Publisher’s Note: Attorney Charles “Bill” Morrison in our office posted this article on our Ohio Criminal Defense Law Blog on January 9, 2018. The topic of Safe Haven’s Law certainly has both criminal law and family law relevance warranting posting here as well. It is indeed a shame that this legal option is not better publicized! Click here to read more of Bill’s excellent posts.
There has been another high-profile case involving a pregnant teen accused of killing her newborn baby. Now, it needs to be made absolutely clear that this blog is NOT claiming that the teen caused the death of the child. The defendant in this case is claiming the baby was still-born. As we are not privy to the evidence, and she has not been convicted after the state has been put to its proof at a trial, we will presume that the young lady is innocent, as required under our constitution.
However, the linked article mentioned a little-known provision under Ohio law that allows parents of a newborn to effectively give up their child and face no adverse consequences. The theory behind “Ohio’s Safe Haven’s” law is to encourage parents that don’t want or cannot provide for a newborn to voluntarily surrender the child rather than, say, bury the child in the back yard. The statute allows a parent to “voluntarily deliver his or her child who is not older than thirty days, without intent to return for the child, to a person specified in section 2151.3517 of the Revised Code or a newborn safety incubator … .”
Parents Can Deliver The Child Places Such As A Fire Department Or A Childrens Services Agency Under Safe Haven’s Law.
If the statutory requirements are followed, the parents have immunity from prosecution for effectively abandoning their newborn (remember, parents would otherwise have an absolute legal obligation to provide for their offspring, absent a court order reallocating their responsibilities).
More specifically, R.C. 2151.3525(A) provides the following: “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 section 2151.3516 of the Revised Code.”
It is important to note, however, that the immunity is not absolute. If state officials determine (or even believe, really) that the child was subject to any form of abuse or neglect, prosecution can still be had. What provision “(A)” giveth, provision “(B)” can taketh away: “A person who delivers or attempts to deliver a child who has suffered any physical or mental wound, injury, disability, or condition of a nature that reasonably indicates abuse or neglect of the child is not immune from civil or criminal liability for abuse or neglect.”
Large Hole In Statute’s Immunity Provision?
Because “neglect” is not necessarily a very high burden to meet, quite frankly, there is a fairly large hole in the statute’s immunity provision. Let me put it this way, let’s say a 16 year girl gives birth to a newborn and is scared to death. She has hidden the pregnancy from her parents and friends and does not know what to do. Let’s further say that the child was born with some form of medical condition that needs immediate attention in order to prevent death or some injurious consequence, something not that uncommon. Let’s further assume that after much anguish and debate, the young mother delivers the child to the local fire department and drives away one day after given birth, but too late in the game for the needed medical intervention to have taken place.
Because the fire department is one of the approved locations a parent may ‘deliver” a child under the Safe Haven’s Law, the young girl would ordinarily be immune from prosecution. But in our hypothetical scenario, a creative prosecutor could make out a case that the mother engaged in neglect, thus removing her from the immunity provision. Such a scenario could also arise where the child was malnourished; remember, the mother would have 30 days to effectuate the surrender. What if she was without formula and could not successfully breast feed for a few days before delivering the child? The statute doesn’t require much by way of injury to remove immunity. “Any” injury or condition that “reasonably” indicates neglect would suffice.
Young Mother’s Should Taken Advantage Of Safe Haven’s Law
All of this is to say that it is important for more Ohioan’s to know about Safe Haven’s Law and to advocate that young mother’s to take advantage of the Safe Haven’s Llaw when applicable. But, a young mother also needs to be cognizant that there is not absolute immunity. If the state of Ohio determines that the child has suffered an injury that indicates neglect (would dehydration suffice?), she can then be prosecuted. Would a prosecutor initiate such a case? One would hope not, but then again, ridiculous prosecutions abound on a daily basis all across this country.
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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.