Mom Off Hook for Taking Drugs While Pregnant

     (CN) — A mother cannot be convicted of child abuse for smoking meth during her pregnancy because a fetus is not a child under Michigan law, a state appeals court ruled.
     Melissa Lee Jones gave birth to a baby boy in January 2015. The baby weighed less than four pounds at birth and tested positive for methamphetamine, court records show.
     After the hospital contacted child protective services, Jones took out her IVs and left the hospital with her boyfriend, abandoning the child.
     She pleaded guilty to first-degree child abuse, testifying in court that she last used methamphetamine five days before giving birth, with full knowledge that she was pregnant at the time.
     A trial court sentenced her to three to 10 years in prison, but the Michigan Court of Appeals overturned the conviction Thursday.
     “Defendant argues that the first-degree child abuse statute was improperly applied to her because a fetus is not included within the statutory definition of ‘child,’ and she therefore could not have caused harm to a ‘child’ as required by the statute simply by using methamphetamine during her pregnancy. We agree,” the unsigned opinion states.
     No facts about the mother’s conduct towards her child after the birth were submitted, according to the judgment.
     The panel said it was a matter of first impression in Michigan whether a mother’s prenatal drug use could be considered child abuse.
     Tennessee is the only state with a law specifically criminalizing the use of drugs while pregnant. State high courts in Alabama and South Carolina have interpreted existing child-abuse laws to allow prosecution of drug-using pregnant mothers.
     Michigan precedent establishes that the killing of an unborn child is not a homicide because a fetus is not legally considered a “person,” the appeals court found, and a review of other statutes shows that the legislature has not defined an infant as a person unless he or she is at least partially outside the mother.
     “Because a fetus is not a ‘child’ for purposes of the first-degree child abuse statute, defendant cannot be guilty of first-degree child abuse based solely on the fact that she used methamphetamine while she was pregnant, and the trial court erred by accepting her guilty plea,” Thursday’s ruling states.
     Michigan attorney Tasi Markou with Levine & Levine, who has been following the case, said the appeals court ruled as he expected it would.
     “Michigan does not define a fetus as a child,” so the court simply reviewed Jones’ case for plain error, Markou said.
     “The legislature could add a new law to modify the definition of what a child is. The legislature could choose to do that. Then it becomes a possible claim. Then it becomes more of a constitutional issue,” he said.
     Jones’ attorney Jeanice Dagher-Margosian did not immediately respond Friday to a request for comment.

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