Oklahoma Criminal Court of Appeals Decides Influential Child Neglect Case

Tracy Tiernan - June 7, 2021 - Criminal Defense

The Oklahoma Criminal Court of Appeals decided the case of State v. Allen in May 2021 and made some notable decisions about how the state handles child abuse laws. A conviction of this nature can carry substantial penalties; the following are some important details about this case.

The Facts of the Case

Oklahoma convicted Kelvin Wayne Allen of child neglect and conspiracy to commit child neglect. The state also charged Tami Leann Ware with the same criminal offenses. Allen and Ware were accused of exposing their child to the use and possession of illegal drugs. Allen is the child’s father and lived with Ware while she was pregnant.

During the case, Ware admitted that she pretended that she was not pregnant so she could continue using meth on weekends. Ware also stated that she had not intended to keep the child. Allen purchased the drugs and the couple routinely ingested methamphetamine. Ware is reported to have ingested meth as close as a few days before she gave birth. 

In 2017, Ware gave birth to the couple’s child and authorities were promptly contacted because the blood of both parents tested positive for meth. Ware stayed at the hospital for five days during which time she experienced symptoms of drug withdrawal. The State Department of Human Services placed the child in protective custody before she left the hospital. When interrogated by law enforcement, Ware stated that she did not want the child. 

In response to these charges, Allen and Ware began by filing motions to quash these charges based on the argument that an unborn fetus was not a “child” who was subject to protection under the child neglect statute. The District Court judge in the case granted these motions because he also found that a fetus was not a “child” subject to protection under Oklahoma’s child neglect statute. The prosecution subsequently appealed to the criminal court of appeals. The court of appeals ultimately reversed the District Court’s ruling and remanded the case for further proceeding.

The Decision Behind the Court’s Ruling

Oklahoma law states that child neglect includes the malicious or willful neglect of a child under 18 years of age. The primary method of interpreted Oklahoma criminal law is to analyze the statute’s intent. The regulation’s intent is to include the protection of a child from child neglect. The court noted that it has previously held that a child several weeks from birth is every bit as vulnerable and in need of protection from neglect as a child one minute after his or her birth. Consequently, the court held that a viable fetus can be the victim of child neglect. 

The Concurring Opinion

In a concurring opinion, Judge Lumpkin noted that while the medical community has various labels for the development of a child in the womb, these labels do not guide the court in applying the state’s criminal law statutes. The court held that an unborn fetus that is viable at the time of injury is a human being that can be subject to state homicide laws. The court in this case consistently applied this fact to the protection of a child from neglect.

The Impact of the Decision

The most direct impact of this decision is that expecting parents who engage in drug use or any other type of behavior can face criminal charges if they end up harming a fetus. 

Speak with an Experienced Oklahoma Attorney

If you or a loved one has been charged with child abuse or neglect under the law, you should not hesitate to speak with an experienced lawyer. Contact attorney Tracy Tiernan today to schedule a free case evaluation.