A King County judge has denied a request by prosecutors for a court order to prevent a pregnant woman, already convicted of starving one of her children, from having contact with her newborn child when the baby is born.

A King County judge has denied a request by prosecutors for a court order to prevent a pregnant woman — already convicted of starving one of her children — from having contact with her newborn child when the baby is born.

Prosecutors sought the rare injunction against 21-year-old Brittainy Labberton, who sat with her arms crossed over her bulging belly, rolling her eyes and shaking her head as Senior Deputy Prosecutor Sean O’Donnell told the court Thursday that Labberton had starved her infant because she was afraid she would become fat. A second child was removed from the home because Labberton threatened to kill her, according to court papers.

Both children were taken into state custody in late 2008. Labberton and her husband, Samuel, 25, are seeking to get them back, her attorney said at a hearing Thursday.

O’Donnell told Superior Court Judge Jeffrey Ramsdell that he believed the third child — due in four weeks — could be in danger if the judge did not order the hospital where the child is born to take the baby away immediately after delivery.

“This is a train wreck; we all see it coming,” O’Donnell said.

The prosecutor noted that Brittainy Labberton was admitted to the hospital earlier this month after failing to eat enough to provide nourishment for her unborn child, according to court testimony.

She has since been released from the hospital. The couple are homeless, a court filing said.

Ramsdell questioned why the case wasn’t being handled before a judge in dependency court, where parenting plans and child-custody issues are normally handled.

A spokesman for Child Protective Services (CPS) said the state agency will not get involved in a child’s welfare until after it is born.

O’Donnell said that a no-contact order involving an unborn baby is uncommon in criminal court, but that it was the only way he knew to ensure that the child would be safe from Labberton.

Request denied

Ramsdell denied the request for a court order but told the couple that they are to report the child’s birth immediately to the state social worker overseeing visitation of their other children. If they don’t, the judge said, they face a contempt-of-court charge when they are sentenced on criminal-mistreatment charges on Sept. 3.

That charge came after their second daughter, born in August 2008, gained only one pound in her first two months of life — prompting authorities to place the child and her then 2-year-old sister in protective custody.

The Labbertons both pleaded guilty and face up to a year in jail for the gross misdemeanor.

According to charging papers, Labberton was depressed, suicidal and homicidal after delivering her second child in August 2008 and failed to adequately feed her. After the child was removed from their Bellevue home and began to gain weight in foster care, the couple told authorities they feared she was becoming “fat.”

Labberton, who according to court papers filed in January, was 5-foot-5 and weighed 90 pounds, complained to CPS that she didn’t want her children to be fat. She told the social workers that her husband, who was 6 feet tall and weighed 180 pounds, had a weight problem.

Regular visits halted

The Labbertons were allowed regular visits with their daughters until January 2009, when a laboratory test indicated that the younger girl had been fed a laxative, according to CPS. The girl had diarrhea after a visit with her mother, court paperwork said.

After that, Brittainy Labberton was not allowed to prepare her daughter’s bottles without supervision, court papers said. The two girls remain in state custody, and the couple is allowed twice-weekly supervised visits, CPS said.

Unusual case

University of Washington law professor Mary Fann said in an interview: “This is quite an unusual case and unusual cases call for creative approaches to protect a potential victim’s safety.”

She added that the case creates a “weird juncture” for the courts and state agencies who normally handle child-welfare cases.

“The usual state institutions are looking at each other saying, ‘Who has jurisdiction in this case?’ “

Thomas Shapley, spokesman for the Department of Social and Health Services, which oversees CPS, said Thursday that the state will not be involved in the case until the child is born and a referral is made.

“If there is a referral or someone notifies us of a potential safety risk to the child, we can become involved,” Shapley said.

Information from The Seattle Times archives is contained in this report.

Jennifer Sullivan: 206-464-8294 or jensullivan@seattletimes.com