premised solely upon independent issues of state law and not upon federal constitutional considerations. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

¶ 13 Appellee argues that because appellant's fetus arguably was viable, the state had a duty under the Oklahoma Children's Code to intervene on its behalf to protect it from harm. The state cites no Oklahoma authority, statutory or case law, in support of this proposition. Nor does it provide us with evidence of legislative intent to so interpret the Children's Code. Appellee argues since a fetus may be the subject of homicide and its biological parents may recover monetary damages for its wrongful death, we should afford a fetus the same protection given to a child under the Oklahoma Children's Code. We disagree.

¶ 14 The Oklahoma Court of Criminal Appeals held in Hughes v. State, 1994 OK CR 3, 868 P.2d 730, 736:

" ... we reject the born alive rule and hold that a viable human fetus is a `human being' against whom a homicide as defined in Section 691 may be committed."

The Court in Hughes correctly reasoned medical science may provide proof regarding whether the fetus was alive at the time of a defendant's action and whether the action was the cause of death. 868 P.2d at 732. However, medical science cannot provide evidence regarding whether a fetus might be emotionally, mentally, physically or intellectually deprived within the definitions of terms contained in the Oklahoma Children's Code. Such evidence cannot be obtained until after the birth of a child. 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 set of "human beings" contains at least three subsets, to-wit: adults, fetuses and children, only the latter of which is protected by the Children's Code.

¶ 15 Similarly, our decision pertaining to recovery for the wrongful death of a fetus as discussed in Evans v. Olson, 1976 OK 64, 550...