But Are Some Mothers And Fathers Still Subject To Criminal Prosecution Under The Safe Havens Law In Ohio?
Early last month, there were a few news stories focusing on what is often referred to as Ohio’s Safe Havens law. For instance, follow this link to a story about the law’s recent use in the Miami Valley.
The primary purpose of the statute is to allow mothers and fathers the opportunity to safely surrender a newborn baby to certain types of professionals with absolutely no questions asked. That’s right; parents of a newborn baby may simply drop-off their child with certain individuals, such as a hospital worker, without having to provide their name, the baby’s name, an address, or any other identifying information. Safe havens laws (also known in some states as “Baby Moses laws”) are statutes in the United States that decriminalize the leaving of unharmed infants with statutorily designated private persons so that the child becomes a ward of the state.
The parents may decide, if they so choose, to provide a medical history for the child, but they are not required to utter a single word or do anything more than hand the baby over. Revised Code Section 2151.3524 states in relevant part: “A parent who voluntarily delivers a child under section 2151.3516 of the Revised Code has the absolute right to remain anonymous … A parent who voluntarily delivers a child may leave the place at which the parent delivers the child at any time after the delivery of the child.”
Perhaps the most important aspect of the Safe Havens law, however, is that the parents of the newborn baby will not be subjected to criminal prosecution, which would ordinarily be appropriate when you have a deserted child. Under Ohio law, all natural or adoptive parents of minor children have a legal obligation to support and provide for their children’s basic necessities, such as housing, food and medical care. If the parents fail to do so, they can and often are prosecuted for any number of crimes, including child endangering or criminal nonsupport. In contrast to this general proposition, Ohio’s Safe Havens law explicitly states that “[a] parent does not commit a criminal offense under the laws of this state and shall not be subject to criminal prosecution in this state for the act of voluntarily delivering a child under [the Safe Havens law].” In essence, Ohio’s Safe Havens law is just about the only exception to the general rule that parents must provide for their kids if they are capable.
The policy behind granting immunity to parents who willingly decide not to support their children is that society would prefer newborns receive all necessary care if the parents feel unprepared or unable to do so, rather than expose the children to dangers that may only be discovered over time and, perhaps, too late. In short, the policy goal of having supportive parents is trumped by the policy goal of protecting very young children. It might very well be one of the more difficult decisions a parent has to make, but the theory is that immunity will help nudge parents to put the well-being of their child ahead of their desire to be parents. Moreover, the law facilitates early identification of at-risk children at a time when they are most vulnerable.
However, the law is not designed to allow just any person to simply drop a child at the hospital doorstep when he or she determines that exceptional childrearing is not necessarily their strongest attribute. There are significant limitations to the law; and if a parent’s actions fall outside the scope of the law’s protections, they will be subject to criminal prosecution, even if surrendering the child is actually in the best interest of the baby. We will now address some of these limitations by looking at the actual text of the statute.
What Are The Limitations For Safe Havens Law Under The Ohio Revised Code?
According to Ohio Revised Code Section 2151.3516, which can be considered the heart of the Safe Havens law, the following persons, while acting in an official capacity, are authorized to take possession of a child who is thirty days old or younger if that child’s parent has voluntarily delivered the child to that person without the parent expressing an intent to return for the child:
- A peace officer on behalf of the law enforcement agency that employs the officer;
- A hospital employee on behalf of the hospital that has granted the person privilege to practice at the hospital or that employs the person;
- An emergency medical service worker on behalf of the emergency medical service organization that employs the worker or for which the worker provides services.
A quick read of that subsection shows that the classic movie scene in which the nun opens the majestic doors of the local church and picks-up the newborn lying on the doorstep does not qualify. The baby may only be surrendered to a police officer, a hospital employee or an emergency medical worker. Further, there is a clear limitation as to the amount of time a parent has to decide whether or not to surrender the baby: 30 days. If the child is even thirty-one days old, the parents may not take advantage of the law’s criminal immunity and anonymity benefits.
Finally, if the parents demonstrate any intent to return for the child at a later time, the child will not fall within the purview of the Safe Havens law and will simply be treated like any other neglected or dependent child. The parents must have relinquished all intention of raising the child at the time they make the decision to surrender it to one of the eligible recipients. This leads to the logical follow-up question, “what if I change my mind?” Well, the law does not prohibit a parent from later petitioning the juvenile court for custody of his or her surrendered child. However, that parent will face a significant uphill battle. Revised Code section 2151.3521 states that a Court shall apply a “rebuttable presumption that it is not in the child’s best interest to return the child to the natural parents.” This means that if parents later decide to litigate the issue of custody, they will bear the burden of overcoming the presumption that the child should not be placed in their custody. Therefore, if a parent makes the decision to surrender his or her baby under the Safe Havens law, that parent needs to be absolutely sure about that course of action as the chances of regaining custody are fairly slim.
To learn more about this law, here is the link to the Safe Havens law website sponsored by the Ohio Department of Job and Family Services. Here is a Lucas County Children Services video that is helpful suggesting alternatives and other resources to consider other than surrendering your baby.
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Charles W. Morrison
Charles "Bill" Morrison is Of Counsel with Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues and the managing editor of the Ohio Criminal Defense Law Blog. He is also a member of the Association of Ohio Criminal Defense Lawyers.