HIGH COURT STRIKES RULING IN STATE'S CUSTODY OF FETUS

In a precedent-setting case, the Supreme Court ruled Tuesday that a
judge lacked authority to award the state custody of a fetus whose
mother was jailed on a drug charge.

The case involved the unborn child of Julie Starks, who was seven
months pregnant when she was arrested on a drug charge in Rogers
County on Aug. 23, 1999.

Custody of the fetus was awarded to the state Department of Human
Services, which meant Starks had to keep DHS informed of where she
lived until the child was born.

After her child, a boy, was born, DHS retained custody. She lived
with the child at the home of her aunt and uncle, who were the
child's foster parents, Starks said.

"I'm very pleased, and I hope no other woman in Oklahoma has to go
through it," said Starks, 27, who lives in Catoosa. "I am glad it's
all over."

After her 1999 arrest, Starks was brought before District Judge Dynda
Post for an emergency hearing.

Basing her ruling on the Oklahoma Children's Code, Post took
temporary emergency custody of Starks' viable fetus, the Supreme
Court said. Later, the district attorney filed a motion saying the
fetus was a "deprived child" under the Children's Code.

Post ruled on Sept. 2, 1999, that custody of Starks' fetus should
remain with DHS, and that Starks, when released from jail, would
report her whereabouts to child welfare.

"In essence, you are giving the state custody of the mother, and that
was the problem with it," said Barbara Teichner, a co-counsel for
Starks.

Starks was released from jail after her bond was reduced by the state
Supreme Court from $200,000 to $25,000 before the child's Nov. 2,
1999, birth.

Post placed the child in DHS custody with Starks as caretaker and
visitation allowed to the father, the opinion said.

Tuesday, the Supreme Court said the Children's Code has no provisions
that would authorize Post to award custody of the fetus to the state.

"We're very pleased. We think the court made the right decision,"
Teichner said. "I think the court realized how inappropriate the
lower court decision was. It was an abuse of the judicial process."

DHS custody of the child recently ended, said Michael W. McCoy,
co-counsel with Teichner.

Starks was arrested in 1999 with Jimmy Ravon Cook, the child's
father, for manufacture and possession of methamphetamine, the
Supreme Court said.

Drug tests performed on Starks before and after her son's birth were
negative, Teichner said. A drug test performed on the child also was
negative.

"There was never any evidence she used drugs," Teichner said.

Starks later pleaded guilty to a lesser drug charge and received a
deferred sentence, Teichner said. If she doesn't get into trouble
again, her record will be expunged.

The sole issue in the appeal was whether the term "child" in the
Children's Code includes a fetus, the Supreme Court said.

The state maintained that because Starks' fetus arguably was viable,
the state had a duty under the Children's Code to intervene on its
behalf to protect it from harm.

It cited no Oklahoma authority, statutory or case law in support of
this, the Supreme Court said.

The state also argued that because the fetus may be the subject of
homicide and its biological parents may recover monetary damages for
its wrongful death under Oklahoma law, the Supreme Court should
afford the fetus the same protection given to a child under the
Children's Code.

The Supreme Court disagreed.

"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
high court said.

"The Legislature uses 'fetus' to denote an unborn human being and
'child' to denote a born human being. It does not consider the terms
to be interchangeable," the Supreme Court said.

The court said 16 other states prohibit intervention by the state in
similar cases.