Colo. judges say state courts lack jurisdiction over fetuses

Saturday, May 24, 2003

DENVER -- Colorado judges can't use child neglect laws to protect fetuses, but they can issue contempt charges against pregnant women, an appeals court ruled.

The court Thursday upheld a ruling by Fremont County District Judge Julie Marshall that dismissed the county's neglect proceeding against a pregnant woman who was using methamphetamine.

The county filed a dependency and neglect petition seeking to intervene to protect the health of the fetus. The petition said the child resided with the mother and was dependent or neglected as a result of the mother's drug use.

Marshall agreed with the mother shortly before the baby was born that the court had no jurisdiction and dismissed the county's petition.

The ruling did not identify the woman or her child, who was born last summer. The woman's attorney did not immediately return a call.

A 1923 state law defined child as a person under 18 years old. For dependency and neglect matters, the definition extended to the time of conception and through pregnancy. The law was amended in 1967 to define child simply as a person under 18 years old.

The ruling said the 1967 change had the effect of applying dependency and neglect petitions to a child only after birth.

Nothing else in state law can expand the definition of child for dependency and neglect proceedings to include a fetus, the ruling said.

"There are no remedies in the (Colorado Children's) Code appropriate to an unborn child or designed to restrict the conduct of a pregnant woman," the ruling said.

The appeals court said a contempt charge is the only remedy Colorado courts have to punish pregnant women who ignore a court order to stop taking illegal drugs or engaging in other harmful activity.

Most state courts around the country also lack jurisdiction in dependency and neglect proceedings involving a fetus, the court said.

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